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1996 DIGILAW 286 (DEL)

V. BHAGAT v. D. BHAGAT

1996-03-08

DEVENDER GUPTA

body1996
Devinder Gupta ( 1 ) THIS is an appeal preferred TO against an order passed on 10th October, 1995, by which Shri Lal Singh, Additional District Judge, Delhi dismissing the appellant s application Section 151 of the Code of Civil Procedure for issuance of temporary injunction directing respondent No. 1 to vacate the rear unit of House No. 32, Nizamuddin East, New Delhi and farther restraining her from entering the said premises. ( 2 ) THE facts in brief are that the marriage of the appellant and respondent No. 1 was dissolved by a decree of divorce granted by virtue of an order passed by the Supreme Court in I. A. No. 1 of 1993 in Civil Appeal No. 424 of 1987, decided on 19th November, 1993, reported as V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 S. C. C. 337. After the marriage had been dissolved by a decree of divorce, the appellant on 8th May, 1995 filed a suit in the court of the District Judge, Delhi against respondent No. 1 and Indian Tourism Development Corporation Ltd. , respondent No. 2, claiming a decree for mandatory injunction directing respondent No. 1 to forthwith vacate the premises in question being her formal matrimonial home and a permanent prohibitor injunction restraining her from entering the same. In addition the appellant has prayed for a decree for Rs. 2,60,000. 00 as damages against defendants jointly and severally and a decree for declaration that payments made by respondent No. 2 to respondent No. 1 by way of rent allowance be declared as illegal and the appellant be held entitled and be paid the said amount of rent from 23rd November, 1993 onwards with a decree for future damages at the rate of Rs. 10,000. 00 per month from 1st April, 1995 till respondent No. 1 vacates the formal matrimonial home. ( 3 ) ALONG with the suit an application under Section 151 of the Code of Civil Procedure was also moved by the appellant praying for granting temporary injunction directing respondent No. 1 to forthwith vacate the premises and to restrain her from entering the same and directing respondent No. 2 to pay to the appellant monthly allowance in lieu of accommodation being occupied by respondent No. 1. The said application on contest was dismissed by learned Additional District Judge. The said application on contest was dismissed by learned Additional District Judge. This said order is under challenge in this appeal, ( 4 ) THE appellant in the suit alleged that on marriage being dissolved, right of respondent No. 1 to reside in the formal matrimonial home had come to an end and despite notice dated 30th November, 1993, she has not vacated the same. Respondent No. 1 had also applied for review of the order passed by the Supreme Court on 23rd November, 1993 contending that pursuant to the judgment she had received a letter for vacating the matrimonial premises and thus she was liable to be thrown out of the matrimonial home and rendered homeless causing grave injustice to her and children. The said review petition was also dismissed and thus in view of her admission made in the review petition, respondent No. 1 was estopped from contending that she was not liable to vacate the formal matrimonial home after divorce. Her continuance in the premises was without any authority of law. The appellant had been residing in the matrimonial home and is in exclusive possession thereof. A civil suit (Suit No. 42/83) for specific performance of an agreement entitling him to the ownership thereof was pending in the High Court of Delhi, to which respondent No. 1 was not a party. Appellant had suffered and was suffering irreparable mental and physical agony and hardship an account of respondent No. 1 not vacating the formal matrimonial home. Her presence was causing grave mental pain and suffering to him. The appellant had been trying to prevent respondent No. 1 from entering her formal matrimonial home but of no effect. In the plaint, it is also alleged that respondent No. 1 is entitled to official accommodation as per her entitlement and she can also reside there in one of the I. T. D. C. Hostles. Respondent No. 2 had been colluding with respondent No. 1 and illegally making payment of the House Rent Allowance to her as a perquisite of her employment though she had not been residing in a rented accommodation. ( 5 ) THE suit is under contest at the behest of the respondents. Respondent No. 1 in her written statement has alleged that the appellant is not the owner or tenant of House No. 72, Nizamuddin East, New Delhi. It belongs to Mrs. ( 5 ) THE suit is under contest at the behest of the respondents. Respondent No. 1 in her written statement has alleged that the appellant is not the owner or tenant of House No. 72, Nizamuddin East, New Delhi. It belongs to Mrs. Usha Bhagat, the elder sister of the appellant. The appellant has no right, title or interest and is residing therein as a matter of grace on account of relationship, being member of the family of his mother and with grace of his elder sister Mrs. Usha Bhagat. It is also alleged that respondent No. 1 is also residing in the house as a licencee of Mrs. Usha Bhagat and as a mother of her children, who were bom in the premises and have a right to live therein. Her licence has not been terminated by Mrs. Usha Bhagat. She has alleged that by mere grant of a decree for divorce, she is not liable to be thrown out of the house and the appellant cannot by filing the suit in the garb of mandatory and prohibitary injunction ask for possession from the respondent to which otherwise also he is not entitled. Plaintiff can only claim possession on the basis of a proprietary right in the property, which he does not have. Plaintiff is not on talking terms with his mother, sister or sister-in-law and even the children and has no right to object to respondent No. 1 living in the premises. ( 6 ) THE trial court dismissed the appellant s application on the ground that respondent No. 1, even according to appellant s own showing was in possession of the premises