Dr. Rajiv Dhingra vs Smt. Vindra Panchpal & Anr.
2013 Latest Caselaw 5182 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: November 12, 2013

+                         CM(M) No.1116/2013

      DR RAJIV DHINGRA                                      ..... Petitioner
                    Through             Mr.Sanjeev Sharda, Adv.

                          versus

      SMT VINDRA PANCHPAL & ANR                              ..... Respondents
                   Through  None

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

C.M. No.16453/2013 (exemption) Exemption allowed, subject to just exceptions. The application is disposed of.

CM(M) No.1116/2013

1. In the present petition, the petitioner has assailed the order dated 30th August, 2013 passed by the learned Addl. District Judge-01, South District, Saket Courts, New Delhi in the appeal being MCA No.14/11 filed by the petitioner under Order XLIII CPC. The said appeal was filed against the order dated 7th February, 2011 passed by the learned Civil Judge whereby the application of the petitioner under Order XXXIX, Rules 1 & 2 CPC was dismissed.

2. The case of the petitioner is that he has purchased the first floor out of the property bearing No.B-140, Shivalik Enclave, New Delhi-110017 vide sale documents dated 1st July, 1994 and since then, the petitioner has been

residing therein and has been using the terrace thereon along with other co- occupants. He has been using the said terrace for celebrating the family functions and holding the other programmes. His case is that the owner of the property now wants to construct a portion on the terrace and, therefore, the suit for injunction was filed by the petitioner.

3. During the course of arguments, the learned counsel for the petitioner was asked to show any of the title documents with regard to the terrace in favour of the petitioner but he failed to do so, except the statement was made that since the terrace is being used by the petitioner, therefore, the petitioner has a right on the terrace.

4. The said arguments are totally misconceived. In the absence of any title, the petitioner cannot claim ownership on the terrace as claimed by him. It is also a matter of fact that the two Courts below have already examined the said aspect and has given the detailed findings against the petitioner.

Scope of Appellate Interference in Interlocutory Orders

5. In Wander Ltd. vs. Antox India P. Ltd., 1990 (Supp) SCC 727, their Lordships had analysed the powers of the Appellate Court in such matters as follows:-

"The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably

possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion".

6. In the present case, there is no material available to make out a prima facie case nor the finding of the learned trial Court show that it acted arbitrarily or capriciously or perversely in the exercise of its discretion. Thus, no interference is called for.

7. In view of the above, there is no merit in the present petition. The impugned order does not suffer from any infirmity. The present petition is accordingly dismissed.

C.M. No.16452/2013 (for stay)

Since the main petition has already been dismissed, the present application has become infructuous and the same is disposed of as such.

(MANMOHAN SINGH) JUDGE NOVEMBER 12, 2013