Amardeep Singh Chandhok & Another vs Kulbir Singh Chandhok & Others
2014 Latest Caselaw 52 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                            C.S. (OS) No.2672 of 2013

                                           Decided on : 3rd January, 2014

AMARDEEP SINGH CHANDHOK & ANR.       ...... Plaintiffs
            Through: Mr. Manish Kumar, Mr. Jayant K. Mehta,
                     Mr. Amit Kumar & Mr. Piyush Kaushik,
                     Advocates.

                         Versus

KULBIR SINGH CHANDHOK & ORS.              ...... Defendants
              Through: Mr. Bhagat Singh, Advocate for D-1 & 9.
                       Counsel for D-2 to 8;
                       (appearance not given).

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

I.A. No.21254/2013

1. This is an application filed by the plaintiffs under Order 39 Rule 1

& 2 CPC.

2. The plaintiffs had filed a suit for partition, declaration, rendition of

accounts and permanent injunction. The case setup by the plaintiffs in

the plaint was that the plaintiffs are the grand sons of Late Sh. Man Singh

Chandhok and that the defendant No.1, Kulbir Singh Chandhok, their

father, is trying to divest them of their legitimate share in the three

properties, details of which are given in Schedule A attached to the plaint

being the ancestral properties. It has been stated that the plaintiffs are

entitled to 1/6th undivided share in property No.B-39, Greater Kailash,

Part-I, New Delhi, i.e., 50 per cent share in the ground floor and 50 per

cent share in the 1/3rd portion of the basement and roof rights. The share

is also sought to be claimed in property No.149, Kilokari, near Maharani

Bagh, New Delhi and property No.KC-7A, Ashok Vihar, Delhi. It has

been alleged in the plaint that the aforesaid three properties have been

purchased from the funds arising from the business which was being run

by their late grandfather. The plaintiffs have also prayed in the plaint in

the prayer clause as under :-

"a) Pass a preliminary decree for partition of the property detailed in Schedule-A declaring plaintiffs to be the owner of 50 per cent, i.e., half share in the each and every property as detailed out in Schedule-A;

b) Pass a final decree for partition of the property as detailed out in Schedule-A declaring the plaintiffs owner of the 50 per cent/half share, i.e, 1/4th share each in the property as detailed out in Schedule-A;

c) Appoint Local Commissioner directing Local Commissioner to suggest modalities on partition of the suit property by metes and bounds and visit the suit property and examine books and

accounts of all the properties as stated in Schedule „A‟ and further to prepare a report detailing out the account of assets and liability;

d) Pass a decree of partition allocating 50 per cent, i.e, 1/2 share of the plaintiffs in the immovable property as per the report prepared by the Local Commissioner and further directing the plaintiff to be put in possession of share allocated to plaintiff;

e) Pass a decree for permanent injunction restraining the defendants, their agents, employees, liens or other persons in any way from selling, transferring, alienating, disposition, dispossessing or dealing with the properties as set out and detailed in Schedule „A‟;

f) Pass such other and further order/orders as may be deemed fit and proper on the facts and in the circumstances of this case."

3. This court on the very first date, that is, on 27.12.2013 during

vacation, was pleased to pass an ex parte ad interim stay restraining the

defendant No.1 only from creating any third party interest in respect of

the aforesaid three properties till 30.12.2013 so as to ensure that no

prejudice is caused to the plaintiffs till the time the defendants are served.

4. On 30.12.2013, the counsel for defendant Nos.1 and 9 had put in

appearance and raised an objection regarding the continuation of the ex

parte ad interim stay, both with regard to property No.2 and the property

No.3, which were situated in Kilokari and Ashok Vihar respectively on

the ground that the said two properties are in the name of defendant No.1

and his second wife by the name of Neeta Chandhok and, therefore, the

stay need not be continued. The court observed that as the appearance on

behalf of remaining defendants, that is, defendants other than defendant

Nos.1 and 9 had not been put in and no written statement has been filed,

the stay was continued till 2.1.2014.

5. The counsel for defendant Nos.2 to 8 has put in appearance. The

counsel for defendant Nos.1 and 9 vehemently opposes the continuation

of the ex parte ad interim stay. It was submitted by him that in order to

pass an ex parte ad interim stay, the plaintiffs have to satisfy three

essential requirements, namely, the existence of a prima facie case, the

balance of convenience being in their favour and that the plaintiffs will

suffer irreparable loss in case the ex parte ad interim injunction is not

granted. It has been contended by the learned counsel that so far as the

property situated in Ashok Vihar, which is the third property, is

concerned, that is admittedly in the name of one Neeta Chandhok, the

second wife of defendant No.1 and the plaintiffs themselves have placed

on record the photocopy of the Conveyance Deed purported to have been

executed by the DDA in favour of Neeta Chandhok way back in the year

1996 and, therefore, no claim for partition in respect of the said property

would lie, more so, when the plaintiffs have not sought any declaration in

this regard. It is further stated that Neeta Chandhok is not even a party to

the suit.

6. The learned counsel for the plaintiffs has not been able to meet the

argument of the learned counsel for defendant Nos.1 and 9. He has

contended that there is a memorandum of settlement, a photocopy of

which is in plaintiffs‟ possession which he would like the court to pursue

in order to show that the defendant No.1 has himself admitted that the

said property has been purchased from the funds generated by the

ancestral business.

7. I have considered the rival contentions. At the outset, it must be

pointed out that in order to get an ex parte ad interim stay or for that

matter even in order to get the stay on merits, the plaintiffs must show to

the court that it had got prima facie good case apart from satisfying the

two other requirements, namely, existence of balance of convenience in

their favour and the fact that they will suffer irreparable loss in case such

an injunction is not granted. In the instant case, it could not be said that

plaintiffs have got prima facie a good case. The reason for this is that the

plaintiffs‟ own case is that the property which is situated in Ashok Vihar

is registered by way of a Conveyance Deed in favour of Neeta Chandhok.

In law, a person in whose name the property is registered is the actual

owner of the property. Moreover, this Conveyance Deed has been

executed by the DDA in favour of Neeta Chandhok way back in the year

1996 while as the suit is filed in the year 2013, that is, after a lapse of 17

years. A person who is the registered owner is the holder of the property

in law. The plaintiffs at best could have sought a declaration to the effect

that the said property is an ancestral property although prima facie even

that declaration would have been time barred as the plaintiffs has not

given any date on which he has come to know about the Conveyance

Deed and Article 58 of the Limitation Act Schedule I specifies that suit

for declaration has to be filed within a period of three years. De hors this

defect, no such declaration has been sought. In the light of this fact, I feel

that the plaintiffs cannot be said to be having any case much less a prima

facie case and by passing an ex parte ad interim restraint order against the

property situated in Ashok Vihar against the persons who are not even a

party to the suit, gross injustice has been done to the said party.

Moreover, there is no balance of convenience in favour of the plaintiffs or

that they are not going suffer an irreparable loss in case stay is denied.

8. I, therefore, feel that the said order, so far as the third property in

question is concerned, that can under no circumstances be continued.

Accordingly, the said ex parte stay order so far as property No.KC-7A,

Ashok Vihar, Delhi which was granted on 27.12.2013 and extended on

30.12.2013 is concerned, the same stands vacated.

9. List the matter before Joint Registrar for admission/denial on

4th March, 2014.

V.K. SHALI, J.

JANUARY 03, 2014 'AA'