A suit for mandatory injunction can be maintained without a claim for possession when established ownership rights exist, and repeated challenges to previous rulings may constitute an abuse of legal process.

JUDGMENT (ORAL)

1. The order dated 21st February, 2022, passed by learned Additional Senior Civil Judge (the learned ASCJ) in CS SCJ 815/18 (Krishna v. Satish Kumar) decides three applications filed by the petitioner, as the defendant in the said suit. They were filed under Section 21(2), Order XIV Rule 5 and Order XIX Rule 3 of the Code of Civil Procedure, 1908 (the CPC).

The suit

2. CS CSJ 815/18 was filed by the respondents against, inter alia, the petitioner. The petitioner was Defendant 1 in the suit. Defendant 2 Angoori Devi expired during the pendency of the proceedings. The respondents were the plaintiffs in the suit.

3. The respondents, in the suit, claimed to have become absolute owners of a property situated at D-4/15, Plot No. 24, Khasra No. 24/6 & 24/7, Village Dabri, Delhi (the suit property) by virtue of a registered gift deed executed in their favour by Angoori Devi, the mother of the petitioner. As the petitioner was residing in the suit property, the plaint averred that, on 9th June 2016, the respondents served a registered notice on the petitioner, requiring him to vacate the suit property and pay damages and mesne profits. On the petitioner failing to deliver possession of the suit property despite service of notice by the respondents, the plaint averred that the respondents filed Suit 111/17 (Krishna Devi & Ors. v. Vinod Kumar & Ors.). By order dated 30th May 2018, the learned JSCC permitted the respondents to withdraw the said suit and file a fresh suit on the same cause of action. It was in these circumstances that CS SCJ 815/18 came to be filed by the respondents against the petitioner.

4. The prayer clause in the suit read thus:

"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased:

a. Pass a decree of mandatory injunction thereby directing the defendant no.1 to remove his belongings from First Floor of property bearing no. D-4/15, admesuring about 75 sq yrds. (62.7075 sq. mtrs.) out of Khasra No.24/6 & 24/7 situated in the Village Dabri, Delhi known as Vashishth Park, New Delhi-110045, as shown in red colour in the site plan which is annexed herewith as ANNEXURE "A"

b. to pass a decree of permanent injunction in favour of the plaintiffs and against the defendant no.1 thereby restraining the defendant no.1, his agents, servants, attorneys, associates, family members, etc. from parting with or delivering possession of the suit property to some other person except the plaintiffs.

c. to pass a decree of mesne profit/damages @ Rs. 10,000/- (Rupees Ten Thousand Only) per month during pendency of the suit and till delivery of possession of the property.

d. Cost of the suit may kindly also be awarded in favour of the plaintiffs.

e. Any other order(s) which this Hon'ble court deem fit and proper may kindly also be passed in favour of the plaintiffs and against the defendants."

5. It is not necessary to chart, exhaustively, the progress of the aforesaid suit. It is only necessary to refer to two orders which came to be passed therein, on 13th December 2018 and 16th February 2019 respectively.

Orders dated 13th December, 2018 and 16th February, 2019

6. The order dated 13th December, 2018 decided an application filed by the petitioner under Order VII Rule 11 of the CPC. It was specifically alleged, in the said application, that the suit was carefully disguised, as it effectively sought a relief of possession under the garb of mandatory injunction, without filing proper court fees. The application also sought to question the validity of the gift deed, whereunder the respondents claimed to have become owners of the suit property.

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