Injunction – Restoration of Possession – Petitioner was in possession of flat in furtherance of agreement to sell – Application for injunction against forcible dispossession not to be dismissed merely on the ground that agreement is not registered.

Mr. Kuldip Singh J.: (Oral) - CM-3159-CII-2018

1. Present application has been filed to place on record documents Annexures R-1/4 to R-1/15 along with exemption to file the same.

2. This is a revision against the order passed in an application filed under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908. Documents which are not on the file of the trial Court, same cannot be allowed to be produced at this stage.

3. Dismissed.

CR-3732-2012

4. Impugned in the present revision petition is the order dated 17.4.2012 (Annexure P-2), passed by learned Additional District Judge, Gurgaon and the order dated 15.6.2011 (Annexure P-1) passed by learned Civil Judge (Junior Division), Gurgaon, vide which an application filed by the petitioner under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 was dismissed.

5. The brief facts of the case which are required to be noticed for the purpose of present revision petition are that one Apartment No. 420-B, Hamilton Court was allotted by defendant No. 2-M/s DLF Ltd to defendant No. 1-M/s Intergest India International Limited on certain terms and conditions which included the payment of the sale price in installments. According to the petitioner-plaintiff, defendant No. 1 with the consent of defendant No. 2, entered into an agreement to sell with the plaintiff on 2.11.2007 and the possession was handed over to plaintiff-Rajiv Gosain. It is stated that the agreement was entered into with the complete knowledge and with the consent of defendant No. 2.

6. Defendant No. 1 in the written statement has not disputed the assertion of the plaintiff, whereas defendant No. 2 in the written statement has denied the possession of the plaintiff. It is stated that the apartment in dispute belong to defendant No. 2. The rights of plaintiff over the apartment in dispute were denied.

7. Learned trial Court after hearing learned counsel for the parties came to the conclusion that agreement in question was not registered and therefore, cannot be looked into and consequently declined the injunction.

8. It is alleged that in the meanwhile after dismissal of the application under Order XXXIX Rule 1 and 2, read with Section 151 of the Code of Civil Procedure, 1908, by learned Civil Judge, (Junior Division), Gurgaon on 15.6.2011, plaintiff was dispossessed from the apartment in dispute on 16.6.2011 by defendant No. 2.

9. After the dismissal of the application, petitioner-plaintiff instituted an appeal on 16.7.2011 before the learned Additional District Judge, Gurgaon seeking restoration of the possession of the apartment in dispute.

10. Learned Additional District Judge, Gurgaon while discussing the prima facie evidence observed that defendant No. 2 has handed over the possession of the apartment No. 420-B, Hamilton Court to defendant No. 1 and defendant No. 1 to the plaintiff. Bills of telephone connection; mobile connection; gas connection and electricity connection and the photographs also shows the actual and physical possession of the petitioner-plaintiff. However, it was observed that since the plaintiff has been dispossessed, therefore, no injunction can be granted as the plaintiff is no more in possession of the apartment in dispute.

11. I have heard learned counsel for the parties and perused the case file.

12. Admittedly, apartment No. 420-B, Hamilton Court was allotted by defendant No. 2-M/s DLF Ltd. to defendant No. 1-M/s Intergest India International Ltd. A license deed dated 4.10.2000 (Annexure P-10) was also executed between defendant No. 2-M/s DLF Ltd and defendant No. 1-M/s Intergest India International Ltd. As per the conditions mentioned in the licence deed the possession was delivered to the licencee i.e. defendant No. 1 and the sale price is to be paid and after the sale deed is executed and registered, the legal possession will be handed over to the licensee/owner in terms of the said agreement. The monthly license fee was a