Raj Singh vs Pushpa Aggarwal & Anr
2012 Latest Caselaw 5465 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Decision: 12.09.2012

+      FAO 400/2012


RAJ SINGH                                               ..... Appellant
                            Through :    Mr. R.S. Tomar & Mr. Sumit
                                         Tomar, Advocates
                   versus


PUSHPA AGGARWAL & ANR                                     ..... Respondents
               Through :                 None


CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.(ORAL)
*

CM No. 15992/2012 (exemption)

Exemption as prayed is allowed, subject to just exceptions. Application stands disposed of.

FAO No. 400/2012

1. Present is an appeal against impugned order dated 03.08.2012 passed by learned ADJ (North-West), Delhi whereby the application of the appellant under Order 39 Rule 1 and 2 read with Section 151 CPC for the grant of interim injunction thereby restraining the respondents from

selling/transferring or creating any third party interest in the suit property i.e. land measuring 13 Bighas 14 Biswas situated in the Revenue Estate of village Nizampur, Delhi which was subject matter of sale deed dated 17.09.2003, has been dismissed.

2. The appellant herein i.e. plaintiff before the learned trial court has filed a suit for declaration/cancellation of sale deed dated 17.02.2003 and permanent injunction against the respondent/defendant alleging therein that the appellant/plaintiff is a permanent resident of village Nizampur and in all he has got 42 Bighas 15 Biswas of land. It is alleged that appellant came in contact with one Tara Chand who is the husband of respondent no. 1 and father of respondent no. 2 in the house of his friend Raghubir Singh. There they used to consume liquor together. It is further alleged that the said Tara Chand had taken the advantage of bad habit of consuming liquor of the appellant/plaintiff. It is alleged that on 17.09.2003 said Tara Chand had taken the appellant to the office of Sub- Registrar wherein some documents were got signed from him. It is alleged that the appellant/plaintiff also took his pass port size photographs and his identity card and the appellant/plaintiff was also made to consume liquor on the way. It is further alleged that the respondent no. 1/defendant no. 1 had got signed a sale deed in respect of agricultural land of appellant/plaintiff measuring 13 Bighas 14 Biswas in the aforesaid land for a consideration of Rs. 12.75 lakhs in favour of his wife i.e. respondent no.1and a Special Power of Attorney was also got signed from him in favour of respondent no. 2/defendant no. 2 on the said date. It is alleged that the appellant/plaintiff had come to know of the same

only on 07.11.2011 when he had received a copy of Khatoni from Halka Patwari and came to know that the land bearing khasra no.59/7 min.(2-

06), 59/15 min. (1-16), 59/14 min, 59/16 min, 59/17 min and 59/25 min each measuring (2-08) has been mutated in the name of respondent no. 1/defendant no. 1 on 27.05.2004. Thereafter, the appellant/plaintiff obtained necessary documents from the said office and filed the aforesaid suit. Along with the suit an application under Order 39 Rule 1 and 2 CPC was filed seeking interim injunction against the respondents from restraining them by selling/transferring or creating third party interest in the suit property i.e. land measuring 13 Bighas 14 Biswas which was the subject matter of the sale deed.

3. Respondents had filed a written statement before the learned trial court denying the allegations made therein. The respondents/defendants have taken the stand that the suit filed by the appellant/plaintiff is time barred. It is further alleged that the sale deed was duly executed by the appellant/plaintiff in favour of the respondent no. 1/defendant no. 1 for consideration. NOC from the competent authority was also obtained. It is alleged that the appellant/plaintiff had also associated himself at the time of mutation of aforesaid property in favour of respondent no1/defendant no.1 and also signed certain necessary documents and a frivolous suit has been filed and the appellant/plaintiff is also not entitled for interim injunction as is prayed. After hearing the parties, the learned ADJ dismissed the application for the grant of interim injunction vide impugned order dated 03.08.2012.

4. Learned counsel appearing for the appellant/plaintiff has contended that the alleged sale deed dated 17.09.2002 was got executed through appellant/plaintiff in a fraudulent manner. It is contended that no consideration amount was paid to him. It is contended that the appellant/plaintiff will establish during the evidence that the alleged sale deed was got executed in a fraudulent manner. It is contended that the appellant/plaintiff never sold his agricultural land or executed any special power of attorney in favour of the respondents/defendants as is alleged by them. It is contended that to protect the interest of the appellant/plaintiff, the trial court ought to have granted interim injunction during the pendency of the aforesaid suit thereby restraining respondents in creating third party interest in the suit property during the pendency of the suit.

5. I have considered the submissions made.

6. Perusal of record shows that the appellant/plaintiff is not an illiterate person. At the relevant time he was working as a „Driver‟ in DTC and had taken voluntary retirement in the year 2008. As per him, the alleged sale deed was got executed from him under the influence of liquor in the year 2003. However, the suit for cancellation of sale deed has been filed in the year 2011. Prima facie, it is difficult to believe that the appellant/plaintiff had come to know of the same in the year 2011 as is alleged by him. The trial court has also observed that after the expiry of period of more than 3 years from the date of execution of sale deed, the appellant/plaintiff is making the allegations that the alleged sale deed was executed under the influence of liquor. The relevant finding of the trial

court is as under:-

"21. It is settled principle of law that for seeking an ad interim injunction under the provisions of Order 39 Rule 1 & 2 r/w Sec. 151 CPC that plaintiff is required to show as:

              i)      a prima facie case in his favour;
              ii)     balance of convenience in his favour;
              iii)    an irreparable loss and injury shall be caused
                      to the plaintiff which cannot be compensated
                      in terms of money.

              22. Applying the above said principle of law to

the facts and circumstances of the present case, I am of the opinion that the plaintiff has failed to show prima facie case in his favour and has also failed to show that balance of convenience also lies in his favour. After the expiry of period of more than three years from the date of the execution of sale deed which was executed on 17th of September 2003, it does not lies in the mouth of the plaintiff that the said sale deed was executed under the influence of liquor."

7. The application under Order 39 Rule 1 and 2 CPC has been decided by the learned ADJ after considering the material on record. Learned trial court has given cogent reasons in rejecting the application. The grant of interim injunction or refusal of the same is in the discretion of the court. There is nothing on record to show that discretion has been exercised in an arbitrary manner.

8. No illegality is seen in the impugned order which calls for interference of this court.

The appeal stands dismissed.

It is clarified that nothing stated herein shall have any bearing on the merits of the case.

CM No. 15991/2012 (stay)

In view of the order on the main appeal, no orders are required on this application.

Application stands disposed of.

VEENA BIRBAL, J SEPTEMBER 12, 2012 kks