BIMLA GUPTA Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) ADMIT. The appellant had entered into an agreement to purchase of DDA flat from respondent no.2. Since the agreement was entered into between the appellant and respondent no.2 before the expiry of the period of 10 years, respondent no.2 filed a suit in this Court alleging, inter alia, that the agreement was void being in violation of the terms and conditions of the allotment of flat by the DDA to respondent no.2. While the suit was pending, the period of ten years expired and the suit was, therefore, withdrawn by respondent no.2. Respondent no.2 then applied with the DDA for transfer of this flat to the appellant and while this application was pending the appellant is also stated to have applied for transfer of the flat to her. On these applications being made, the respondent/DDA issued a show cause notice to respondent No.2 as to why the allotment of flat to him be not cancelled. On this notice being issued the appellant filed a suit for mandatory and permanent injunction against the DDA restraining it from cancelling the allotment and for a direction to transfer the flat in the name of the appellant. Along with the suit an application under Order 39 Rules 1 and 2 CPC was also for restraining the DDA from cancelling the allotment of flat till the disposal of the suit. By the impugned order, the learned Trial Court dismissed the application under Order 39 Rules 1 and 2 CPC holding that no prima facie case was made out by the appellant nor the balance of conveyance was in her favour and she was, therefore, not entitled to any injunction. This order has now been challenged by the appellant by filing this appeal.

(2.) There is no dispute between the parties that respondent no.2 had entered into an agreement to sell the flat in favour of the appellant. It is also not disputed that respondent no.2 had filed a suit in this Court for a declaration that the agreement between the parties was void, however, that suit was withdrawn on the expiry of the period of ten years during which there was prohibition under the agreement from selling the flat by the allottee to any other person. However, the question as to whether or not the allottee had a right to sell the flat, the flat within the period of ten years and what is the effect of the period of 10 years having expired in the meantime, is yet to be decided by the Trial Court. The appellant has already paid the entire consideration for purchase of this flat and is also in possession of the flat since 1977. In these circumstances, in my opinion, the learned Trial Court clearly erred in holding that the plaintiff did not have a prima facie case. The plaintiff had a right to protect her possession and was, therefore, entitled to be protected of the Court till the right of the parties were crystalised by a judgment of the Court in the suit filed by the appellant. In case the plaintiff was not protected by an order of the Court, not only that the suit would have become infructuous but she would have also suffered irreparable injury. Balance of convenience was clearly in favour of the appellant. In my view, therefore, the appellant was entitled to the grant of an injunction and status quo was required to be maintained till the disposal of the suit.

(3.) I, accordingly, allow this appeal, set aside the impugned order and restrain the respondent/DDA from cancelling the flat and dispossessing the appellant till the disposal of the suit by the Trial Court.