Delhi High Court
Avani Kapur & Another vs Dr. Smrithi Talwar & Another on 8 July, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 06.07.2011
Judgment delivered on : 08.07.2011
+ CM (M)No. 736/2011 & CM Nos.12037-38/2011
AVANI KAPUR & ANOTHER ........... petitioners
Through: Mr. Brajesh Srivastava and
Mr. Dinesh Kumar, Advocates.
Versus
DR. SMRITHI TALWAR & ANOTHER ..........Respondents
Through: Mr.R.K. Mehta,
Mr. Virender Mehta and
Mr. Kunal Mehta, Advocates
for respondent No. 1.
Mr.Aditya Madan, Advocate for
respondent no.2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers 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
INDERMEET KAUR, J.
1 The order impugned is the order dated 28.05.2011. This
order had endorsed the prima facie finding returned by the Civil
Judge dated 13.04.2011 whereby the application of the plaintiff
(Dr. Smrithi Talwar) under Order 39 Rules 1 & 2 of the Code of
Civil Procedure (hereinafter referred to as the 'Code') had been
allowed and the defendants (Avani Kapur and Suvira Kapur) had
been restrained from causing any obstruction or interference in
the ingress and egress of the plaintiff in the suit property i.e.
property bearing No. B-7, Pushpanjali Forms, Bijwasan, New
Delhi.
2 The plaintiff is the second wife of Rajiv Kapur. The disputed
property was equally owned by late Rajiv Kapur and his mother
Suvira Kapur (defendant No. 2). Rajiv Kapur had expired on
14.07.2005; during his lifetime he had entered into a second
marriage with the plaintiff after a valid and legal divorce.
Defendant No. 1 (Avani Kapur) is his daughter from the first
marriage. Contention of the plaintiff is that in terms of the
amended provisions of Section 50 of the Delhi Land Reforms Act,
1951 (DLRA) the suit property being agricultural land she alone is
entitled to the share of her deceased husband (50% of the suit
property). This contention is opposed by defendant No. 1; her plea
being that in terms of Section 6 (5) of the Hindu Succession Act,
1956 as amended by the Act of 2005 she is also entitled to a share
in her father's 50% share. There is no dispute that the remaining
50% of the suit property is fully owned by defendant No. 2 i.e.
Suvira Kapur.
3 It is in this background that the respective contentions of
the parties had been noted. Civil Judge after examining the
respective documents of the respective parties had returned a
finding that as on date i.e. on 13.04.2011 neither the plaintiff nor
the defendants are residing in the suit property; the plaintiff and
defendant No. 2 are in constructive possession of the suit property
being co-owners. On this premise i.e. holding the plaintiff to be a
co-owner, the application of the plaintiff was allowed and both the
defendants were restrained from causing any obstruction or
interference in the ingress and egress of the plaintiff in the suit
property.
4 This finding was affirmed by the Additional District Judge
vide impugned order dated 28.05.2011.
5 While dealing with an application under Order 39 Rules 1 &
2 of the Code the principles governing injunction have to be
adhered to; the plaintiff must make out a prima-facie case,
balance of convenience and irreparable loss in favour of a party
seeking the temporary injunction must also be made out. In this
context, the impugned order had noted that the plaintiff had made
a specific averment in para 10 of the plaint that all her belongings
except certain necessities are lying in the suit property where she
was residing with her husband prior to his death; the impugned
order had also noted that this fact has not been specifically denied
in the written statement filed by the defendants. There is also no
dispute to the fact that the plaintiff is a co-owner in the suit
property; in these circumstances, the Court was of the view that a
prima-facie case has been built up by the plaintiff showing her
right in the suit property. Car registration certificate, driving
license, telephone bills in the name of the plaintiff, house tax
receipt issued by the MCD had also been considered by the Civil
Judge while granting the injunction in favour of the plaintiff. The
balance of convenience vis-à-vis rights of the parties as well as the
loss and injury apprehended by the plaintiff in case the injunction
is refused had also been adverted to.
6 The scope of interference in a petition under Article 227 of
the Constitution of India is limited; it is not an appellate
jurisdiction; it is a discretionary relief which may be granted to a
party if a patent illegality or gross injustice has been suffered by
the applicant; this does not appear to be one such case;
conscience of this Court does not deem it fit to interfere in the
impugned order. Discretion for grant of injunction has been
exercised in a sound and judicial manner after weighing and
considering the well established principles governing the grant of
temporary injunction; there has been no miscarriage of justice.
Impugned order does not warrant any interference. No merit in
the petition.
7 Dismissed.
INDERMEET KAUR, J.
JULY 08, 2011
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