Charanjit Thukral & Anr. vs Deepak Thukral & Anr.
2010 Latest Caselaw 3521 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No.967/2010

                                    Date of Decision: 29th July, 2010

CHARANJIT THUKRAL & ANR.                               .....Plaintiffs

                      Through:     Mr.Muneesh Malhotra, with
                                   Mr. Yogender Pradhan, Advocates with
                                   Plaintiffs in person.

                            VERSUS


DEEPAK THUKRAL & ANR.                                      .....Defendants

                      Through:     Mr. Surender Chauhan, Advocate with
                                   Defendant No.1 and 2 in person.

%      CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be allowed to see the
       judgment?

(2)    To be referred to the reporter or not?                          Yes

(3)    Whether the judgment should be reported in the Digest?          Yes

                            JUDGMENT

ARUNA SURESH, J.

I.A. No.6569/2010 (Order 39 Rule 1 & 2 CPC), IA No.7521/2010 (O.39 R. 2 A CPC) and IA No.8270/2010 (for vacation of stay) in CS(OS) No.967/2010

1. Vide this order I shall dispose of the abovesaid three applications.

Two of the applications have been filed by the Plaintiffs seeking ad

interim injunction against the Defendants and also modification of

ex-parte ad interim injunction granted by this court vide order dated

17.05.2010. Third application has been filed by the Defendants

seeking vacation of the said ex-parte ad-interim injunction.

2. Plaintiff No.1 happen to be father of the Defendants whereas

Plaintiff No.2 is their step-mother. Plaintiff is running his business

of hardware as Proprietor of M/s. Gangu Ram Ram Kishan at 5229,

Shradhanand Marg, G.B. road, Ajmeri Gate, Delhi for the last about

35-40 years. Plaintiffs and Defendant No.2 are residing in House

No.H-32, Kailash Colony, New Delhi whereas Defendant No.1

residing in N-152, First Floor, Greater Kailash-I, New Delhi.

3. Plaintiffs have claimed that Plaintiff No.2 is the owner of Front

Portion of the First Floor consisting of drawing/dinning, one bed

room, attached bathroom, kitchen and servant quarter on the top

along with 1/6th undivided, indivisible and impartaible ownership

rights in the plot of land measuring 311 Sq. yds., bearing No.H-32,

Kailash Colony, New Delhi; the property in dispute. Whereas

Defendant No.2 is in possession of the rear portion of the first floor

of the said property. Defendants have been assisting Plaintiff No.1

in his business. There have been disputes inter se Plaintiff No.2 and

the Defendants and their family.

4. Case of the Plaintiffs is that on 10.05.2010, Defendants conspired

and started making unreasonable demands and asked Plaintiff No.1

to partition the business as well as the residential houses to which

Plaintiff No.1 politely refused. In the evening Defendants allegedly

used filthy language against the Plaintiffs and their daughter and

demanded that Plaintiff No.2 should surrender the property in suit

and leave the house instantly. Allegedly Defendants asked Plaintiff

No.1 not to come to the shop to enable them to run the business.

Apprehending dispossession from the front portion of the First Floor

of the property in suit as well as from the business, Plaintiffs filed

the present suit along with IA No. 6569/2010.

5. Defendants have contested the applications contending inter alia that

Plaintiffs misrepresented the fact that they are in possession of the

front portion of the property in suit. Plaintiffs are residing on the

ground floor whereas first floor is in complete possession of

Defendant No.2 in his own right. Ground floor of the property in

suit was purchased in the name of Plaintiff No.2 whereas first floor

was purchased in the name of Defendant No.1. Defendant No.1 sold

the rear portion of the first floor to Defendant No.2 and to avoid

dispute in the family front portion of the first floor was transferred

to Plaintiff No.2, who executed a Will dated 21.08.2002 in favour of

Defendant No.2. Defendants have been working with their father,

Plaintiff No.1 in the shop and they have contributed towards the

growth of the business and invested substantial money in the said

business. They never extended any threat to the Plaintiffs as alleged

and even to report of the Investigating Officer indicate that the entire

premises on the first floor are under the lock and key of Defendant

No.2. Thus Plaintiffs have not come to the Court with clean hands.

Plaintiff also owns another property i.e. first floor of House No.H-

28, Kailash Colony, New Delhi, which is lying vacant and this suit

has been filed to oust Defendant No.2 from the property in suit.

6. I have heard Mr. Muneesh Malhotra counsel for the Plaintiffs and

Mr. Surender Chauhan, counsel for the Defendants and have

carefully perused the record.

7. During the course of arguments following facts were admitted by the

parties.

1. Plaintiffs are residing on the ground floor of the suit property

No.H-32, Kailash Colony, New Delhi.

