A. K. SIKRI ( 1 ) BEFORE coming to the subject matter of these ias, it would be appropriate to take stock of some of the relevant proceedings in this suit. For, this background shall not only facilitate in understanding the raison d etre but also disposal of these appiicat Ions. ( 2 ) PLAINTIFF and defendants are brothers and sister, they are children of late Sh. Trilochan Singh and late Smt-Gurbachan Kaur. The present suit is filed by the plaintiff for partition of the properties mentioned in Schedule I and II to the plaint, while in schedule II certain movable properties, namely, two fdrs and jewellery articles are mentioned. Schedule I mentions immovable property bearing No-3425/ix, Gali mahabir Gandhi Nagar, Delhi (hereinafter referred to as the suit property ). It is this suit property which is the bone of contention and with which we are concerned at the moment. Late Smt. Gurbachan kaur, mother of the parties was the owner of the suit property. The case of the plaintiff is that she died intestate and therefore all four brothers and sister have equal share in this suit property including movable property. On that basis he is claiming 1/4th share therein. ( 3 ) ALONGWITH the plaint, the plaintiff filed IA no. 6243/98 under Order XXXIX Rule 1 and 2 and Section 151 Civil Procedure Code for ad-interim injunction. Ex-parte injunction was granted restraining the defendants from transferring, alienating or parting with possession of the suit property to any other person on 31/7/1998. when the summons of this suit property were received by the defendants, they entered appearance and filed written statements. ( 4 ) THE defendant No. 2, sister of the plaintiff, in her written statement has stated that their mother executed a will dated 23/4/1992 as per which the suit property has been bequeathed to her, and therefore, she is the absolute owner- of this suit property, when IA No. 6243/98 came for hearing on 9/11/1998 it was argued by learned counsel for the defendant No. 2 that she was dependent upon her father as she is not being supported by any of the brothers. She was unmarried and was suffering from heart problem and she was getting treatment in Escorts Hospital for which she required money and in case injunction order continued, she would not have any source of income for her sustenance and for meeting the medical expenses. Learned counsel for the plaintiff argued that there is another property, namely, C-63/3, Okhia Industrial area, Phase-11, New Delhi from where family business was being run and the defendant No. 2 was getting an income of Rs. 8,500. 00 per month. This was disputed by the learned counsel for the defendant No. 2. On this, the learned counsel for plaintiff stated that if the defendant No. 2 does not receive money from the, Okhia property/business, the plaintiff may be paid the share of the defendant no. 2 and the plaintiff in turn would pay Rs. 10,000. 00 per month to the defendant No. 2 till the final disposal of the suit. After noting the aforesaid submission, IA No. 6243/98 was disposed of with the following directions: "in view of the submissions made I direct ; that in case money is being paid to the defendant No. 2 , the plaintiff will be entitled to receive the same from the okhia property/business. The plaintiff will pay a sum of Rs. 10,000. 00 per month to the defendant No. 2 till the decision of the suit. The first of such payment will be made by 15/11/1998 and for every subsequent the payment will be made by the 7th of each succeeding month. In my view, as there is a dispute about the will alleged to have been executed by the deceased in favour of defendants 2 and 3 it will not be proper to vacate the stay granted on 31/7/1998. I, therefore, confirm the order dated 31/7/1998 subject to the plaintiff paying a sum of Rs. 10,000. 00 per month to the defendant no. 2. No further orders are required on this application- The application stands disposed of. " ( 5 ) THE plaintiff started paying the sum of rs. 10,000. 00 per month to the defendant no. 2 after the aforesaid order. But after three months, this payment was stopped". At this stage. It may also be mentioned that on 9/11/1998 itself issues were also framed. It may also be mentioned here that the defendant no. " ( 5 ) THE plaintiff started paying the sum of rs. 10,000. 00 per month to the defendant no. 2 after the aforesaid order. But after three months, this payment was stopped". At this stage. It may also be mentioned that on 9/11/1998 itself issues were also framed. It may also be mentioned here that the defendant no. 1 has supported the -plaintiff in the suit which is being contested by the defendants 2 and 3. As aforesaid, the defendant No. 2 has stated that she is the absolute owner of the suit property because of will executed by her mother bequeathing the suit property in her favour. The defendant No. 3 is supporting her version. As the fate of the suit depends on the aforesaid will which is disputed by the plaintiff and the defendant no. 1, the defendants 2 and 3 were asked to lead their evidence in the first instance. The defendant No. 3 led his evidence and the attesting witnesses to the will have also been produced. Evidence was concluded on 1/2/1999 and the counsel for the defendant No. 2 also made a statement on that date that he does not want to produce any witnesses on behalf of the defendant No. 2. Thereafter, the matter was listed for plaintiff s evidence on 6/1/2000 and 7/1/2000. However, it is a matter of record that the plaintiff has not started his evidence so far although the case has been fixed for this purpose two-three times. . The matter is now slated for evidence of the plaintiff on 2nd and 5/11/2001. ( 6 ) WHILE the main suit was being proceeded, the plaintiff stopped paying the sum of Rs. 10,000. 