Delhi High Court
Vinod Kumar vs Bohat Ram & Ors. on 12 August, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.272/2010
% 12th August, 2011
VINOD KUMAR ...... Appellant
Through: Ms. Dipti Dogra, Adv.
VERSUS
BOHAT RAM & ORS. ...... Respondents
Through: Mr. Sunil Lalwani, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the 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?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this First Appeal under Order 43(1)(r)
CPC is to the impugned order dated 19.3.2010 which has allowed the
application of the respondent no.1/plaintiff under Order 39 Rules 1 & 2 CPC
thereby restraining the appellant from in any manner transferring the suit
property or parting with possession thereof to any person till the decision of
the suit.
2. The issue in the case pertains to ownership of the suit property
WZ-5, situated in village Titarpur, New Delhi. The respondent no.1 who is a
FAO No.272/2010 Page 1 of 3
senior citizen of 80 years, laid out a case that he is the owner of the property
and earlier litigations were initiated which concluded in his favour vide
orders dated 4.11.1997 (Ex.PW1/11) and 14.1.1997 (Ex.PW1/12). These
were litigations between the respondent No.1 and the defendant No.2 in
which it was stated that the defendant No.2 had no rights in the property.
The defendant No.2 thereafter subsequently transferred the property firstly
to defendant No.1 and thereafter the property was transferred to other
defendants and lastly to the defendant No.7. Admittedly the defendants are
related to each other. Since the property was being regularly transferred, in
order to prevent further complications, after the defendant No.7/appellant
was added, the subject application for injunction under Order 39 Rules 1 and
2 CPC was moved to restrain the defendant No.7 from transferring the
property further and which has been allowed.
3. An injunction application under Order 39 Rules 1 and 2 CPC is
decided on the triple factors of prima facie case, balance of convenience and
irreparable injury. These three factors are clearly in favour of the
respondent/plaintiff inasmuch as the earlier litigations concluded showing his
ownership. The defendant No.2 failed to prove his ownership and merely
because there was an allegation of possession, does not mean that
defendant No.2 was the owner. The other defendants are subsequent
transferees and they cannot claim a title better than defendant No.2.
Balance of convenience is also in favour of respondent No.1/plaintiff, who will
be caused irreparable loss if the property is transferred because if third
FAO No.272/2010 Page 2 of 3
party's rights come into question, equities may also come into existence and
which may be prejudicial to respondent No.1/plaintiff.
4. Accordingly, there is no illegality or perversity in the impugned
order which in effect directs maintenance of status quo in the property so
that the suit does not become infructuous qua the existing defendants and
the plaintiff has to keep on changing different persons to be made parties to
the suit. Once the triple factors were in favour of respondent No.1/plaintiff,
the Trial Court has rightly passed the impugned order.
5. In view of the above, there is no merit in the appeal. Dismissed.
AUGUST 12, 2011 VALMIKI J. MEHTA, J.
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