The Delhi High Court dismissed a petition challenging the dismissal of a Summary Judgment application under Order 7 Rule 11 CPC. The court held that the suit challenging unauthorized construction by co-owners is not barred by law based on the pleadings.
The petition was dismissed as there is no merit in it, thereby admitting the maintainability of the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJJO & ANR ..... Petitioners
Through Mr.S.S.Panwar and Ms.Nivedita Panwar, Advocates.
versus
SISO DEVI & ORS ..... Respondents Through None.
CORAM: HON'BLE MR. JUSTICE JAYANT NATH
O R D E R % 01.09.2016 CM No. 28028/2016 (exemption)
Exemption is allowed subject to all just exceptions.
C.R.P. 113/2016 and CM No.28209/2016 (stay)
C.R.P. 113/2016
Page 1
“15. On a consideration of the judicial pronouncements on the subject, we are of the opinion that:
(i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another coowner who has been in exclusive possession of the common property unless any act of the person in possession of the
C.R.P. 113/2016
Page 2
property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession.
(ii) Mere making of construction or improvement of, in the common property does not' amount to ouster.
(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to' prevent the diminution of the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which, is detrimental to his interest.
In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner.”
C.R.P. 113/2016
Page 3
and not at the defence of the defendants/petitioners. On the mere averments in the plaint taking them to be correct, it cannot be said that the relief sought by the respondents No.1 and 2 is barred by law.
JAYANT NATH, J
SEPTEMBER 01, 2016 rb
C.R.P. 113/2016
Page 4
3 issues framed by the court
Whether a suit seeking injunction against unauthorised construction by a co-owner can be dismissed under Order 7 Rule 11 CPC solely on the ground that the co-owner is in possession.
Whether a co-owner out of possession can seek an injunction regarding unauthorised construction that may diminish the utility or value of the common property.
Whether the allegation of unauthorised construction in the plaint makes the respondents' suit a maintainable suit not barred by law.
Colour shows how this judgement treated each authority
Bachan Singh vs. Swaran SinghRelied on¶15
_Bachan Singh vs. Swaran Singh, 2000 (3) RCR (Civil) 70_
2 provisions across 2 enactments
RAJJO & ANR
SISO DEVI & ORS
JAYANT NATH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