00 per month to the defendant. No. 2 after January, 1999. This prompted the defendant No. 2 to file IA No. 675/2000 on 19/1/2000 whereby she has sought the following prayer; "clarify that stay grated vide order dated 9/11/1998 against transferring alienating or parting with possession of property bearing no-3425/ix, Gali Mahabir, Gandhi Nagar, delhi, stands vacated. " ( 7 ) IT may be mentioned that just before -this application, the plaintiff himself filed IA No. 1531/99 under Section 151 Civil Procedure Code for clarification/modification of order dated 9/11/1998. In this application the plaintiff stated that the tenant in the Okhla property who was paying a monthly rent of Rs. 8,860. " ( 7 ) IT may be mentioned that just before -this application, the plaintiff himself filed IA No. 1531/99 under Section 151 Civil Procedure Code for clarification/modification of order dated 9/11/1998. In this application the plaintiff stated that the tenant in the Okhla property who was paying a monthly rent of Rs. 8,860. 00 has refused to pay the rent to the plaintiff. The plaintiff has paid defendant No. 2 a sum of Rs. 10,000. 00 for a period of three months i. e. November, December, 1998 and January, 1999. He is not in a position to pay the entire sum of Rs. 10,000. 00 per month as ordered by the court as the tenant is not paying the rent to him. The prayer made in this application was to recall/modify the order dated 9/11/1998 directing the plaintiff to pay defendant No. 2 rs. 10,000. 00 per month. This application was treated as application for review of order dated 9/11/1998 and was placed before S. K. Mahajan, J who had passed the injunction order. Notice of this application was directed to be served upon the tenant also. Counsel for tenant appeared on 18/2/2000 and made a statement that the premises were vacated in January, 1999 itself. Leaving the question open to be decided later as to whether the plaintiff was required to pay the entire sum of Rs. 10,000. 00 per month irrespective of his receiving the rent from the tenant or not, order dated 18/02/2000 -was passed directing the plaintiff to pay Rs. 1,500. 00 per month to the defendant No. 2 which would have been paid by the plaintiff to the defendant No. 2 in any case w. e. f. February, 1999. It may also be mentioned that on that date it was pointed out that in the Okhla property, there is another tenant M/s J. N. Arora and Sons at a monthly rent of Rs. 3,000. 00 and although the said tenant was in arrears no steps were being taken to recover the rent. The order was passed to summonthe said tenant and on 6/04/2000 the said tenant was directed to deposit in-court the entire arrears of rent w. e. f. 1/11/1998 and also keep on depositing future rent by 15th of each succeeding calendar month. After the deposit of this money, it was directed that the same be paid to defendant No. 2. The order was passed to summonthe said tenant and on 6/04/2000 the said tenant was directed to deposit in-court the entire arrears of rent w. e. f. 1/11/1998 and also keep on depositing future rent by 15th of each succeeding calendar month. After the deposit of this money, it was directed that the same be paid to defendant No. 2. IA No-1531/99 again came up for hearing on 1 9/01/2001. The relevant portion of the order passed on that date reads as under: learned counsel for the plaintiff also seeks an adjournment to have instructions from the plaintiff as to whether or not plaintiff will be willing to let out the premises in Okhla to a tenant so as to pay to defendant No. 2 the. amount in terms of the order s of this court. If any amount has been deposited by M/s j. N. Arora and Sons in this court, the same be paid to defendant No. 2. Put up on 20/04/2001. " On 20th April, 2001 the following order was passed: "in view of the order dated 19/1/2001, no further clarification of the order dated 9/11/1998 is required. In this view of the matter , suit be placed before the Regular bench for further directions on 7/5/2001. " ( 8 ) THE position which emerges as on date is that the plaintiff is paying Rs. 1,500. 00 per month to the defendant No. 2 and she is also receiving another sum of rs. 3,000. 00 per month being deposited by the tenant. M/s j. N. Arora and Sons. This is well short of Rs. 10,000. 00 per month which the plaintiff was directed to pay to the defendant No. 2. The case of the plaintiff is that the plaintiff has not been able to let out the Okhla property and therefore is not under any obligation to pay the aforesaid sum of Rs. 10,000. 00 per month. It may be mentioned that by order dated 10/05/2001 the plaintiff was given two months time to enable him to let out the Okhia property and pay arrears to the defendant No. 2. However, the plaintiff has not been able to let out the property and has instead filed IA no. 8367/2001. 10,000. 00 per month. It may be mentioned that by order dated 10/05/2001 the plaintiff was given two months time to enable him to let out the Okhia property and pay arrears to the defendant No. 2. However, the plaintiff has not been able to let out the property and has instead filed IA no. 8367/2001. In this IA he states that since the defendants 1 and 3 hove put up their locks in the premises under their possession the property cannot be let out unless these locks are removed. There are arrears of property tax and electricity dues. Electricity is disconnected. and this property cannot be let out. He has therefore made a prayer that the defendants 1 and 3 be directed to make equal contribution towards property tax and electricity dues; they should also remove their locks and cooperate with the plaintiff for letting out the property; or in the alternative the defendant No. 2 be appointed as Receiver of the suit property which she may let out and utilise the rent for her upkeep. ( 9 ) ARGUMENTS on these applications were heard at length. Perusal of order dated 9/11/1998 would show that the defendant No. 2 had objected to the grant of continuation of injunction order dated 3 1/07/1998, inter alia, on the ground that she had been the owner of the suit property by virtue of will executed by her mother; that she was a heart patient and she was being treated in Escorts Hospital for which she required money; and that. if the injunction order is continued, she will have no source of her sustenance and for meeting the medical expenses. Keeping in view these aspects, this court passed the order dated 9/11/1998 directing the plaintiff to pay rs. 10,000. 