Naresh & Ors. vs Beero & Anr.
2013 Latest Caselaw 485 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : 01.02.2013

+     CM(M) 133/2013

      NARESH & ORS.
                                                            ..... Petitioners
                            Through: Mr.Diwan Singh Chauhan, Advocate.

                   versus

      BEERO & ANR.
                                                             ..... Respondents
                            Through

      CORAM:
      HON'BLE MS. JUSTICE PRATIBHA RANI

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PRATIBHA RANI, J. (ORAL)

C.M.No.1854/2013 (Exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

CM(M) 133/2013 and C.M.No.1853//2013 (stay)

1. Respondent No.1, Smt.Beero filed civil suit bearing C.S.No.04/09 for possession and permanent injunction impleading her brother Naresh (petitioner before this Court) as defendant No.1 and her father, Shri Kishan Chand (now dead and his legal heirs brought on record) as defendant No.2.

2. The case of the respondent No.1/plaintiff is that she purchased a plot

measuring 200 sq. Yds falling in Khasra No.16/24/1, Village Pochan Pur, Delhi on 04.11.1988 from her father for a total sale consideration of Rs.30,000/-. The receipt was duly registered before the Sub-Registrar and transfer documents like GPA, Agreement to Sell and affidavit etc. were executed in her favour by her late father Kishan Chand. The defendant No.1, who is her brother, was initially permitted by her to carry on his building material business from her plot. However, subsequently the relations between them became strained as he refused to part with possession of the four rooms on the plot owned by the plaintiff. Even her father started taking side of her brother and because of collusion between her father and brother, she impleaded her father as defendant No.2 in the said civil suit. In view of threats being received by her from her brother to deprive her of her property and threatened demolition in respect of construction existing on the portion shown as red in the site plan, so as to merge it with the adjoining plot owned by defendant No.1, a suit was filed claiming relief of possession in respect of 50 sq. yds with super structure of four rooms falling in Khasra No.16/24/1 and also relief of injunction restraining the defendants from demolishing the superstructure or creating any third party interests thereon. Along with the said suit, application under Order XXXIX Rules 1 & 2 CPC was also filed by the plaintiff.

3. The learned Senior Civil Judge, Dwarka vide his order dated 05.09.2011 dismissed the injunction application observing that on the basis of unregistered documents no right, title and interest can accrue in favour of the plaintiff. The learned Senior Civil Judge also took note of the fact that the defendant No.1 was also claiming ownership in respect of the suit property and defendant No.2, her father, had denied execution of any

documents in her favour. Not only that, after getting the property demarcated, the learned Senior Civil Judge formed the view that the suit property measuring 50 sq. Yds of area falls in Khasra No.16/23/2 whereas the plaintiff is claiming herself to be the owner in respect of plot falling in Khasra No.16/24/1, Village Pochan Pur, Delhi.

4. The learned Senior Civil Judge had declined to grant any injunction, as prima facie plaintiff was unable to show herself to be the owner of the suit property.

5. Aggrieved by the order passed by the learned Senior Civil Judge, the respondent No.1/plaintiff Smt.Beero filed MCA No.16/11. The learned Appellate Court considered the effect of the unregistered documents and was of the view that if power of attorney in favour of the appellant/plaintiff was not legally recognized, the same fate should be of the documents of the defendants. However, in order to strike a balance between the conflicting interests of the two siblings, the learned first Appellate Court, while partly allowing the appeal, passed the following order:-

"In view of above, appeal of the appellant/plaintiff under order 39 Rule 1 and 2 r/w section 151 CPC is partly allowed to the extent of the respondent/defendant shall not create third party interest in the suit property till final disposal of the suit and if he raised the construction on the 50 square yards plot which is alleged to be belonging to the appellant/plaintiff shall be subject to final outcome of the case."

6. The petitioner, who was defendant No.1 in Civil Suit No.04/09, is aggrieved by this order, hence filed the present petition under Article 227 of the Constitution of India before this Court praying for setting aside the impugned order dated 03.11.2012 passed by the learned ADJ, Dwarka, New

Delhi in MCA No.16/2011 titled Smt.Beero vs. Shri Naresh and Ors.

7. Learned counsel for the petitioner submitted that by passing the impugned order, the learned Trial Court has put a restriction on the ownership rights of the petitioner on the property despite the fact that even his father, through whom the plaintiff/defendant No.1 was claiming title, denied execution of such documents. Hence, the impugned order may be set aside.

8. While partly allowing the appeal, the learned Addl. District Judge has just imposed a condition on the petitioner not to create any third party interest in respect of the suit property till final disposal of the suit and further that if he raised any construction on the 50 sq. Yds. Plot of which the plaintiff claims to be the owner, it would be subject to the final outcome of the case. Such injunction granted by the Appellate Court in its discretion cannot be termed to be resulting in any miscarriage of justice to any of the parties

9. In the instant case, the learned Appellate Court has protected the interests of Smt.Beero, who is sister of petitioner Naresh and claims to be the owner of the suit property, only till disposal of the suit and in no circumstance it can be said that the first Appellate Court has not exercised its discretion in legal and justified manner.

10. The Apex Court, in the case of Dorab Cawasji Warden V. Coomi Sorab Warden and others AIR1990SC867, while deliberating on the issue of grant of injunctions observed,

"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts

that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

11. The contention of learned counsel for the petitioner that the learned Appellate Court has imposed the restrictions on the rights of the owner especially when the executants i.e. the father of the petitioner and respondent No.1 denied execution of documents in her favour and thereby caused serious injustice to the petitioner is no ground to interfere with the impugned order. The first Appellate Court considered the effect of the documents in favour of the petitioner as well as respondent No.1/plaintiff before partly allowing the appeal. Even otherwise, mere wrong decisions without anything more is not enough to attract jurisdiction of the High Court

under Article 227 of the Constitution of India, but the Court will interfere only when an error of law is apparent on the facts of record which has resulted in gross injustice to any party.

12. Finding no illegality or perversity in the impugned order, the present petition is hereby dismissed.

PRATIBHA RANI, J

FEBRUARY 01, 2013 „dc‟