Delhi High Court
Shri Tarun Singhal vs Shri Devender Kumar & Ors. on 7 September, 2015
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DICTATED ON: 07.09.2015
+ FAO (OS) 98/2014, CM APPL.3154/2014 & 18207/2015
SHRI TARUN SINGHAL ..... Appellant
Through: Mr. N.S. Dalal with Mr. Pankaj
Gupta, Advocates.
versus
SHRI DEVENDER KUMAR & ORS. ..... Respondents
Through: Mr. Pratyush Sharma, Advocate
for Resp-1.
Mr. D.K. Rustagi, Advocate for Resp-3.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
S.RAVINDRA BHAT, J. (ORAL)
1. This is an unsuccessful plaintiff's interlocutory appeal directed
against the order of the learned Single Judge dated 06.01.2014
denying his application for temporary ad interim injunction, in a
pending suit for declaration, permanent injunction. The permanent
injunction claimed is in respect of possession of the suit property.
2. The plaintiff claims and averred to his acquiring title - and
possession - over a 300 square yard industrial plot (described as No.
143/1012, Village Kanjhawala, Delhi- hereafter "suit property") from
one Jagjit Singh. The right, title and interest to the said suit property, it
is said, had been conveyed through a registered sale deed dated
21.09.2006. He claims peaceful and continuous possession over the
suit property as well, ever since. The vendor, Jagjit Singh, according
to the plaintiff, in turn, was attorney of the property, by virtue of a
deed of power of attorney dated 15.07.2002, said to have been
executed by Devender Singh (arrayed as the first defendant in the suit-
and the first respondent here). The plaintiff contended that he
constructed a boundary wall on the plot, in 2007 to protect the suit
property. According to him, Devender Singh had attempted to trespass
into the suit property then. Alleging that he found some building
material on the suit property when he visited it on 14.04.2013, which
belonged to the first defendant, he complained to the authorities. He
also alleged that on 20.08.2013, the first defendant along with his
associates threatened the plaintiff and asked him to leave the spot, or
else he would be eliminated. In the meanwhile, he claimed that he
became aware of a decree dated 13.01.2010, in CS (OS) 1413/2009,
(Joginder Singh and Anr. v Devender Kumar & Ors), and, therefore,
approached the Court seeking declaration that the decree was void and
not binding upon him; he also sought permanent injunction.
3. The learned Single Judge, while considering the application for
ad-interim temporary injunction, noticed that the documents of title
relied on by the plaintiff disclosed that his vendor, Jagjit Singh, is said
to have acquired title from the first defendant by a registered power of
attorney document dated 15.07.2002 and a receipt for `80,000/- in
advance from the said Jagjit Singh. Though a copy of the receipt for
the said payment allegedly made at the time in favour of Jagjit Singh
was placed on record, the registered power of attorney said to have
been executed in favour of Jagjit Singh was not placed on the record
in the suit which has led to the present appeal. The plaintiff conceded
that no sale deed was executed by his vendor, conveying title. In the
hearing before the learned Single Judge, heavy reliance was placed on
the complaint filed by Devender Kumar. The latter- first defendant
averred that he sold the suit property to the fourth defendant on
01.01.1999 through registered power of attorney, receipt, agreement to
sell and by handing over possession; he sold it to the second defendant
on 15.07.2003 and she, in turn assigned her rights to the third
defendant by executing the requisite documents on 16.07.2009.
4. The Single Judge was of the opinion that the plaintiff's (a)
inability to produce any document prima facie disclosing legitimate
right of his vendor over the suit property and (b) non-disclosure of any
document or material to establish, prima facie, the plaintiff's
possession, disentitled him to any ad interim injunctive relief. She was
also of the opinion that given the holding in Suraj Lamp & Industries
(P) Ltd v State of Haryana 2012 (1) SCC 656, unregistered power of
attorney documents could not be prima facie said to amount to
documents of title.
5. The plaintiff's other argument in respect of the decree in CS
(OS) 1413/2009, i.e. that it was collusive, was repelled by the Single
Judge. She noted that there the suit was for permanent injunction and
specific performance in respect of the suit property. The parties were
referred to mediation and in terms of the settlement arrived at, a
decree was drawn. The decree recorded the statement of the first two
defendants (herein) not to interfere with the plaintiffs' (the third and
fourth defendants) possession and also convey title to the property
they were concerned with. The Single Judge held that whether the
decree was collusive or not was a matter to be gone into after a full
trial. Observing that the plaintiff's claim for protecting possession was
based on a receipt, she noticed that he relied only on a photograph and
receipt for purchase for some material. That according to her was
insufficient to establish possession. Accordingly, the application for
temporary injunction was denied.
6. During the hearing before us, learned counsel for the plaintiff
appellant stressed that the learned Single Judge erred in holding that
possession was not established. It was contended that the plaintiff's
materials in respect of continuous possession, pre-dated the
defendant's claim for interest and possession over the property. As far
as materials with respect to possession were concerned, learned
counsel highlighted that in a complaint, the defendant had stated that
he sold the property to Jagjit Singh. Therefore, the learned single
judge, he argued, should have granted protection during pendency of
the suit.
7. We find no infirmity with the reasoning or approach of the
learned Single Judge, who took note of all material circumstances and
contentions and dealt with them. Whether the decree which the
plaintiff claims is collusive or not, cannot be gone into without a full
trial. It requires examination of all material evidence; an assessment at
the stage of a temporary injunction application would, at best be
sketchy. As far as possession is concerned, the learned Single Judge,
in our opinion, quite correctly focused first on whether the plaintiff
had a prima facie strong case. Here, the assessment of materials led
her to say that the plaintiff did not even place on record a copy of the
registered power of attorney said to have been executed in favour of
his vendor. Furthermore, the plaintiff was unable to show any prima
facie convincing evidence to support his claim for continuous
possession of the suit property since the time he claimed to have
acquired rights over it, i.e., in 2006.
8. The Supreme Court has repeatedly highlighted the importance
of courts' need to assess claims for ad-interim temporary injunctive
relief taking into consideration and giving due weight to all three
elements: prima facie strength of the claim; balance of convenience,
and irreparable injury. Similarly repeated cautionary notes have been
sounded against searching and in-depth appellate review of reasoned
assessments by courts of first instance, disclosing judicious exercise of
discretion while granting (or denying) such ad-interim relief. Our
appellate review of the materials - and taking into consideration the
arguments advanced before us, leads us to conclude that the Single
Judge did exercise discretion soundly in denying the temporary
injunction sought. This Court affirms the impugned order. The present
appeal merits rejection and is accordingly dismissed.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
SEPTEMBER 07, 2015
