IN THE COURT OF SH. ASHISH AGGARWAL, CIVIL JUDGE01, DWARKA COURT, NEW DELHI C.S.NO: 287/11 Unique case ID No: 02405C0110072011 [ENTITY] Plaintiff Vs. [ENTITY] & Ors. Defendants 19.07.2011 O R D E R
1 By this order, the application under [SECTION] and [SECTION] of [ACT] is decided. By the said application, the plaintiff has prayed for direction to the defendant to maintain status quo over the suit property bearing no. WZ 92, C2, Village Todapur, Inderpuri, New Delhi and for interim injunction restraining the defendant no. 1 from raising construction thereon. 2 The case of the plaintiff is that he has been in joint possession of the suit property. The plaintiff claims to be the owner of the suit property having inherited it from his ancestors. The defendant no. 1 is stated to be a land grabber. It is further stated that the defendant no. 1 has dispossessed the plaintiff from a portion of the suit property on 24.05.2010. It is further stated that the property is constructed on government land and sale and purchase of immovable property is prohibited in the area. The plaintiff has further stated that the defendant no. 2 has been claiming to have sold the property to defendant no. 1, which itself is illegal and impermissible. It is further stated that defendant no. 1 is a trespasser in the suit property. 3 Defendant nos. 1 and 2 have filed their written statement. It is stated in the written statement of defendant nos. 1 and 2 that the suit is barred by [SECTION] of the [ACT] and by [SECTION] of [ACT]. It is pointed out that the plaintiff and his family members had earlier instituted a suit which was disposed off by way of compromise by order dated 23.01.1997. The terms of compromise have been adhered to. It is further stated in the written statement that the court has no pecuniary jurisdiction to entertain the suit. The defendants no.1 and 2 have also pleaded that the suit is liable to be dismissed since according to the plaintiff himself the land belongs to the government. The averments made in the plaint have been denied.
4 Defendant no. 3 has stated in its written statement that the suit is not maintainable and that it fails to satisfy the requirements of [SECTION] of the [ACT].
5 Defendant no.4 has stated in its written statement that the suit does not disclose any cause of action and that the plaintiff has not come to the court with clean hands. It is also stated that the suit is not maintainable since prior statutory notice has not been served upon defendant no. 4.
6 The relief that the plaintiff is claiming through the instant application is directed against the defendant no.1. The plaintiff has sought to restrain construction over the suit property by the defendant no.1 and has prayed for status quo in respect of the property. In my opinion the plaintiff is not entitled to the grant of interim injunction prayed by him, owing to the following reasons:
A. The plaintiff has, through the suit, prayed for a declaration that he is the owner of the suit property. The plaintiff has also prayed for consequential relief. The prayer clause interestingly reads as under :
"It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to pass:
(i) a decree declaring that the Plaintiff as the real owner and defendant no.1 is a trespasser.
(ii) a decree for possession of plaintiff and dispossession of defendant no.1 from the suit property.
(iii) mandatory injunction directing defendant no.3 and 4 not to grant any electricity and/or water connection on the aforesaid property to defendant no.1.
(iv) permanent injunction directing defendant no.1 not to undertake construction and status quo of the disputed property is to be maintained.
(v) any other order/relief which this Hon'ble Court may deem fit and proper may also be passed in favour of the plaintiff and against the defendants."
For the relief of declaration of ownership over immovable property and consequential relief of injunction, the plaintiff is required to value the suit for the purpose of court fees in accordance with [SECTION] of the [ACT]. From the plaint it is amply evident that the relief of declaration prayed for by the plaintiff is not surplusage and is a condition precedent to the grant of consequential relief. The plaintiff has clearly pleaded in paragraph no. 8 of the plaint that the defendants have denied the title of the plaintiff and has set up a rival claim over ownership of the suit property. Declaration of ownership in these circumstances is essential in order to obtain consequential relief as held in the case of [PRECEDENT]. In as much as the declaration of ownership is precondition to the grant of injunction, keeping in view the second proviso of [SECTION] of the [ACT] and the decision of Full Bench of Hon'ble High Court of Delhi in the case of [PRECEDENT], the present suit is required to be valued as per the market value of the suit property. The said market value would also be the value of the suit for the purpose of jurisdiction as laid down in [SECTION] of the [ACT]. For the relief of recovery of possession of the suit property too, the plaintiff is required to value the suit as per market value of the suit property, as provided in [SECTION] of the [ACT] which would also be the value of the suit for the purpose of jurisdiction as laid down in [SECTION] of the [ACT]. None of this has been done. The suit has not been incorrectly valued. If valued in the manner provided by law, the suit is likely to be beyond the pecuniary jurisdiction of this court. In a suit which cannot be entertained by the court, the court would also not be competent to grant interim injunction.
