Raman Juneja vs Sudershan Juneja
2012 Latest Caselaw 7116 Del

*         THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) 1346/2012

                                          Date of Decision: 12.12.2012

RAMAN JUNEJA                                      ...... Petitioner
                          Through:     Mr.S.C.Singhal, Advocate.

                                Versus

SUDERSHAN JUNEJA                                  ...... Respondent
                          Through:     Nemo.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 226 of the Constitution seeks assailing the order 30.07.2012 of learned ADJ, whereby the appeal filed by the petitioner against the order dated 5.11.2011 of Civil Judge, was dismissed. The present petition seems to have been wrongly filed under Article 226 of the Constitution, and the same is being treated as one under Article 227 of the Constitution.

2. The respondent, who is the mother of the petitioner had filed a suit against him for possession and recovery of mesne profits. Her case was that the petitioner was in permissive possession of the suit premises, being her son. Since he had acted against her as also her husband's wishes and interests, he was debarred from their life and

properties by way of a public notice dated 5.3.2003. Further, vide notice dated 1.7.2008, the permission granted to the petitioner earlier, was revoked and cancelled and he was called upon to hand over the vacant and peaceful possession of the suit premises, failing which, to pay damages at the rate of Rs. 15,000/- per month. It was her case that the petitioner replied to the said notice, alleging that the suit premises came to his share out of the joint family property through oral partition. The petitioner having failed to vacate the premises, the respondent filed the suit for possession and recovery of mesne profits. During the pendency of the suit, she (respondent) filed an application under Order 39 Rule 1 & 2 CPC restraining the petitioner from digging the suit premises. It was this application, which was allowed by the learned Civil Judge vide order dated 5.11.2011, which was carried in appeal by the petitioner before the ADJ. The learned ADJ dismissed the appeal vide impugned order, which is under challenge in the instant petition.

3. Before adverting to the submissions of the learned counsel for the petitioner, I may reiterate that power of this court under Article 227 of the Constitution is limited being supervisory in nature and not like an appellate court. It is settled proposition of law that if the discretion exercised by the courts below is not arbitrary, capricious or perverse and the findings are not contrary to the material available on record, this court will refrain from interfering with the same. The learned ADJ in the impugned order has also observed that there is no infirmity, illegality or perversity in the order of the Civil Judge.

4. The submissions which are made by the learned counsel for the petitioner before me are the same, which were made before the learned ADJ as also Civil Judge that the petitioner is in possession of the suit premises in his independent right, and that, injunction order under Order 39 Rule 1 & 2 CPC could not be passed in a suit for possession and mesne profits. Learned counsel for the petitioner also placed reliance on the same judgment, which was cited by him in the courts below i.e. Prakash Kaur Vs. Everest Construction Company, 1991 RLR 19.

5. So far as the plea that the petitioner was in possession of the suit premises in his independent right, the courts below have noticed from the record that the petitioner has been taking inconsistent stands in this regard. At one point of time, he had claimed himself to be the co- owner of the suit premises and at another place, as a tenant of the respondent at the rate of Rs. 1000/- per month. There was no explanation, much less plausible, given by the petitioner in this regard. Further, it is undisputed that the premises was owned by the respondent by virtue of a registered sale deed in her favour. There is nothing to substantiate the plea of the petitioner that the premises was in fact, purchased from the funds of his grand-father or that of his contribution. This appears to be a bald plea set out by the petitioner in view of a notice having been served by the respondent debarring him from their life.

6. The plea that in a suit for possession and mesne profits, the injunction order could not be passed under Order 39 Rule 1 & 2 CPC, is entirely misconceived. The reliance placed on the case of Prakash Kaur (supra) is also misplaced. That was a case of declaration simpliciter. In any case, the Apex Court in Rajnibai @ Mannubai Vs. Smt. Kamla Devi & Ors., 1996 (1) Civil Court Cases 431 (S.C.) held that in a suit for declaration of title simpliciter, the court has the power under Order 39 Rule 1 & 2 CPC or even in Section 151 CPC to grant ad-interim injunction pending suit. When the present suit was filed for possession, there was no cause of action for seeking an injunction against the petitioner. It was during the pendency of this suit that the petitioner started digging the suit premises for carving out another basement which made the respondent to file an application under Order 39 Rule 1 & 2 CPC. When the premises, the subject of the suit, is in a danger of being damaged or being dealt with otherwise, the landlord would be entitled as of right, to seek injunction, and the court can grant temporary injunction irrespective of the nature of the suit, if it comes within the four corners of Rules 1 & 2 of Order 39 CPC.

7. In view of my above discussion, I do not see any infirmity or illegality in the impugned orders of learned Appellate Court of ADJ or that of the Civil Judge. The petition has no merit and stands dismissed in limine.

M.L. MEHTA, J.

DECEMBER 12, 2012/akb