Sh. Vijay Kumar v. Munna (Pahlwan) & Ors.

1. The costs imposed on 3.1.2014 are waived. Let the appeal be argued.

2. This first appeal under Section 43 (i) (r) of CPC impugns the order of the trial court dated 25.11.2013 by which the appellant/plaintiff’s application under Order 39 Rules 1 and 2 was dismissed.

3. Appellant/plaintiff has filed the subject suit for injunction claiming ownership of the subject property being plot no.66, admeasuring 111 sq. yds., Rect. No.11, Out of K.No. 10/2, Revenue Estate of Village Burari, Delhi. As per the plaint, the case of the appellant-plaintiff was that 2014:DHC:84 in January, 2012, plaintiff had mortgaged the said property with the respondent no.1 for a sum of Rs.4.50 lacs. It is further the case of the plaintiff that defendants agreed that on the plaintiff mortgaging the suit property, the respondents-defendants will pay a sum of Rs.4.50 lacs to the plaintiff. Appellant-plaintiff claimed that on 10.1.2012, a mortgaged deed was executed and he only retained a photocopy. The case of the plaintiff is that when he approached defendants on 9.5.2013 to give back the loan amount, and return the property documents, the defendants allegedly tore the photocopy of the mortgage deed which was with the appellant-plaintiff. The subject suit thereafter was filed seeking injunction to restrain the respondents-defendants etc. from interfering with the peaceful use and enjoyment of the suit property. Mandatory injunction also was claimed that respondents-defendants should handover the original title documents of the suit property back to the plaintiff.

4. Trial court, while dismissing the application of the appellantplaintiff under Order 39 Rules 1 and 2 CPC had given the following conclusions:-

(i) Though plaintiff claimed the property having been mortgaged in

January, 2012, however, admittedly that the plaintiff did not file any proof whatsoever of the alleged mortgage, and on the contrary, defendants filed the documents which showed that the rights in the suit property were transferred in favour of the defendants no.2 and 3 by documents being the Agreement to Sell, Will, General Power of Attorney etc which were way back of the year 1996. Appellant-plaintiff did not dispute these documents as per the pleadings in the trial court as has been observed in the impugned order.

(ii) Trial court has also observed that the case of the plaintiff is not believable that he went for returning of the alleged amount of Rs.4.50 lacs to the defendants by cheque.

(iii) Trial court also notes that admittedly, even assuming there is a mortgage, plaintiff is not shown to have repaid the mortgage amount, and therefore the suit for injunction would not lie.

5. In addition to the aforesaid conclusions of the trial court, I would like to note the following three additional conclusions:-

(i) The plaint does not show that if the plaintiff received a sum of Rs.4.50 lacs in January, 2012, then how that amount was received and what was the proof of the plaintiff actually having received this amount from the defendants in January, 2012.

(ii) Plaintiff in the suit plaint has not given any proof of the alleged cheque which he took for repaying the alleged loan of Rs.4.50 lacs.

(iii) It is not believable that the plaintiff- mortgagee would only have one photocopy of the alleged mortgaged deed and he does not have any other photocopy or any other proof whatsoever of the mortgaged deed.

6. In view of the above, I do not find that the Trial court has committed any error in dismissing the application of the appellant-plaintiff under Order 39 Rules 1 and 2 of CPC. Plaintiff has no prima facie case. Merely filing of an injunction suit does not entitle a plaintiff to interim injunction because no doubt every disputed question of fact requires framing of issues but it is only a bonafide disputed question which entitles grant of interim injunction.

7. The appeal is therefore dismissed, leaving the parties to bear their own costs.

JANUARY 06, 2014 VALMIKI J. MEHTA, J. ib