2. Defendant No.2 has been residing on the first floor of the

property for quite some time. Defendant no.1 is residing in N-

152, First Floor, Greater Kailash, New Delhi and another

property bearing First floor of H-28, Kailash Colony, New Delhi

is lying vacant.

3. Plaintiffs did not reside on the front portion of the first floor of

the suit property. Defendant No.1 had executed a Sale Deed in

favour of Plaintiff No.2 and Plaintiff No.2 in turn had executed a

Will in favour of Defendant No.2. Despite these documents

Plaintiff No.2 was never in physical possession of front portion

of the first floor property.

8. It is submitted by the counsel for the Plaintiffs that dispute arose

inter se the parties when Plaintiff No.2 asked Defendant No.2 to

temporarily provide her a room for the marriage of her daughter to

be used as a guest room to which Defendant no.2 refused.

9. Thus, prima facie, it is clear that Plaintiffs were not in possession of

front portion of the first floor of the house at the time when the suit

was filed and ex-parte ad-interim injunction was obtained. This is a

concealment of fact by the Plaintiffs. Rather, Plaintiffs have tried to

mislead the Court by alleging that they are in possession of front

portion of the property in suit and apprehended threat of

dispossession at the hands of Defendant No.2.

10. Prima facie it seems that Plaintiff no.1 made arrangement for all his

children as he provided first floor of House No. N-152, First Floor,

Greater Kailash, New Delhi for residence of his son Defendant No.1

and provided first floor of the property in suit to Defendant No.2.

Another House bearing No.H-28 has been purchased by him to be

gifted in marriage of his daughter as stated by him during the course

of arguments. He alongwith his wife is residing on the ground floor

of the property in suit. To my mind, an unnecessary issue has been

raised / agitated by Plaintiff no.2 for temporary accommodation on

the first floor to be used as a guest room for the relatives who might

come to attend the marriage of their daughter. It is not out of place

to mention here that plaintiffs have not fixed the marriage of their

daughter till date and they are in search of a suitable match.

Therefore, the need for a room to accommodate the guests is not in

existence. This seems to be a made up ground to pressurize

Defendant No.2 to part with possession of one of the rooms.

11. Admittedly, Defendants were working with their father doing the

same business in the said shop. May be that Plaintiff No.1 is

running the business as sole Proprietor, it is not disputed by him that

both the sons have been working with him till he obtained ex-parte

ad-interim injunction from this court. Defendants have admitted

that they have taken another shop on rent and have started their

business from the said shop. Though they claimed that they have

invested huge amount in the business which was being run by them

with their father.

12. Under Order 39 Rule 1 & 2 sub rule (c) CPC court can grant

temporary injunction if Defendant threatens to dispossess the

Plaintiff or otherwise cause injury to the Plaintiff in relation to any

property in dispute in the suit. The court may grant a temporary

injunction to restrain such act, or make such other order for the

purpose of staying and preventing the wasting, damaging,

alienation, sale, removal or disposition of the property or

dispossession of the plaintiff, or otherwise causing injury to the

Plaintiff in relation to any property in dispute, as the Court thinks fit

till the final disposal of the case on merits.

13. Grant of temporary injunction is governed by three basic principles

i.e. prima facie case, balance of convenience and irreparable injury,

which are required to be considered in proper perspective under the

facts and circumstances of each case and no strait-jacket formula

can be laid down. Sometime, there are situations wherein the

Defendant may use the suit property in such a manner that the

situation becomes irretrievable. In such circumstances, Court

should grant interim relief. However, it is not appropriate for a

court to hold a mini trial at the stage of grant of temporary

injunction. Court has to assess the pleadings of the parties and the

documents placed on record to find out if the ingredients/principles

governing the grant of temporary injunction are made out or not.

14. In Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd., AIR

1999 SC 3105, The Apex Court crystallized the conditions which

ought to weigh with the court hearing the application or petition for

the grant of injunctions as below:-

"(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise."

15. In „Zenit Mataplast Private ltd. vs. State of Maharashtra & Ors.',

Civil Appeal No. of 2009, decided on 11th September, 2009 by the

Apex Court, the considerations which the Court must keep in mind

while hearing on the application for grant of interim injunction as

laid down in Colgate Palmolive (India) Ltd's case (supra) were

followed.

16. In „Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC

276', the Supreme Court explained the scope of aforesaid material

circumstances, but observed as under:-

"The phrases 'prima facie case', 'balance of convenience' and ' irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."