in question and an injunction restraining her entry was not tenable and the same cannot be granted in view of the appellant s admission. The Court also observed that there was also no prima facie case or balance of convenience fix the grant of such an injunction. ( 7 ) THE appellant has challenged the impugned order alleging that the order is based on perverse findings the two children are not staying in the premises and there is no admission on the part of the appellant as regards possession of respondent No. 1. ( 7 ) THE appellant has challenged the impugned order alleging that the order is based on perverse findings the two children are not staying in the premises and there is no admission on the part of the appellant as regards possession of respondent No. 1. He has REFERRED TO to averments made in para-12 of the plaint and its reply in the corresponding para of the written statement contending that respondent No. 1 has not disputed the averments wherein the plaintiff specifically alleged that he was in exclusive possession of the property. The appellant has reiterated all the grounds as taken by him for claiming the decree in the suit in support of his submissions and vehementally reiterated that respondent No. 1 had lost her right to reside in the premises and was liable to be restrained as prayed in the application. ( 8 ) THERE is no manner of doubt that Courts have power to grant mandatory injunction also on an interlocutory applications but such temporary mandatory injunction has to be issued only in such cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship to the plaintiff. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore status quo of the last non-contested status which proceeded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have illegally been done or for restoration of that which was wrongfully taken from the party complaining. The Supreme Court in Dorab Cawasji Warden v. Coona Sorab Warden and others, A. I. R. 1990 S. C. 867 pointed out the wel known guidelines for grant of inter locutory mandatory injunction:- " (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. " ( 9 ) IT was further observed that the above guidelines are neither exhaustive or complete nor are absolute rules. There may be exceptional circumstances needing action. (3) The balance of convenience is in favour of the one seeking such relief. " ( 9 ) IT was further observed that the above guidelines are neither exhaustive or complete nor are absolute rules. There may be exceptional circumstances needing action. However, applying of the aforementioned guidelines as a pre-requisite for the grant or refusal of such injunctions would be a ( 10 ) APPLYING the aforementioned guidelines, in the light of the facts and circumstances of the case, I am satisfied that no interference is called for in the ultimate order, which was passed by the learned trial court. It is not in dispute that at present the property in question does not vest in the appellant. It is stated that there is a suit pending for specific performance on the Original Side of this Court, which has been filed by the appellant against his sister. The contention of the appellant that because of the admission on the part of respondent No. 1 made in the review petition preferred TO before the Supreme Court and while replying to para-12 of the plaint, a strong prima facie case is made out in his favour; cannot be accepted. Copy of the review petition when read as a whole does not contain any unequivocal admission on the part of respondent No. 1 that she is not entitled to continue in occupation of the premises in question after decree of divorce. She merely stated that in view of the threat already held out against her, there is every likelihood of her being thrown out of the premises. She in the review petition expressed her apprehensions. Though part of para-12 of the plaint has been admitted by respondent No. 1 in her written statement but mere admitting the contents of para-12 will not have the effect ofadmitting a fact that the appellant is in exclusive occupation of the property in question, when para 12 of the written statement is read with other averments made in the written statement. An admission has to be categorical and unequivocal. Para 12 of the written statement cannot be read in isolation with the other parts of the written statement. It has to be read as a whole. An admission has to be categorical and unequivocal. Para 12 of the written statement cannot be read in isolation with the other parts of the written statement. It has to be read as a whole. Written statement read as a whole, no where admits that it is the appellant who is in exclusive possession of the property or that respondent No. 1 is not in occupation thereof. In written statement, as noticed above, respondent No. 1 has definitely pleaded that appellant is also residing in the premises as a matter of grace being a member of the family of his mother and that she is living in the house as a licencee of Mrs. Usha Bhagat, the owner thereof and as a mother other children, who have also a right to live in the house and that her licence had not been terminated by Mrs. Usha Bhagat. ( 11 ) IN the light of the circumstances noted above, I do not find any prima facie case having been made out for grant of injunction in mandatory form directing respondent No. 1 to walk out of the premises. Moreover, granting such a relief at this stage when suit is still pending will amount to almost decreeing that part of the relief as claimed in the suit without trial. The suit is still at trial stage. The appellant has yet to prove his title to get decree against respondent No. 1. The mere fact that respondent No. 1 is entitled to House Rent Allowance or that she is drawing such an allowance or that she can be accommodated by her employer also cannot be a ground for grant of any mandatory injunction in appellant s favour. ( 12 ) APPLYING the guidelines laid down in Dorab Cowasji Warden s case (supra), I do not find any ground to interfere in this matter. The appeal is liable to be dismissed and is dismissed as such with costs.