FAO(OS) 22/2010 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI 20. + FAO(OS) 22/2010 UGGER SAIN JAIN ..... Appellant Through: Dr. Anurag Kumar Agarwal, Mr. Umesh Mishra, Advocates versus RAJINDER JAIN ..... Respondent Through: None CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R % 12.01.2010 This appeal has been preferred by the appellant-defendant in a suit for partition filed by the respondent-plaintiff against the refusal of interim relief claimed by the defendant by filing an application under Order 39 Rules 1 and 2 of the CPC. The property subject matter of the partition is situated at A-47, Wazirpur Industrial Area, New Delhi. The land underneath the said property has been granted by way of perpetual lease in favour of M/s Punjab Hosiery, of which the appellant- defendant and the respondent-plaintiff are stated to be the partners. It is inter alia a term of the said lease that the said plot and/or the building constructed thereon shall be used for running the industry of hosiery goods. The appellant-defendant, while filing the written statement to the plaint, also filed a counter claim inter alia for permanent injunction restraining the respondent-plaintiff from running the chemicals business or any business other than the hosiery business from the portion of the aforesaid property in the occupation. The written statement-cum-counter claim was accompanied with the application under Order 39 Rules 1 and 2 of the CPC for so restraining FAO(OS) 22/2010 Page 2 of 4 the respondent-plaintiff during the pendency of the suit. 2. The learned single Judge has, vide order impugned in this appeal, dismissed the application of the appellant-defendant for interim relief on the ground that the son of the appellant-defendant was carrying on business in steel from the part of the property occupied by him. It was also observed that the son of the appellant-defendant had filed another suit and in that suit the parties had been directed to maintain status quo. In the circumstances, no orders were deemed necessary on the application of the appellant-defendant for interim relief. 3. Learned counsel for the appellant-defendant has contended that the learned single Judge erred in holding that there was any order of status quo in the suit filed by the son of the appellant-defendant. It is stated that there are disputes also between the son of the appellant- defendant and the appellant-defendant and the only interim order which has been granted in the suit filed by his son is of restraining the parties thereto from disturbing the possession of the said son of the appellant-defendant. 4. The perpetual lease of the land underneath the property does not create any absolute bar to the use of the said plot or the building constructed thereon for the purposes of any business other than that of hosiery goods; it only prohibits use for any other purpose without obtaining permission in writing of the DDA. Moreover, it also permits the use of the premises for any other purpose as may be approved from time to time and/or which may not be a nuisance, annoyance or disturbance to the DDA or to the persons living in the neighbourhood. 5. We do not find the appellant-defendant to be having a prima facie case or having made out a case of irreparable loss or injury or of the balance of convenience being in his favour. Save for a bare plea, FAO(OS) 22/2010 Page 3 of 4 nothing has been stated as to what all businesses are allowed/permitted to be carried on in the aforesaid property. There is no plea also as to since when the respondent-plaintiff has been carrying on the chemicals business in the property. The counsel now orally states that the said business is being carried on for 3 / 4 years. No objection is pleaded to have been taken at any earlier point of time and the said plea was taken as a counterblast to the suit filed by the respondent – plaintiff. 6. It is also the admitted position that the son of the appellant- defendant himself is carrying on business other than of hosiery goods in the portion occupied by him of the same property. The son of the appellant-defendant admittedly has no right to the property. He claims only tenancy rights to the property. There is nothing to indicate that the appellant-defendant had acted in right earnest at the time when his son commenced a business other than of hosiery goods in the said property, though the counsel contends that the appellant-defendant has now taken steps to so restrain his son also. 7. There is not even a plea that the DDA being the superior lessor of the land has issued any notice objecting to the businesses being carried on by the respondent-plaintiff or by the son of the appellant- defendant in the property. In the circumstances, no case of irreparable injury also is made out. The balance of convenience is also in favour of the respondent-plaintiff since the running business of the respondent- plaintiff cannot be injuncted and brought to a complete halt in the manner sought. 8. No merits are, therefore, found in the appeal. The same is dismissed. It is, however, clarified that if at all the DDA levies any damages or charges for unauthorized use of any portion of the FAO(OS) 22/2010 Page 4 of 4 property, the party responsible for such use shall be exclusively liable for the same. CHIEF JUSTICE RAJIV SAHAI ENDLAW, J JANUARY 12, 2010 pk