Smt Anita vs Smt.Turmal
2012 Latest Caselaw 5387 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+      FAO 391/2012

%                                Date of Decision: September 10, 2012


SMT ANITA                                              ..... Appellant
                            Through :    Mr.V.K. Goel, Advocate


                   versus

SMT.TURMAL                                             ..... Respondent
                            Through :    None

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL


VEENA BIRBAL, J. (ORAL)

* C.M.15829/2012

Exemption allowed subject to all just exceptions.

Application stands disposed of.

FAO 391/2012

1. By way of this appeal under section 104 of the Code of Civil Procedure, appellant has challenged the order dated 22.8.2012 passed by the learned Addl. District Judge, Saket Court, New Delhi whereby both the parties have been restrained from selling, renting, transferring, alienating or in any other manner creating third party interest in the suit property and to

FAO 391/2012 Page 1 of page 5 maintain status quo with respect to possession over the suit property during the pendency of the present suit.

2. The respondent herein i.e., plaintiff before the learned trial court has filed a suit for possession with respect to suit property consisting of three rooms in property no.G-76, Harkesh Nagar, New Delhi and has prayed for grant of injunction, damages/compensation of Rs.1 lac for the alleged harassment being caused to him by the appellant herein i.e., defendant before the ld. trial court. It is the case of the respondent/plaintiff that he is the owner of the suit property and the appellant/defendant is his daughter-in-law being the wife of his deceased son. The allegations against the appellant/defendant are that she in collusion with one Jitender is trying to grab the suit property. Respondent/plaintiff had also sent a legal notice to the three tenants occupying the suit property. Out of which one of the rooms was vacated by one of the tenants on 14.2.2010 and had handed over the possession to respondent/plaintiff. Further allegations are that on 17.2.2010, appellant/defendant in collusion with aforesaid Jitender had forcibly dispossessed the respondent/plaintiff from that room. Respondent/plaintiff had given legal notice to her for restoration of possession of the said room. It is alleged that the other two rooms in the suit property were also vacated by the tenants and respondent/plaintiff had put his locks. It is alleged that on 5th August, 2010, appellant/defendant in connivance with Jitender forcibly dispossessed him from the aforesaid rooms. With the aforesaid suit, an application was filed by the respondent/plaintiff for grant of ad interim injunction in his favour so that no third party interest is created in the suit property during the pendency of

FAO 391/2012 Page 2 of page 5 the suit. Appellant/defendant has contested the said suit by filing written statement wherein she has taken the stand that she is the absolute owner of the suit property, as such, she is free to let out the suit property to anyone. Pleadings are complete and suit is at the stage of framing of issues and admission/denial of documents. The learned trial court has allowed the application under Order 39 Rule 1 & 2 CPC of respondent/plaintiff wherein both the parties are restrained from selling, renting, transferring, alienating or in any other manner creating third party interest in the suit property and to maintain status quo with respect to possession over the suit property during the pendency of the said suit.

3. Aggrieved with the aforesaid order, the present appeal is filed.

4. Learned counsel for the appellant/defendant has contended that the appellant/defendant is the owner of the suit property and the learned trial court has not considered the material on record, as such, impugned order is liable to be dismissed.

5. The perusal of record shows that appellant/defendant has relied upon police verification of the tenants conducted on different dates as well as some rent receipts to show that she is the owner of the suit property. Affidavit of one of the tenants is also filed to show that the said tenant had handed over the possession of a room on 4.1.2010 to her. On the other hand, respondent/plaintiff has relied upon police complaints against the appellant/defendant wherein it is alleged that appellant/defendant is trying

FAO 391/2012 Page 3 of page 5 to grab the suit property. Various legal notices have also been issued to her on his behalf.. Respondent/plaintiff has also placed on record alleged possession letter issued to him by one of the tenants of suit property at the time of vacating the room in the suit property and surrendering the possession to him. After considering the material on record the learned trial court has observed that none of the parties has filed any document in support of ownership of the suit property and in respect of possession of suit property also and both the parties are filing contradictory documents. The relevant findings of the trial court is as under:-

"10. A perusal of these documents and the submissions made in the suit and WS reveals that none of the parties has filed any document in support of ownership of suit property. With respect to possession of suit property also, the same cannot be determined on the basis of contradictory documents filed by both the parties. None of the parties has been able to establish their previous possession, actual or constructive, over the suit property. However, plaintiff has alleged that he was in possession and was forcibly dispossessed by defendant while defendant has submitted that plaintiff was never in possession of the suit property, but none of them has been able to establish a prima facie case in their favour.

Looking at the totality of the circumstances, the balance of convenience lies in favour of both the parties and both of them are likely to suffer irreparable loss in case the property exchanges hands or any third party is created in suit property."

6. The application under Order 39 Rule 1 and 2 CPC has been decided by the learned ADJ after considering the material on record. As noted

FAO 391/2012 Page 4 of page 5 above, both the parties have not filed documents in support of ownership of suit property. Even the documents in respect of possession are also contradictory in nature. In these circumstances, the ld.trial court has rightly restrained both the parties not to create third party interest in the suit property. The impugned order passed is discretionary in nature and such an order would not ordinarily be interfered by the court unless it is shown that discretion has been exercised arbitrarily or capriciously. The discretion has been exercised keeping in mind material on record.

In view of the above discussion, in infirmity is seen in the impugned order. Appeal is therefore dismissed.

CM 15828/2012

In view of the dismissal of the appeal, no order is required to be passed in the present application. Same stands disposed of accordingly.

                                                     VEENA BIRBAL, J
September 10, 2012
ssb




FAO 391/2012                                           Page 5 of page 5