Monika Devi & Anr. vs Ashwani Raj & Ors.
2023 Latest Caselaw 638 Del

                          $~56
                          * IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                          Judgment delivered on: 23.02.2023
                          +     CM(M) 294/2023
                                MONIKA DEVI & ANR.                           ..... Petitioner
                                             versus
                                ASHWANI RAJ & ORS.                           ..... Respondents

                          Advocates who appeared in this case:
                          For the Petitioner   : Mr. Abhishek Gupta, Adv.


                          For the Respondent : Mr. Ashu, Adv.
                          CORAM:
                          HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
                                             JUDGMENT

TUSHAR RAO GEDELA, J. (ORAL) [ The proceeding has been conducted through Hybrid mode ]

CM APPL. 9022/2023 (Exemption)

1. This is an application seeking exemption from filing certified copies of the annexures.

2. Exemption is allowed, subject to all just exceptions.

3. However, the certified copies of the exempted documents may be filed within four weeks from today.

4. Application stands disposed of.

CM(M) 294/2023 & CM APPL. 9021/2023 (Stay)

5. The petitioners challenges the orders dated 05.01.2023 and 04.02.2023 passed by the First Appellate Court in MCA/SCJ/1/23 titled "Monika Devi & Anr. Vs. Ashwani Raj & Ors." whereby the First

Signature Not Verified Digitally Signed

Signing Date:28.02.2023 15:37:15 Appellate Court has only issued notice to the respondents.

6. Learned counsel appearing for the petitioners submits that the learned Trial Court has dismissed the application under Order XXXIX Rule 1 & 2 CPC, 1908 filed on behalf of the petitioners on the ground that the relief sought in the interim application as well as in the main suit were the same and therefore, if the interim injunction were to be passed, it would be akin to granting the final relief which would be contrary to the settled law.

7. Learned counsel submits that it was in challenge to the said order of the learned Trial Court dated 17.12.2022 that the appeal, wherefrom the present petition arises, was filed before the First Appellate Court.

8. Learned counsel submits that First Appellate Court has also merely issued notice without deciding the application seeking stay. Learned counsel submits that petitioner before this Court are senior citizens and in possession of the subject suit property and the petitioner No.1 is owner by virtue of title flowing from the registered sale deed and petitioner No.2 is her husband.

9. Learned counsel also submits that this Court ought to interfere under the jurisdiction conferred upon it under Article 227 of the Constitution of India.

10. It is clear from the record that the petitioner had filed the miscellaneous civil appeal before the First Appellate Court seeking relief which was refused by the learned Trial Court vide order dated 17.12.2022 and therefore apparently there was an urgency which was being faced by the petitioners herein.

11. Issue notice. Mr. Ashu accepts notice on behalf of the

Signature Not Verified Digitally Signed

Signing Date:28.02.2023 15:37:15 respondents.

12. This Court has considered the fact that petitioner No.1 is the owner by virtue of title under a registered sale deed as submitted by learned counsel appearing for the petitioner and the presumption of having valid title as well as possession, in the favour of petitioner No.1.

13. This Court having regard also to the fact that the petitioners are senior citizens who are aged about 73 and 75 respectively, is also of the opinion that the learned Trial Court as well as the learned First Appellate Court ought to have taken the same into consideration before passing the order.

14. Having heard Mr. Gupta, learned counsel appearing for the petitioner and after perusing the record filed, as well as the orders dated 05.01.2023 and 04.02.2023 passed by the First Appellate Court, this Court is of the view that to sub-serve the interest of justice and to protect the petitioner for the time being, till the learned First Appellate Court takes up the appeal and application under Order XLI Rule 5, CPC, 1908 for consideration, appropriate directions need to be passed.

15. Learned First Appellate Court is directed to hear and decide the application under Order XLI Rule 5 CPC, 1908 on the date already fixed i.e. 12.04.2023. In the interregnum and till 12.04.2023 status quo regarding possession of the suit property be maintained and shall not be disturbed. Parties shall not seek adjournment on 12.04.2023.

16. The aforesaid order is without prejudice to the rights and contention of the respondents who are represented through Mr. Ashu, learned counsel appearing for the respondent.

17. In view of the above, the present petition alongwith the

Signature Not Verified Digitally Signed

Signing Date:28.02.2023 15:37:15 application is disposed of in above terms.

TUSHAR RAO GEDELA, J .

FEBRUARY 23, 2023 ms

Signature Not Verified Digitally Signed

Signing Date:28.02.2023 15:37:15