Delhi High Court
Rajiv Bhatnagar vs Ish Bhatnagar on 12 March, 2018
$~44
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 12th March, 2018
+ C.R.P. 38/2018 and CM APPL.9405-9406/2018
RAJIV BHATNAGAR ..... Petitioner
Through: Mr. Amit Aggarwal, Adv. with
Ms. Vidhi Goel, Adv. &
Mr. Vinod Kapoor, Advocate
versus
ISH BHATNAGAR ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner and the respondent herein are brother and sister
to each other, they being locked in more than one litigation respecting
property which concededly was originally owned by their predecessor-
in-interest. The petitioner herein had earlier instituted suit (CS (OS)
No.617/2013) which was filed on the original side of this court
wherein he sought relief of the partition of the properties - moveable
and immoveable besides other reliefs in the nature of declaration,
injunction - prohibitory and mandatory and rendition of accounts.
The present proceedings relate to a subsequent suit (CS (OS)
No.910/2015, new No.CS No.10408/2016) which was instituted by the
respondent against the petitioner for relief of recovery of possession,
mesne profits/damages for use and occupation of the premises which
is part of the estate involved in the previous suit. The petitioner
(defendant of the said suit) had sought rejection of the said plaint by
moving an application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 which was dismissed by the additional district judge
by order dated 05.01.2018. The present petition seeks to assail the said
order.
2. In the previous suit instituted by the petitioner, inter alia,
seeking partition, an interim injunction order was granted in his favour
by order dated 05.04.2013 whereby the defendant of the said suit, i.e.,
the plaintiff in the present suit (the respondent) was restrained from
alienating, encumbering or parting with possession of property, i.e. I-
12, Jangpura Extension, New Delhi, she also being restrained from
dispossessing the plaintiff of the suit, i.e. the petitioner from the
portion in his occupation or from disconnecting the electricity or water
supply. It is the submission of the petitioner that the said ad interim
injunction order continues to operate till date.
3. The suit instituted by the respondent herein is based on her
claim that she is the absolute owner of the aforementioned property,
the title therein having been transferred to her by a gift deed executed
and registered by the father of the parties. The validity of the said
registered gift deed is questioned by the petitioner herein.
4. The ground on which the petitioner sought rejection of the
plaint of the second suit filed by the respondent herein primarily were
that in the face of the aforementioned ad interim injunction operating
in the first suit which was instituted by him, no cause of action
contrary to such restraint order could have been claimed or pressed. It
was also his contention that the plaint merits rejection since the factum
of such ad interim injunction order was not disclosed in the plaint by
the respondent.
5. To say the least, the contentions in the application under Order
VII Rule 11 CPC are wholly misconceived and frivolous. An ad
interim injunction order is intended primarily to protect the subject
matter or the interest of the parties while their rival claims are
adjudicated upon. Such ad interim injunction cannot operate to the
effect that a party otherwise entitled be restrained from prosecuting his
interest in accordance with law. The omission on the part of the
respondent to mention the existence of an ad interim injunction order
in these circumstances is also inconsequential.
6. The learned trial court has taken an appropriate view on the
application, which does not call for any interference.
7. The petition is thus dismissed in limine with costs of
Rs.20,000/- to be deposited with Delhi High Court Legal Services
Committee within a week.
8. Pending application also stands disposed of.
R.K.GAUBA, J.
MARCH 12, 2018
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