17. Interim order is passed as a temporary arrangement to preserve the

status quo till the matter is decided finally, to ensure that the matter

does not become either infructuous or a fate accompli before the

final hearing. The purpose of an interlocutory injunction is, to

protect the plaintiff against injury by violation of his right for

which he could not be adequately compensated in damages

recoverable in the action if the uncertainty was resolved in his

favour at the trial.

18. It is settled principle of law that a person who approaches the

Court for grant of relief, equitable or otherwise, is under a solemn

obligation to candidly disclose all the material/important facts

which has bearing on the adjudication of the issues raised in the

case. It is the duty of the party asking for an injunction to bring to

the notice of the Court all facts material to the determination of his

right to have injunction and it is not an excuse for him to say that

he was not aware of the importance of any facts which he has

omitted to bring forward. Where Plaintiff does not act bona fidely

and does not put every material facts before the Court, the Court is

within its inherent power to refuse to grant him injunction, even

though there might be facts upon which injunction might be

granted. Conduct of the Plaintiff is very material in bringing the

case and disclosing the facts before the Court. Plaintiff is required

to make fullest possible disclosure of all material facts within his

knowledge to the Court and if he does not make that fullest

possible disclosure, he cannot obtain any advantage from the

proceedings and is liable to be deprived of any advantage he might

have already obtained by means of the order which has thus

wrongly been obtained by him by concealment of material facts.

19. The preface of the judgment delivered by the Apex Court in

„Dalip Singh vs. State of U.P. & Ors., 2010 (2) SC 114, reflects

the anguish of the Court to the existing value system of the

litigants who resolved to false suit and unethical means for

achieving their goals, it reads:-

"For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. "

20. In the said case holding that the appellants belonged to the

category of persons who not only attempt, but succeed in polluting

the course of justice are not entitled to the injunction prayed for by

them, the Court dismissed the appeal. The conduct of the

appellants in the said case in concealing the material facts was

considered as contemptuous.

21. Coming back to the facts and circumstances of the case, as pointed

out above, Plaintiffs concealed material facts from this Court that

Defendant No.2 is in physical possession of the entire first floor of

the property for quite some time before filing of the suit. Due to

disputes and differences in the family i.e. between Plaintiff No.2

and the Defendants, the Plaintiffs have approached this Court for

grant of ad-interim injunction during the pendency of the suit for

restraining the Defendants from interfering in the peaceful

possession of the front portion of the first floor of the property in

suit, by misrepresentation of facts. Even if there are facts which

prima facie entitle the Plaintiffs for a discretionary relief of

injunction but as they have not acted with bonafides and have not

put other material facts before the Court and have been successful

in obtaining ex-parte interim injunction in their favour by

concealment of facts, they are not entitled to any injunction as

prayed. Plaintiffs cannot be allowed to take advantage from the

proceedings for their own act of concealment of material facts

within their knowledge. Prima facie, alleged threat of

dispossession of the Plaintiffs from the suit premises does not exist

as they were never in possession of the same. It is the Plaintiffs,

who in the garb of an interlocutory order, intended to enter into the

demised premises to take physical possession of the same.

22. Under the circumstances, it is Defendant No.2 who will suffer

inconvenience if he is dis-lodged from the premises in dispute,

may be one room as suggested during the course of arguments and

not the Plaintiffs who are in complete possession of ground floor of

the premises besides a vacant house No.H-28, which is hardly at a

distance from the suit property. Plaintiffs are at liberty to use

House No.H-28 as a guest room for their relatives at the time of

marriage of their daughter as it is lying vacant even if it has been

kept to be given in marriage to her daughter. Therefore, no

irreparable loss and injury is likely to be caused to the Plaintiffs if

the relief prayed for is not granted to them.

23. In view of my discussion as above, I conclude that Plaintiffs have

made all possible efforts to mislead the court. They are not entitled

to any relief as prayed. The interim order dated 17th May, 2010 is

hereby vacated so far as it relates to property No.H-32, Kailash

Colony, New Delhi i.e. the suit property.

24. As regards the interference of Defendants in the business of

Plaintiff No.1 being carried out at 5229, Shradhanand Marg, G.B.

Road, Ajmeri Gate, Delhi, it is made clear that Defendants who

have already started their separate business in a rented shop will

not interfere in the business activities of Plaintiff No.1 in the said

shop without prejudice to their rights in the business till final

disposal of the case on merits. However, it is expected from

Plaintiff No.1, being father, to ensure that if he along with his sons

cannot carry on his business in the same premises, to make

appropriate arrangements to rehabilitate the Defendants, being his

sons, by providing necessary financial assistance, if need be.

25. Applications stands disposed of accordingly.

CS(OS) No.967/2010

26. List on 6th September, 2010 before Joint Registrar.

ARUNA SURESH (JUDGE)

JULY 29, 2010 vk