Anjum vs Mohd Irfan
2018 Latest Caselaw 1385 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of Decision: 27th February, 2018
+                                  RFA 977/2016
       ANJUM                                           ..... Appellant
                          Through:      Mohd. Rais Farooqui, Advocate.
                                        (M:9810898754)
                          versus
       MOHD IRFAN                                         ..... Respondent
                          Through:      None.
       CORAM:
       JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. Order dated 4th July, 2017 passed by the Registrar records that despite service the Respondent/Defendant (hereinafter, 'Defendant') has not appeared. Defendant is proceeded ex-parte. Learned counsel for Appellant/Plaintiff (hereinafter, 'Plaintiff') submits that the Defendant was ex-parte even in the Trial Court.

2. This is an appeal against the impugned judgment/order dated 1 st August, 2016 by which the suit for permanent injunction filed by the Plaintiff was dismissed by the Trial Court. The brief facts are that the Appellant Ms. Anjum was the Plaintiff in the suit which was filed against the Defendant-Mohd. Irfan.

3. Plaintiff claims to be the owner of property bearing no.E-228/2, Abul Fazal Enclave, Part-II, Jamia Nagar, New Delhi measuring 50 sq. yards consisting of three floors i.e. ground, first and second floors (hereinafter, 'suit property'). She claims that she had purchased the property vide General Power of Attorney (Ex.PW-1/1), Agreement to Sell (Ex.PW1/2),

Receipt (Ex.PW1/4) and Affidavit (Ex.PW1/3) all dated 28th November, 2006. It is her case that on one occasion, while she was accompanying her husband to the BSES office, the Defendant who was carrying the original documents for the suit property, told her that he misplaced them and a complaint was registered with the P.S. New Friends Colony. He then began ill treating her, and his attitude towards the Plaintiff completely changed and she was subjected to mental torture. She also apprehended and suspected that the title documents were taken away by the Defendant and he intended to sell the suit property. Defendant is running his own business called Irfan Medicos. Subsequently, the Defendant deserted the Plaintiff and her children. Under these circumstances, the suit for injunction was filed before the Trial Court.

4. The Trial Court appointed a Local Commissioner on 27th November, 2010. The Local Commissioner reported that the Plaintiff resides with her children in the first floor of the property and the ground and second floors are given on rent by the Plaintiff. In the suit, Defendant initially put in his appearance but no pleadings were filed by the Defendant. Thereafter, the Defendant produced a few sets of documents to claim that he had further transferred the property to a third party. The matter was transferred to the Family Court. On 4th July, 2012, the Defendant was proceeded ex-parte as there was no appearance on his behalf.

5. Following issues were framed in the suit:

"1. Whether the plaintiff is entitled to a decree of permanent injunction? OPP

2. Relief, if any. "

6. The Plaintiff led the evidence of two witnesses PW-1 & PW-2. PW-1

exhibited the following documents.

 Ex.PW-1/1 to Ex.PW-1/4 - Copy of GPA, Agreement to Sell, Affidavit and Receipt.

      Ex.PW-1/5                          -       Copy of NCR No.155/2010
      Ex.PW-1/6 & 1/7                    -       Copy of complaints dated 9th
                                                  May, 2010 & 26th October,
                                                  2010.
      Ex.PW-1/8                          -       Copy of receipt of gas
                                                  connection
      Ex.PW-1/9                          -       Copy of bank account passbook
      Ex.PW-1/10 & 1/11                  -       Copies of electricity bills

7. Plaintiff also moved an application seeking exemption from filing the original suit title documents as the originals had been taken away by the Defendant. The said application was allowed. Plaintiff herself appeared as PW1. Plaintiff also adduced the evidence of Mohd. Rahil, who was the attesting witness to the GPA, Agreement to Sell and Receipt. He identified his signatures on the said documents. The Trial Court, however, dismissed the suit on the ground that the Defendant had furnished some sets of documents showing transfer of the suit property to third parties. On that basis, the Trial Court concluded that the Plaintiff had not been able to prove effective right and title in the suit property.

8. A perusal of the Trial Court record reveals that the Plaintiff has filed original documents including gas connection receipts, BSES bills and bank statements. Copies of the school fee book issued by the School have also been filed. All these documents bear the name and address of the Plaintiff.

The Trial Court has ignored all the evidence on record and has merely gone by the copies of few documents which were filed by the Defendant without being supported by any pleadings and affidavit. The said documents were also not proved in accordance with law. An order was passed on 29th November, 2010 by which the Defendant was asked to produce the original documents, copies of which were filed. That order was not even complied with.

9. It was totally erroneous on part of the Trial Court to go by documents which were not proved, and to rely upon the copies of the documents which were not referred to in the pleadings or in evidence. The documents filed by the Plaintiff on the other hand were all exhibited including the suit title documents and other documents which showed that the Plaintiff was residing in the suit property along with her children. Moreover, the Local Commissioner's report can also be read in evidence as per the provisions of Order XXVI of the Code of Civil Procedure, 1908 to the effect that the Plaintiff was residing in the suit property along with her children and was also earning rent from the tenants of the ground floor and second floor. Plaintiff cannot be non-suited in a suit for injunction on the basis of copies of documents that are neither pleaded nor proved.

10. The Plaintiff, as per the submission of learned counsel, has been awarded maintenance of Rs.6,000/- per month by the Defendant who does not live with his family. Copies of the documents filed by the Defendant in fact show that there is a clear threat that Plaintiff could be dispossessed and third party rights may be created if an injunction is not granted in her favour. The Trial Court has gone on the erroneous presumption that all the documents filed by the Defendant are true, correct and proved in accordance

with law. A perusal of the record appears to be the opposite.

11. The Plaintiff is clearly in possession of the property. She has been residing there with her children and earning rent. The title documents of the Plaintiff have been proved. There is no reason to refuse relief to the Plaintiff. In these circumstances, the Defendant is restrained from threatening or dispossessing the Plaintiff and/or her children, or from selling, alienating or transferring or creating any third party interest in the suit property. The suit is decreed in terms thereof. Decree sheet be drawn.

12. Appeal is allowed with no orders as to costs.

PRATHIBA M. SINGH Judge FEBRUARY 27, 2018/dk