Preetinder Singh Thapar vs Shri Hardeep Singh Thapar & Ors
2013 Latest Caselaw 531 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No.1146/2007


                                 Date of Decision: 5th February, 2013

IN THE MATTER OF:
PREETINDER SINGH THAPAR                              ..... Plaintiff
                              Through : Mr. Abhijat with
                              Ms. Liza Baruah, Advocates

                        versus

SHRI HARDEEP SINGH THAPAR & ORS.              .... Defendants
                        Through : Mr. Varun Goswami,
Advocate
                         for D-4.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

I.A. No.12271/2012 (by the plaintiff u/O XXXIX R-2A r/2 Section 151 CPC)

1. The present application has been filed by the plaintiff

stating inter alia that the defendant No.4 is in gross disobedience

of the ad interim ex parte order dated 18.6.2007 and he is liable to

be punished by way of detention in civil prison.

2. Counsel for the plaintiff states that the plaintiff has

instituted the accompanying suit against the defendants praying

inter alia for a decree of declaration that the Sale Deed dated

16.1.2003 is null and void, for pre-emption, permanent injunction,

etc.

3. The case of the plaintiff is that he is a co-owner of the

suit premises along with the defendants No.1 & 2 by virtue of a

Conveyance Deed dated 25.5.1971 executed by the Ministry of

Rehabilitation, and the defendant No.1 had illegally and without any

notice to him, sold the second floor along with the roof rights of the

suit premises to the defendant No.3 on 16.1.2003 and the

defendant No. 3 had in turn sold the said property to the defendant

No.4 by executing a Sale Deed dated 23.4.2007.

4. Counsel for the plaintiff submits that by virtue of the

aforesaid Sale Deed, the defendant No.4 claims to have purchased

the second floor with the roof rights therein, but the parking space

on the ground floor was not a part of the sale transaction and the

said space had remained in the exclusive use and occupation of the

plaintiff. It is submitted that the present application has been

necessitated on account of the fact that prior to the plaintiff and his

wife going out of town on 24.5.2012, they had parked their car at

the residence of a relative but on their return on 28.5.2012, the

plaintiff had discovered that the defendant No.4 had surreptitiously

trespassed into the suit premises and illegally parked his own car in

the parking space. The plaintiff claims to have lodged a complaint

against the defendant No.4 with PS Malviya Nagar on 29.5.2012,

alleging forcible possession/trespass.

5. Counsel for the plaintiff states that a bare perusal of the

purported Sale Deeds executed by the defendant No.1 in favour of

the defendant No.3 and by the defendant No.3 in favour of the

defendant No.4, would reveal that there is no mention therein of the

car parking space and the defendant No.4 cannot claim a right to

park his car in the space available on the ground floor. He therefore

states that the defendant No.4 is in gross violation of the ex parte

ad interim order dated 18.6.2007 and is liable to be punished for

breach of the said order.

6. On the other hand, counsel for the defendant No.4

vehemently opposes the present application and states that the

same has been deliberately filed by the plaintiff immediately after

an earlier application filed by him under Order XXXIX Rule 2A CPC,

registered as I.A.No.14186/2009 came to be dismissed vide order

dated 16.9.2011. He submits that in the aforesaid application also,

the plaintiff had claimed violation of the status quo order dated

18.6.2007 by the defendant No.4. But the said application was

turned down by the aforesaid order, wherein the Court had

observed that keeping paying guests on the second floor of the suit

premises which was under the occupation of the defendant No.4,

would not tantamount to creating any third party interest. He points

out to the Sale Deed dated 23.04.2007 to state that in terms of the

said deed, he is entitled to the entire second floor with the roof

rights, which includes all the rights in common entrances, common

facilities and amenities provided therein and the same would include

the parking space on the ground floor. He further states that it is

necessary to peruse the averments made by the plaintiff in

I.A.No.7088/2007, filed under Order XXXIX Rule 1 & 2 CPC, so as to

understand the context in which the aforesaid status quo order had

been passed.

7. Lastly, counsel for the defendant No.4 relies upon the

documents filed by the plaintiff along with the plaint under the

index dated 7.5.2008, particularly, a certified copy of the Partition

Deed dated 17.11.2000 executed between the plaintiff and his

siblings, through their power of attorney on the one hand, and the

defendant No.1 on the other hand, whereunder the parties had

agreed that the plaintiff would become the owner of the ground

floor and the first floor of the suit property and the defendant No.1

would become the owner of the second floor with the roof rights of

the suit property.

8. Counsel for the defendant No.4 submits that his client

had come upon the aforesaid document only after he had purchased

the second floor along with the roof rights of the suit premises from

the defendant No.3. The defendant No.4 had then discovered that

defendant No.1 had mortgaged the suit property to a bank and later

on when he was confronted with the said mortgage deed, defendant

No. 4 had no option but to settle the dispute with the bank by

paying a sum of `20.00 lacs for the release of the property.

