Delhi High Court
Rp Bajaj vs Sheela Kapoor And Anr on 27 October, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 314/2010
Decided on 27.10.2010
RP BAJAJ ..... Appellant
Through: Mr.Pramod Ahuja, Adv.
versus
SHEELA KAPOOR AND ANR ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
: MOOL CHAND GARG, J
C.M15205/2010(exemptions)
Exemptions allowed subject to just exceptions.
FAO 314/2010
1. The short point involved in this appeal is as to whether the orders
passed by the learned ADJ on 03.08.2010 in Suit No.172/2009 needs
any interference by this Court.
2. The relevant observations made in the above-said impugned order
are reproduced hereunder:
"3. The rival contentions of parties qua the entitlement of the
suit property will have to be tackled on trial. The decree in
favour of defendant No. 2 cannot be brushed aside lightly in
the face of his representation in the Written statement. The
stands of plaintiff in the recovery suit pending before Ld.
Civil Judge and the one before this court seem to be
diametrically opposite and irreconcilable. Before making the
dent in the defence of defendants plaintiff will have to stand
on his legs and establish primafacie case for the 3 temporary
reliefs.
4. Interestingly enough plaintiff does not claim to have filed
the suit for specific performance of agreement dated
02.06.1975 or filing a counter claim in the recovery suit
initiated by Smt. Kaushyala Devi. Apparently he did not put
the agreement purportedly in respect of suit property, to
enforcement. He cannot therefore, choose to restrain
defendant No. 2 from representing himself as the owner of
suit property on the basis of Sale Deed dated 30.10.2001.
Plaintiff being in physical possession of the suit property, at
the same time cannot be forced out except following the due
process of law for which no proceedings seems to have been
initiated.
5. Having been bestowed the ownership rights of property by
hard fought litigation, defendant No. 2 cannot be deprived of
the fruits. He will be gravelly inconvenienced in case any
embargo is put on his so acquired rights. Plaintiff on the
other hand would not be prejudiced or inconvenienced by
such assertion of defendant No. 2.
6. In view of the above, application of plaintiff is partly
allowed and defendant No. 2 is restrained from interfering in
the physical possession of the plaintiff of the suit property
and from dispossessing him without following the procedure
prescribed by law."
3. It is submitted by the appellant that the appellant is in
possession of the suit property as a tenant. In fact, the appellant is
aggrieved of an agreement between the predecessor of R-1 and R-2 and
of a decree which is stated to have been obtained by respondent No.2
which he submits was a policy decree. From the very fact that the
possession of the tenant has been protected and the second respondent
who now claims ownership of the suit property on the basis of a decree
in his favour has been restrained from dispossessing the appellant from
the suit property, it is apparent that at this stage, in the absence of any
suit filed by the appellant for specific performance of the agreement on
the basis of which he claims ownership in the suit property and the
rights of the parties are yet to be crystallized and necessary protection
having been granted to the appellant by the learned ADJ to protect his
interest, I find no reason to interfere with the discretion exercised by the
ADJ while passing the impugned order
4. The appeal is accordingly dismissed.
5. No costs.
C.M.15208-09/2010
Dismissed as infructuous.
MOOL CHAND GARG,J
OCTOBER 27, 2010/'anb'
