The plaintiffs must establish a prima facie case for their claim in order to obtain an ex parte ad interim stay, and timely seek declarations for ancestral properties to avoid time bar.

V.K. Shali, J. (Oral)

I.A. No.21254/2013

1. This is an application filed by the plaintiffs under Order 39 Rule 1 & 2 CPC.

2. The plaintiffs had filed a suit for partition, declaration, rendition of accounts and permanent injunction. The case setup by the plaintiffs in the plaint was that the plaintiffs are the grand sons of Late Sh. Man Singh Chandhok and that the defendant No.1, Kulbir Singh Chandhok, their father, is trying to divest them of their legitimate share in the three properties, details of which are given in Schedule A attached to the plaint being the ancestral properties. It has been stated that the plaintiffs are entitled to 1/6th undivided share in property No.B-39, Greater Kailash, Part-I, New Delhi, i.e., 50 per cent share in the ground floor and 50 per cent share in the 1/3rd portion of the basement and roof rights. The share is also sought to be claimed in property No.149, Kilokari, near Maharani Bagh, New Delhi and property No.KC-7A, Ashok Vihar, Delhi. It has been alleged in the plaint that the aforesaid three properties have been purchased from the funds arising from the business which was being run by their late grandfather. The plaintiffs have also prayed in the plaint in the prayer clause as under :-

“a) Pass a preliminary decree for partition of the property detailed in Schedule-A declaring plaintiffs to be the owner of 50 per cent, i.e., half share in the each and every property as detailed out in Schedule-A;

b) Pass a final decree for partition of the property as detailed out in Schedule-A declaring the plaintiffs owner of the 50 per cent/half share, i.e, 1/4th share each in the property as detailed out in Schedule-A;

c) Appoint Local Commissioner directing Local Commissioner to suggest modalities on partition of the suit property by metes and bounds and visit the suit property and examine books and accounts of all the properties as stated in Schedule ‘A’and further to prepare a report detailing out the account of assets and liability;

d) Pass a decree of partition allocating 50 per cent, i.e, 1/2 share of the plaintiffs in the immovable property as per the report prepared by the Local Commissioner and further directing the plaintiff to be put in possession of share allocated to plaintiff;

e) Pass a decree for permanent injunction restraining the defendants, their agents, employees, liens or other persons in any way from selling, transferring, alienating, disposition, dispossessing or dealing with the properties as set out and detailed in Schedule ‘A’;

f) Pass such other and further order/orders as may be deemed fit and proper on the facts and in the circumstances of this case.”

3. This court on the very first date, that is, on 27.12.2013 during vacation, was pleased to pass an ex parte ad interim stay restraining the defendant No.1 only from creating any third party interest in respect of the aforesaid three properties till 30.12.2013 so as to ensure that no prejudice is caused to the plaintiffs till the time the defendants are served.

4. On 30.12.2013, the counsel for defendant Nos.1 and 9 had put in appearance and raised an objection regarding the continuation of the ex parte ad interim stay, both with regard to property No.2 and the property No.3, which were situated in Kilokari and Ashok Vihar respectively on the ground that the said two properties are in the name of defendant No.1 and his second wife by the name of Neeta Chandhok and, therefore, the stay need not be continued. The court observed that as the appearance on behalf of remaining defendants, that is, defendants other than defendant Nos.1 and 9 had not been put in and no written statement has been filed, the stay was continued till 2.1.2014.

5. The counsel for defendant Nos.2 to 8 has put in appearance. The counsel for defendant Nos.1 and 9 vehemently opposes the continuation of the ex parte ad interim stay. It was submitted by him that in order to pass an ex parte ad interim stay, the plaintiffs have to satisfy three essential require