00 per month to the defendant No. 2. This order was not related to the income of Rs. 8,500. 00 received from the Okhla property. May be the plaintiff thought that once he received that rent, he will have to pay only a sum of Rs. 1,500. 00 per month from his pocket. That may be at the back of the mind of the plaintiff when he agreed to pay Rs. 10,000. 00 per month to the defendant. No. 2. However, the order dated 9/11/1998 in unambiguous and categorical terms directs the plaintiff to pay Rs. 10,000. 1,500. 00 per month from his pocket. That may be at the back of the mind of the plaintiff when he agreed to pay Rs. 10,000. 00 per month to the defendant. No. 2. However, the order dated 9/11/1998 in unambiguous and categorical terms directs the plaintiff to pay Rs. 10,000. 00 per month to the defendant No. 2 till the decision of the suit- In passing this direction, it was not. . made contingent on the plaintiff s receiving any rent or income from Okhla property. In fact the plaintiff wanted injunction on the suit property and that is why he was willing to pay rs. 10,000. 00 per month to take care of defendant No. 2 s financial necessities. ( 10 ) ONCE order dated 9/11/1998 is read in this manner, namely, it is a conditional order and there would be injunction in favour of plaintiff only if he complies with this condition, failure to comply with this condition has to bear necessary consequence. And the consequence is obvious viz. that the injunction order dated 9th November, 1998 stands vacated. ( 11 ) THE matter can be examined from another angle even if fresh look is required- The suit property stands bequeathed in favour of the defendant No. 2 if the will is genuine and ultimately it is proved. The defendant no. 2 is a helpless and infirm person. She is suffering from serious ailment. She is without any income. In case injunction continues but she ultimately succeeds in proving the will, by that time irreparable damage may have been caused; for, she being a heart patient and without any oilier financial support, needs money for her treatment and maintenance at this juncture. May be, it is because of this reason that her mother bequeathed the aforesaid property in her favour by means of pun-ported Will if her version is to be believed. The very purpose of bequeathing this property in her favour would be defeated if because of non-availability of funds at this stage her disease proves fatal. On the other hand, in so far as plaintiff is concerned, he is seeking 1/4th share in this suit property". If defendant No. 1 s interest is also taken care of the share of these two persons would be one-half. Their interest can be well taken care of by allowing the defendant no. On the other hand, in so far as plaintiff is concerned, he is seeking 1/4th share in this suit property". If defendant No. 1 s interest is also taken care of the share of these two persons would be one-half. Their interest can be well taken care of by allowing the defendant no. 2 to dispose of the suit- property in any manner she wants and deposit, one-half proceeds thereof in this court. Therefore, balance of convenience is also in favour of the defendant no. 2 and in vacating the injunction order more so when the plaintiff has failed to adhere to the condition attached to this order leaving the defendant No. 2 in penury. ( 12 ) SOMETHING should be said, at this stage, about ia No. 8367/2001 filed by the plaintiff. As already noticed above, in so far as Okhla property is concerned, in view of dispute intersay between the plaintiff and the defendants 1 and 3 because of which there are huge arrears of electricity and property tax, it may not be possible to let out the same immediately. No directions can be given to defendants 1 and 3 as sought for in this application as that is not. the subject matter of the suit. Alternate prayer of appioi. nt. ing the defendant no. 2 as Receiver of the property and allowing the defendant no. 2 to let out the same and utilise the rent for upkeep also would be of no avail. Afterall it may not be easy to let out the property. One does not know how much rent it would fetch. The rates of the properties have also been sliding. It is a matter of record that the price which the defendant No. 2 would fetch of this property today is going to be much less than what it was in the year 1998 when the injunction order was granted in favour of the plaintiff. It is also a matter of record that although the defendants 2 and 3 completed their evidence way back in the year 1999, it is the plaintiff who has been taking time for the purpose of his evidence. Keeping in view all these factors, I am not inclined to accept this plea. ( 13 ) IA No. 675/2000 is accordingly allowed. It is clarified that order dated 31/07/1998 as modified by order dated 9/11/1998 stands vacated- IA no. Keeping in view all these factors, I am not inclined to accept this plea. ( 13 ) IA No. 675/2000 is accordingly allowed. It is clarified that order dated 31/07/1998 as modified by order dated 9/11/1998 stands vacated- IA no. 8367/2001 filed by the plaintiff is hereby dismissed.