B. In paragraph no. 7 of the plaint, the plaintiff has stated, "That the property in question is a government land which falls within the area of ridge forest where sale and purchase of immovable property is strictly prohibited". In prayer (i) of the plaint, the plaintiff has prayed for "A decree declaring that the plaintiff as the real owner and defendant no.1 is a trespasser". It is strange that on one hand the plaintiff has stated that the suit property belongs to government and on the other hand he is praying for a decree declaring him as its owner. The pleas of the plaintiff are contradictory and cannot be sustained.
C. The suit property has not been correctly shown in the site plan or defined in the plaint. In paragraph no. 2 of the plaint, the plaintiff has claimed to be the owner and occupant of the "property in question". He has not explained either in paragraph no.2 or in the previous paragraphs as to which property he is referring to. In paragraph no.5 of the plaint, the plaintiff has stated that he has been dispossessed from a portion of the property bearing no. WZ92C2, Village Todapur. This portion has not been specifically described in the plaint. The site plan shows not only property no. WZ92 C2 but also WZ92C1.
D. The plaintiff has stated in the plaint that the sale of the suit property by defendant no.2 to defendant no.1 is illegal. Yet the plaintiff has chosen not to assail the said transaction. No prayer has been made by the plaintiff to declare the said sale as invalid or to cancel the sale documents.
E. The plaintiff has not placed on record any document to establish his ownership over the suit property. Despite being aware that the defendant is denying the title of the plaintiff, the plaintiff has not pleaded in the plaint as to how he acquired ownership rights over the suit property. He has not filed any document showing transfer of the suit property in his favour. There is nothing on record to substantiate the claim of the plaintiff over ownership of the suit property. F. The plaintiff has concealed material facts from the court. He has not disclosed that a previous suit for permanent injunction had been filed in respect of the same property to which the plaintiff was a party and which had been disposed of by way of compromise. Since the issue of ownership and possession over the suit property has been raised by the plaintiff during the present suit, it was obligatory upon the plaintiff to disclose previous litigation in respect of the same property. Yet the plaintiff has chosen to conceal this fact. It is only the defendant no. 1 and defendant no.2 who have disclosed about the said previous suit in their written statement. By his conduct of having withheld material facts from the court, the plaintiff cannot be stated to have come to court with clean hands and he has disentitled himself to the discretionary relief of injunction.
G. Although the plaintiff is seeking injunction to restrain the defendant no.1 from raising construction, it has nowhere been pleaded in the plaint that the defendant is trying to carry out construction on the suit property. In order to make out a case for grant of injunction, the plaintiff has to demonstrate not only the existence of the right but also a threat of invasion of the said right. An injunction is granted only when the injury to the rights of plaintiff is reasonably expected. An injunction is not issued to restrain a person from doing that which he is not attempting or intending to do. In the case of [PRECEDENT], the Hon'ble Rajasthan High Court held that where there is no threat of forcible dispossession, the plaintiff is not entitled to the grant of any injunction restraining such dispossession. In the case of [PRECEDENT], the Hon'ble Punjab and Haryana High Court observed as under:
"In other words, there must be some overt act on the part of the defendant to invade or a threat to invade the plaintiff's right or commission of an act on the part of the defendant which is contrary to the plaintiff's rights. Except in so far as the above contingencies, no perpetual injunction could be granted against the defendant under the Act. "
Unless the defendant threatens to or attempts to carry out construction, cause of action does not arise in favour of plaintiff and the plaintiff cannot approach the court to restrain the said activity.
The expression "cause of action" has been succintly explained by Hon'ble High Court of Delhi in the case of [PRECEDENT] in which it was observed as follows:
"What then is a cause of action? Till there is no cause, there cannot be any action. For a cause, there has to be a right to sue. Infringement of a right or a clear and unequivocal threat to infringe that right would constitute a cause to bring an action. Whether a particular threat gave rise to a compulsory cause of action depends, upon the question whether that threat effectively invades or jeopardises the right. To constitute a cause of action, first is the coming into existence of a right and secondly, its infringement or threat to be infringed."
7 For the aforesaid reasons, the plaintiff has failed to establish that he holds a better title over the suit property than the defendant. He has been unable to make out a prima facie case. Balance of convenience is also not in favour of the plaintiff. It cannot be stated that in case construction is permitted to proceed, the plaintiff would suffer irreparable loss or injury.
8 There is no merit in the application under [SECTION] and [SECTION] of [ACT] filed on behalf of the plaintiff. The application is dismissed.
([ENTITY]) Civil JudgeI/Dwarka Courts Delhi/19.07.2011