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HIGH COURT OF DELHI AT NEW DELHI
HONBLE MR. JUSTICE MANMOHAN SINGH, J.
Kiran Girhotra & Ors. - Plaintiff
Versus
Raj Kumar & Ors. - Defendants
I.A. No. 11196/2009 in CS(OS) No.75/2004
Decided on : 10th November, 2009
CPC - Application for variation of interim order - Suit property - Sections 151, 39 Rule 4, 31 of the Specific Relief Act, 1967 - Order dated 3rd February, 2004 modified to restrain defendants No.2 to 4 from causing any construction in the suit plot bearing No.W-137, Greater Kailash, Part-II, New Delhi - Summary of Acts and Sections: The court discussed the application filed by the plaintiff under Order 39 Rule 4 read with Section 151 CPC for variation of the order due to change of circumstances. The court referred to various civil and criminal litigations pending between the parties with regard to the suit property and property bearing No.Q-29, Tagore Park, Model Town, New Delhi. The court found that the plaintiffs had made a prima facie case in their favor and were entitled to the relief of variation and modification of the order dated 3rd February, 2004 in addition to the earlier order of restraining the defendants No.2 to 4 from causing any construction in the suit plot bearing No.W-137, Greater Kailash, Part-II, New Delhi till the final disposal of the suit.
Fact of the Case:
The plaintiffs filed a suit under Section 31 of the Specific Relief Act, 1967 for declaration, permanent and mandatory injunction and for possession of suit property. The application under Order 39 Rule 4 read with Section 151 CPC was filed by the plaintiff mainly on the ground of change of circumstances, namely, that Mr. Sunil Gupta, defendant No.3 had started the construction in the plot bearing No.W-137, Greater Kailash Part-II, New Delhi in the month of August, 2009. The probate was granted in favor of the plaintiff vide order dated 14th January, 2009 in Probate Petition No.46/2006 which is a judgment in rem and no appeal has been filed against any Class-I legal heirs of late Sh. Harbhagwan and the plaintiffs are legally authorized to administer all the properties left by their late father Sh. Harbhagwan.
Finding of the Court:
The court found that the plaintiffs had made a prima facie case in their favor and were entitled to the relief of variation and modification of the order dated 3rd February, 2004 in addition to the earlier order of restraining the defendants No.2 to 4 from causing any construction in the suit plot bearing No.W-137, Greater Kailash, Part-II, New Delhi till the final disposal of the suit.
Issues: The court discussed the application filed by the plaintiff under Order 39 Rule 4 read with Section 151 CPC for variation of the order due to change of circumstances. The court referred to various civil and criminal litigations pending between the parties with regard to the suit property and property bearing No.Q-29, Tagore Park, Model Town, New Delhi.
Ratio Decidendi: The court found that the plaintiffs had made a prima facie case in their favor and were entitled to the relief of variation and modification of the order dated 3rd February, 2004 in addition to the earlier order of restraining the defendants No.2 to 4 from causing any construction in the suit plot bearing No.W-137, Greater Kailash, Part-II, New Delhi till the final disposal of the suit.
Final Decision: The application was disposed of with the order modified to restrain defendants No.2 to 4 from causing any construction in the suit plot bearing No.W-137, Greater Kailash, Part-II, New Delhi. The Local commissioner was appointed to immediately visit the suit property to ascertain the present status of the construction being done by defendant No.3. The Local commissioner shall also be entitled to take photographs and to obtain police assistance from the local Police Station to execute the above said orders. The fee of the Local Commissioner is fixed at Rs.20,000/- which shall be paid by the defendant No.3. The plaintiff No.4 and defendant No.3 are permitted to accompany the Local commissioner who shall file her report within two weeks from the date of the order.
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the plaintiff?s application under Order 39 Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as „CPC?) being I.A. No.11196/2009 wherein it is prayed that the order dated 3rd February, 2004 be modified and in addition to earlier order defendants No.2 to 4 be restrained thereby to (a) not to cause any construction in the suit plot; (b) to handover the peaceful possession to the plaintiffs and (c) alternatively to seal the suit property in question.
PRESENT APPLICATION
2. The above mentioned application has been filed by the plaintiff under Order 39 Rule 4 read with Section 151 CPC mainly on the ground of change of circumstances, namely:- a) That Mr. Sunil Gupta, defendant No.3 has started the construction in the plot bearing No.W-137, Greater Kailash Part-II, New Delhi in the month of August, 2009. b) That probate has been granted in favour of the plaintiff vide order dated 14th January, 2009 in Probate Petition No.46/2006 which is a judgment in rem and no appeal has been filed against any Class-I legal heirs of late Sh. Harbhagwan and the plaintiffs are legally authorized to administer all the properties left by their late father Sh. Harbhagwan.
3. There are various civil and criminal litigations pending between the parties with regard to the two properties being the suit property and property bearing No.Q-29, Tagore Park, Model Town, New Delhi. For the purpose of deciding the present application, one of the properties i.e. W-137, G.K.-II, New Delhi concerning the application in which relief is sought will be referred as suit property here-in-after.
4. The plaintiffs filed a suit under Section 31 of the Specific Relief Act, 1967 for declaration, permanent and mandatory injunction and for possession of suit property.
PREVIOUS INTERIM ORDER
5. In I.A. No.631/2004 under Order 39 Rule 1 and 2 CPC on 3rd February, 2004 an interim order was passed in the presence of counsel for the parties against the defendants restraining them from creating any third party interest in the suit property as well as property bearing No.Q-29, Tagore Park, Model Town, New Delhi. The said order was confirmed by order dated 1st December, 2005.
6. The case of the plaintiff is that Sh. Harbhagwan son of Shri Jai Kishan Das purchased the following two properties:- a. Property bearing No. W-137, Greater Kailash Part-II, New Delhi by means of registered Sale deed dated 27th April, 1973 executed by M/s. DLF Limited in his favour; b. Property bearing No. Q-29, Tagore Park, Model Town, New Delhi purchased vide registered Sale Deed dated 3rd October, 1959.
7. Sh. Harbhagwan and his wife disowned and disinherited their son Mr. Raj Kumar, defendant No.1 by giving a public notice dated 14th August, 1987 in the newspaper „Statesman?. Defendant No.1 was also ousted from the parental house on 17th January, 1994 by way of a decree of the court in the suit filed in the year 1997 and various criminal and civil cases are pending against him and he started residing at Nazafgarh, New Delhi (separate place).
8. Sh. Harbhagwan during his lifetime had executed a Will dated 15th May, 1996 which was registered by him vide registration No.19906 in additional Book No.3 Volume-2660 at pages 137-138 registered on 17th May, 1996 in favour of his wife Smt. Pushpa Kumari. Sh. Harbhagwan expired on 4th November, 1997.
9. Sh. Harbhagwan had a number of self acquired properties including the suit property. According to the plaintiffs, defendant No.1 forged a Will dated 30th October, 1997 after the death of his father with the collusion and conspiracy of defendants No.2 to 4, namely, Mr. Amit Pahwa, Mr. Sunil Gupta and Mr. Jayant Ghadia respectively and got the said Will registered with the Sub-Registrar, Kashmere Gate, Delhi on 2nd June, 1999 without notice to any of the legal heirs of the deceased and on a stamp paper of Rs.2/- which was purchased from the Stamp Vendor for the purpose of Agreement. During th
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