Sh. Vijay Kumar vs Munna (Pahlwan) & Ors.
2014 Latest Caselaw 110 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.1/2014 & CM Nos.6/2014 & 7/2014

%                                                    6th January, 2014

SH. VIJAY KUMAR                                            ......Appellant
                          Through:       Mr. R.S.Bhatia, Advocate.


                          VERSUS

MUNNA (PAHLWAN) & ORS.                               ...... Respondents
                Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           The costs imposed on 3.1.2014 are waived. Let the appeal be

argued.

2.           This first appeal under Section 43 (i) (r) of CPC impugns the

order of the trial court dated 25.11.2013 by which the appellant/plaintiff's

application under Order 39 Rules 1 and 2 was dismissed.

3.           Appellant/plaintiff has filed the subject suit for injunction

claiming ownership of the subject property being plot no.66, admeasuring

111 sq. yds., Rect. No.11, Out of K.No. 10/2, Revenue Estate of Village

Burari, Delhi. As per the plaint, the case of the appellant-plaintiff was that
FAO 1/2014                                                                   Page 1 of 4
 in January, 2012, plaintiff had mortgaged the said property with the

respondent no.1 for a sum of Rs.4.50 lacs. It is further the case of the

plaintiff that defendants agreed that on the plaintiff mortgaging the suit

property, the respondents-defendants will pay a sum of Rs.4.50 lacs to the

plaintiff. Appellant-plaintiff claimed that on 10.1.2012, a mortgaged deed

was executed and he only retained a photocopy. The case of the plaintiff is

that when he approached defendants on 9.5.2013 to give back the loan

amount, and return the property documents, the defendants allegedly tore the

photocopy of the mortgage deed which was with the appellant-plaintiff. The

subject suit thereafter was filed seeking injunction to restrain the

respondents-defendants etc. from interfering with the peaceful use and

enjoyment of the suit property. Mandatory injunction also was claimed that

respondents-defendants should handover the original title documents of the

suit property back to the plaintiff.

4.           Trial court, while dismissing the application of the appellant-

plaintiff under Order 39 Rules 1 and 2 CPC had given the following

conclusions:-

(i)   Though plaintiff claimed the property having been mortgaged in

January, 2012, however, admittedly that the plaintiff did not file any proof

whatsoever of the alleged mortgage, and on the contrary, defendants filed
FAO 1/2014                                                               Page 2 of 4
 the documents which showed that the rights in the suit property were

transferred in favour of the defendants no.2 and 3 by documents being the

Agreement to Sell, Will, General Power of Attorney etc which were way

back of the year 1996. Appellant-plaintiff did not dispute these documents

as per the pleadings in the trial court as has been observed in the impugned

order.

(ii)     Trial court has also observed that the case of the plaintiff is not

believable that he went for returning of the alleged amount of Rs.4.50 lacs to

the defendants by cheque.

(iii)    Trial court also notes that admittedly, even assuming there is a

mortgage, plaintiff is not shown to have repaid the mortgage amount, and

therefore the suit for injunction would not lie.

5.             In addition to the aforesaid conclusions of the trial court, I

would like to note the following three additional conclusions:-

(i)      The plaint does not show that if the plaintiff received a sum of Rs.4.50

lacs in January, 2012, then how that amount was received and what was the

proof of the plaintiff actually having received this amount from the

defendants in January, 2012.

(ii)     Plaintiff in the suit plaint has not given any proof of the alleged

cheque which he took for repaying the alleged loan of Rs.4.50 lacs.
FAO 1/2014                                                                    Page 3 of 4
 (iii)   It is not believable that the plaintiff- mortgagee would only have one

photocopy of the alleged mortgaged deed and he does not have any other

photocopy or any other proof whatsoever of the mortgaged deed.

6.            In view of the above, I do not find that the Trial court has

committed any error in dismissing the application of the appellant-plaintiff

under Order 39 Rules 1 and 2 of CPC. Plaintiff has no prima facie case.

Merely filing of an injunction suit does not entitle a plaintiff to interim

injunction because no doubt every disputed question of fact requires framing

of issues but it is only a bonafide disputed question which entitles grant of

interim injunction.

7.            The appeal is therefore dismissed, leaving the parties to bear

their own costs.




JANUARY 06, 2014                                VALMIKI J. MEHTA, J.

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