Ugger Sain Jain vs Rajinder Jain
2010 Latest Caselaw 129 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
20.
+     FAO(OS) 22/2010

      UGGER SAIN JAIN                                ..... Appellant
                         Through: Dr. Anurag Kumar Agarwal,
                         Mr. Umesh Mishra, Advocates

                  versus

      RAJINDER JAIN                                     ..... Respondent
                         Through: None


       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


                  ORDER

% 12.01.2010

This appeal has been preferred by the appellant-defendant in a

suit for partition filed by the respondent-plaintiff against the refusal of

interim relief claimed by the defendant by filing an application under

Order 39 Rules 1 and 2 of the CPC. The property subject matter of the

partition is situated at A-47, Wazirpur Industrial Area, New Delhi. The

land underneath the said property has been granted by way of

perpetual lease in favour of M/s Punjab Hosiery, of which the appellant-

defendant and the respondent-plaintiff are stated to be the partners. It

is inter alia a term of the said lease that the said plot and/or the

building constructed thereon shall be used for running the industry of

hosiery goods. The appellant-defendant, while filing the written

statement to the plaint, also filed a counter claim inter alia for

permanent injunction restraining the respondent-plaintiff from running

the chemicals business or any business other than the hosiery

business from the portion of the aforesaid property in the occupation.

The written statement-cum-counter claim was accompanied with the

application under Order 39 Rules 1 and 2 of the CPC for so restraining

the respondent-plaintiff during the pendency of the suit.

2. The learned single Judge has, vide order impugned in this appeal,

dismissed the application of the appellant-defendant for interim relief

on the ground that the son of the appellant-defendant was carrying on

business in steel from the part of the property occupied by him. It was

also observed that the son of the appellant-defendant had filed

another suit and in that suit the parties had been directed to maintain

status quo. In the circumstances, no orders were deemed necessary

on the application of the appellant-defendant for interim relief.

3. Learned counsel for the appellant-defendant has contended that

the learned single Judge erred in holding that there was any order of

status quo in the suit filed by the son of the appellant-defendant. It is

stated that there are disputes also between the son of the appellant-

defendant and the appellant-defendant and the only interim order

which has been granted in the suit filed by his son is of restraining the

parties thereto from disturbing the possession of the said son of the

appellant-defendant.

4. The perpetual lease of the land underneath the property does

not create any absolute bar to the use of the said plot or the building

constructed thereon for the purposes of any business other than that

of hosiery goods; it only prohibits use for any other purpose without

obtaining permission in writing of the DDA. Moreover, it also permits

the use of the premises for any other purpose as may be approved

from time to time and/or which may not be a nuisance, annoyance or

disturbance to the DDA or to the persons living in the neighbourhood.

5. We do not find the appellant-defendant to be having a prima

facie case or having made out a case of irreparable loss or injury or of

the balance of convenience being in his favour. Save for a bare plea,

nothing has been stated as to what all businesses are

allowed/permitted to be carried on in the aforesaid property. There is

no plea also as to since when the respondent-plaintiff has been

carrying on the chemicals business in the property. The counsel now

orally states that the said business is being carried on for 3 / 4 years.

No objection is pleaded to have been taken at any earlier point of time

and the said plea was taken as a counterblast to the suit filed by the

respondent - plaintiff.

6. It is also the admitted position that the son of the appellant-

defendant himself is carrying on business other than of hosiery goods

in the portion occupied by him of the same property. The son of the

appellant-defendant admittedly has no right to the property. He claims

only tenancy rights to the property. There is nothing to indicate that

the appellant-defendant had acted in right earnest at the time when

his son commenced a business other than of hosiery goods in the said

property, though the counsel contends that the appellant-defendant

has now taken steps to so restrain his son also.

7. There is not even a plea that the DDA being the superior lessor

of the land has issued any notice objecting to the businesses being

carried on by the respondent-plaintiff or by the son of the appellant-

defendant in the property. In the circumstances, no case of irreparable

injury also is made out. The balance of convenience is also in favour of

the respondent-plaintiff since the running business of the respondent-

plaintiff cannot be injuncted and brought to a complete halt in the

manner sought.

8. No merits are, therefore, found in the appeal. The same is

dismissed. It is, however, clarified that if at all the DDA levies any

damages or charges for unauthorized use of any portion of the

property, the party responsible for such use shall be exclusively liable

for the same.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J JANUARY 12, 2010 pk