Thereafter, the bank had discharged the mortgage deed by

executing a Deed of Assignment dated 26.3.2010, enclosed with the

list of documents filed under index dated 5.10.2010. He states that

the aforesaid Partition Deed dated 17.11.2000 executed by the

plaintiff and his siblings including defendant No. 1, was a part of the

documents that were furnished by the plaintiff and the defendant

No.1 to the bank and another document filed with the bank was a

NOC issued by the plaintiff in favour of the defendant No.1, to

enable the latter to seek a loan from the bank in respect of the

second floor and the terrace of the suit premises.

9. The Court has heard the submissions of the counsels for

the parties and considered the documents referred to by both sides.

Before examining their respective submissions, it is relevant to

peruse the contents of the interim application filed by the plaintiff ,

i.e., I.A.No.7088/2007, wherein the interim order dated 18.6.2007,

breach whereof is claimed by him, came to be passed .

10. In para 4 of the aforesaid application, the plaintiff had

averred that the defendant No.4 had started undertaking some

unauthorized and illegal construction over the second floor of the

suit premises and had the intention to raise a third floor as well. It

was further averred that the suit property was jointly owned by the

plaintiff and the defendants No.1 & 2 and no partition thereof had

taken place till the said date and therefore, the plaintiff had a pre-

emptory right to purchase the defendant No.1's share therein.

Thus, the plaintiff had prayed for the relief of status quo with regard

to the title, possession, use, enjoyment of the suit premises as on

the said date. Secondly, the plaintiff had sought directions against

the defendant No.4, for restraining him from raising any

construction on the second and third floor of the suit premises or

from hindering or obstructing the plaintiff from having access to the

roof of the second floor where water tanks are installed and the car

parking on the ground floor, where his cars were parked, which he

alleged were in his exclusive possession.

11. Vide order dated 18.6.2007, an ad interim ex parte

order was passed whereby defendant No.4 was directed to maintain

status quo in respect of the title, possession and status of property

bearing No.A-78, Malviya Nagar, Delhi. The aforesaid order was

subsequently modified, vide order dated 15.10.2008, by granting

permission to the defendant No.4 to complete the work on the

existing structure by carrying out the interior and wood works of the

portions which had already been constructed by him. However, the

aforesaid application was not disposed of finally and is still pending

adjudication.

12. A query has been posed to the learned counsel for the

plaintiff as to how the plaintiff had made an averment in para 4 of

the application that the suit property had not been partitioned till

the date of institution of the suit, to which counsel for the plaintiff

replies by referring to para 10 of the plaint wherein the plaintiff has

averred that the aforesaid Partition Deed is a forged document.

However, it is conceded that despite the fact that the plaintiff had

sought leave to amend the plaint on two earlier occasions and

permission was duly granted to him, he has failed to seek any relief

of declaration to the effect that the said Partition Deed is invalid.

It is further stated by learned counsel on instructions from the

plaintiff, that the NOC, which defendant No.4 claims was given by

the plaintiff to the bank from whom the defendant No.1 had raised a

loan by mortgaging the second floor of the suit premises, had not

been executed by the plaintiff. He states that the said document has

been forwarded to the FSL for obtaining a report in an FIR lodged

by the defendant No.4 against the plaintiff and the defendant No.1,

which is still awaited.

13. Having regard to the fact that though the plaintiff had

sought two fold reliefs in I.A.No.7088/2007, and the Court had

confined the ex parte ad interim order dated 18.6.2007 to the

prayer clause (a) alone by directing the defendant No.4 to maintain

status quo in respect of the title, possession and status of the suit

property, it would be a little too farfetched for the plaintiff to claim

at this stage that the second relief prayed for in the said application

stood automatically granted in his favour by virtue of the aforesaid

order. Further, at this stage, the Court is skeptical about the stand

taken by the plaintiff in IA 7088/2007 vis-à-vis the averments made

by him in the plaint, more so when he has chosen not to seek any

relief of declaration in respect of the registered Partition Deed dated

17.11.2000 placed on record by the defendant No.4, though it is his

stand that it is a forged document. As noted above, the plaintiff had

approached the Court on two earlier occasions to seek amendments

to the plaint, which were so granted, but for reasons best known to

him, he has not added a material prayer in the relief clause with

respect to the partition deed.

14. In view of the aforesaid facts and circumstances, the

court is not persuaded to hold that the defendant No.4 is in breach

of the ad interim ex parte order dated 18.6.2007, for initiating any

proceedings against him under Section 2A of Order XXXIX of CPC.

In any case, the suit has already been taken to trial and is now

listed on 5.4.2013, for recording the plaintiff's evidence. When the

suit is finally decided, the issue pertaining to the car parking space

on the ground floor of the suit premises shall also be set at rest. In

such circumstances, the Court is not inclined to entertain the prayer

made in the application, which is resultantly turned down and the

application is dismissed.

15. Needless to state that the observations made

hereinabove are confined to the relief prayed for in the present

application and shall not be treated as an expression on the merits

of the suit, which is pending trial.

                                                      (HIMA KOHLI)
FEBRUARY 5, 2013                                          JUDGE
sk/mk/rs