Delhi High Court
Chand Sehgal vs Vinod Kumar Paul & Ors on 15 November, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.377/2010
% Decided On: 15.11.2010
CHAND SEHGAL .... Petitioner
Through: Mr. I.C. Tiwari, Adv.
Versus
VINOD KUMAR PAUL & ORS. .... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in
the Digest?
: MOOL CHAND GARG,J.(Oral)
1. The appellant claims to have purchased two plots bearing No.73-
74 measuring 250 sq. yards each located at Khasra No.51/43, at Village
Baprola, Delhi Estate Colony, Janak Vihar within jurisdiction of P.S.
Nihar Vihar (Now, P.S. Ranhola), New Delhi. The sale was effected by
way of an agreement to sale and receipt besides General Power of
Attorney which was registered. The plot was taken into possession by
encircling the same by barbed wire. According to the appellant this
purchase was made at the instance of respondent No.1 and 2 on
24.07.1989.
2. It is also the case of the appellant that in the year 1992 i.e. after 3
years despite requesting respondents No.1 and 2 about return of the
title deeds they did not return the same. It was in 2009 that the
appellant claims to have known that the two plots were sold by
respondents No.1 and 2. It is thereafter, the appellant lodged FIR
No.1687/2009 under Sections 420/406/323/504/342 IPC at P.S.
Indirapuram, Ghaziabad against respondents No.1 and 2. It is stated
that, as informed by respondents No.1 and 2, they had sold the plots in
question to respondent No.3. It is, thereafter, the appellant instituted a
suit in the month of September, 2009 and also lodged another FIR
No.154/2010 at P.S. Ranhola, Delhi against respondents No.1 and 2.
The respondent No.3 in his written statement has taken a stand that
the two plots were sold through him in his capacity as a property
dealer.
3. In the suit filed by the appellant, he has prayed for declaration in
her favour and against respondents No.1 to 3 thereby declaring that the
title deeds executed by respondents No.1 and 2 or either by them in
favour of respondent No.3 or someone else with respect to the said plots
No.73-74 are null and void. He also prayed for relief of permanent
injunction and possession.
4. Along with the suit, the appellant also filed an application under
Order 39 Rule 1 and 2 CPC. The said application was disposed of by
the learned Additional District Judge vide order dated 15.07.2010. By
the said order, the learned ADJ has dismissed the application. The
relevant facts which have been noticed by the learned ADJ are that the
plots in question were sold by respondent No.3 on behalf of respondent
No.1 after receiving consideration and on the basis of a attorney
executed by the appellant in favour of respondent No.1. It was,
therefore, pleaded that respondent No.3 was merely acting as a property
dealer and allowed the sale of the property. The trial Court after taking
note of the execution of its registered General Power of Attorney by the
appellant in favour of respondent No.1 which permitted respondent
No.1 to dispose of all the properties of the appellant, observed that in
the absence of anything on record which may show that the said power
to sell the property was revoked by the appellant before filing of the suit
in 2009, the question of further restraining respondents No.1 to 3 from
alienating/disposing of the property any further is without any cause of
action for the reason that the property stands already sold by virtue of
the power given by the appellant to respondent No.1. While referring to
the basic principles which are required to be gone into while granting
ad interim injunction under Order 39 Rule 1 and 2, the ADJ made the
following observations:
"14. It is also a well settled principle of law that where both
sides are exposed to irreparable injury, ending trial, the
courts have to strike a just balance as held in Mahadeo
Savlaram Shelke Vs. Pune Municipaul Corporation (1995) 3
SCC 33, it is urged that the court considering an application
for an interlocutory injunction has four factors to consider:
first, whether the plaintiff would suffer irreparable harm if
the injunction is denied; secondly, whether this harm
outweighs any irreparable harm that the defendant would
suffer from an injunction; thirdly, the parties relative
prospects of success on the merits; fourthly, any public
interest involved in the decision. The central objective of
interlocutory injunctions should therefore be seen as
reducing the risk that rights will be irreparably harmed
during the inevitable delay of litigation.
15. A prima facie should be made out. The mere institution
of a suit does not entitle the plaintiff to any relief. Plaintiff
must satisfy the court that there is fair and substantial
question to be tried. In the instant case, a registered GPA dt.
13.5.83 was duly executed by plaintiff in favor of defendant
no.1. It is also pertinent to mention here that on the basis of
said registered GPA, the defendant no.1 had already sold
those plots bearing no. 73 & 74 through defendant no.3 in
the year 2005. It is also pertinent to mention that said
registered GPA dt. 13.5.83 has never been cancelled by the
plaintiff till today.
16. Admittedly as per the plaint, defendants are not in the
possession of the suit property as the defendants have
already sold the suit property on the instructions of plaintiff
on the basis of registered GPA dt. 13.5.83 as submitted by
defendant no. 1 to 3.
17. I am of the view that prima facie is not to be confused
with prima facie title. In the instant case, substantial
question raised by the parties which at first sight needs
investigation and can be established only after leading the
evidence when the case comes to the trial. The balance of
convenience also does not lie in favor of the plaintiff as the
defendants are not in possession of the suit property as the
same has already been sold in the year 2005.
18. Considering facts and circumstances of the case and
relying upon the judgment Mahadeo Savlaram Shelke Vs.
Pune Municipaul Corporation (1995) 3 SCC 33 (Supra), I am
of the view that the plaintiff at this stage has failed to make
out a prima facie case in her favour as prayed. The plaintiff
has not been able to satisfy any of the ingredients of Order
39 Rule 1 and 2 CPC in the present case and is not entitled
to the interim relief. Hence, the interim application under
order 39 Rule 1 & 2 CPC is hereby dismissed."
5. I find no infirmity. Consequently, when the appellant has not
been able to establish the prima facie case and the property in question
stands already sold to a third party and the suit in question has also
been filed by the appellant after a long time i.e. in 2009, it cannot be
said that there was any infirmity in the order passed by the learned
ADJ in having refused injunction as prayed for.
6. Accordingly, the appeal is dismissed at this stage itself.
C.M.18733/2010
Dismissed as having become infructuous.
MOOL CHAND GARG,J
NOVEMBER 15, 2010
'anb'
