2002 Supreme(Del) 1676

High Court Of Delhi
SNEH LATA MATHUR - Appellant
Versus
BRIJ RAJ BAHADUR - Respondent
Interim Application 10118 of 1997
Decided On : 11/11/2002

Headnote:Civil Procedure Code 1908 - Order 39 Rule 1, 2, Section 151 — Interim injunction — Occupation and use the portion of suit property — Suit filed primarily against defts. No. 4 & 5 who are not parties to the partition suit filed by deft. No. 2 — Plea raised by plaintiff is that the partition has already taken place — Plea raised under Section 10, CPC cannot preclude the Court from disposing of an application under Order 39 Rules 1 & 2 r/w Section 151, CPC — Plaintiff who is an aged widow appears to be living here and there after her ouster from House in the suit property by defts. No. 4 & 5 at the behest of deft. No. 1 who is enjoying the entire property to the exclusion of his sisters — Plaintiff would suffer irreparable loss/injury in as much as in spite of having a share in the suit property, which belongs to her late father — Plaintiff would be at the mercy of others in the matter of spending the autumn of her life — Balance of convenience is also in favor of the plaintiff who is shown to have been residing in suit property since long but was dispossessed there from by practicing deceit — Restoration of status quo ante, thereforee, is fully called for under the facts and circumstances of the present case.

       Held:

       No straight jacket formula or hard and fast rule can be laid down for the exercise of discretion in such matters but one thing can be safely said that an interim man-datory injunction to restore status quo ante should be granted rarely and only in cases of exceptional nature in which on account of highhandedness of a defendant the Courts conscience compels it to disturb the status quo which has come about on account of infraction of law. The argument that the interim relief would tantamount to decree(sic) the whole suit and as such cannot be granted can be taken care of by moulding the(sic) relief and attaching certain conditions thereto so that in case the suit happens to j(sic) relief granted to the plaintiff through an interim order can be withdrawn and the pa(sic) may be put back to the same position in which they were on the date of the grant of such relief. Such interim relief should be granted to rare cases of exceptional nature and the Courts are not totally precluded from issuing such interim reliefs.

       The plaintiff has established on record a strong prima facie case regarding her possession also in respect of House No. II, by placing on record numerous documents which show that the plaintiff as well as defendant No. 2 had been living in the said House No. II of the suit property since long. Pension Payment Order, a letter from MTNL in the name of husband of defendant No. 2, Ration Card, Telephone Bills, House Tax Bill, Electricity Bills in the name of defendant No. 2, Passport of the plaintiff, Pass Book in the name of plaintiffs son, Gas connection in the name of the plaintiff, Death Certificate of the husband of the defendant No. 2 and Electoral Card satisfactorily establish on record that the plaintiff and defendant No. 2 have been residing in the suit property since long. The plea of defendant No. 1 that they were residing at some other places and were only visiting him occasionally being sisters is a patently false plea for the reason that the sisters visiting the house of their brothers do not come to acquire such a large number of important documents suggesting their regular residence and possession of the house. No sister can have a Gas connection in her name at the address of her brothers house if she ix only an occasional visitor to his place. Similarly Passport, Bank Accounts, Death Certificates, Telephone Bills, House Tax Bills, DVB Bills, Ration Cards etc. cannot be obtained and acquired by any causal and occasional visitor. It is, thereforee, prima facie shown on record that the plaintiff and defendant No. 2 have been residing in the suit premises for years together but the defendant No. 1 with the help of defendants No. 4 and 5 had made it impossible for them to live in House No. II and thereafter, started raising a plea that they were never residing there.

       Hindu Succession Act, 1956 - Section 23 — Special provision respecting dwelling houses — Interim injunction — Occupation and use the portion of suit property — Suit filed primarily against defendants No. 4 & 5 who are not parties to the partition suit filed by defendant No. 2 — Section 23 of the Hindu Succession Act bestows a valuable right upon the plaintiff in the matter of residence in the ancestral property which deserves to be enforced by issuing appropriate directions — Balance of convenience is also in favor of the plaintiff.