* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 169/2010
Date of Decision : 08.11.2010
RAJIV LUTHRA ..... Appellant
Through: Mr.P.P.Ahuja, Adv.
versus
NEENA LUTHRA & ORS. .... Respondents
Through: Mr. Pramod Kr. Sharma, Adv. for
Respondent No.-3.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
: MOOL CHAND GARG,J (Oral)
1. This order shall dispose of an appeal filed by the appellant
assailing the order dated 04.02.2010 passed by the learned ADJ, Delhi
whereby while modifying the order directing maintenance of status quo
of the suit property which was passed ex parte, the ADJ has observed
as follows:-
“Although there is no denial that preserving the possessory
and title status of the flat in question would be required to
avoid complication in this suit but considering the unilateral
cancellation of registered GPA, the blanket status quo order
cannot be allowed to continue as it is. Hence that status
quo order qua injucting the defendant from selling,
alienating, transferring or creating third party interest in the
suit property is made absolute pending trial but with a rider
that in case defendant No.3 so desire, he can alienate the
property with prior permission of this Court. The permission
application as and when move, if so moved, shall accompany
the full particulars of the prospective buyer apart from
ensuring personal appearance of the buyer in the Court.
This would ensure the prospective buyer, if any, who intends
to get transposed in place of defendant No.3 would be
impleaded automatically under Order 22 r 10 CPC. This
rider is also necessary because the suit in hand appears to
be an offshoot and a spillage of the matrimonial dispute
between the plaintiff and defendant No.1. Application U/O
39 (1)(2) CPC stands disposed of accordingly.”
FAO 169/2010 Page 1 of 3
2. The appellant is the original plaintiff and is aggrieved by the
aforesaid modification. Brief background of this case is that on the day
when the suit was filed the appellant and respondent No.1 were
husband and wife but later on they were divorced by a decree of divorce
obtained by mutual consent. The dispute in hand is qua flat No.C-304,
Venus Apartment, H-4/5 Pitam Pura Delhi. Admittedly, the appellant
and respondent No.1 became joint members of respondent No.2-society.
The flat in hand was jointly allotted to them after consideration of `6.50
lacs was paid. Admittedly this flat was under possession of various
tenants from time to time. Also, admittedly owing to matrimonial
dispute, appellant herein admittedly executed a registered GPA
registered with Sub Registrar, Jammu in favour of respondent no.1 on
25.06.1999. Apart from this document an agreement and an affidavit
was also executed upon which the appellant has also admitted his
signature but has denied the text. As per the agreement the power of
attorney was executed by the appellant in favour of respondent No.1
after receiving consideration of `3 lacs from her. This GPA, as per
appellant, was revoked on 06.10.2003 unilaterally at Delhi before Sub
Registrar, Pitam Pura.
3. It is said that by virtue of power of the GPA dated 25.06.1999,
despite its revocation on 06.10.2003, respondent No.1 entered into an
agreement for sale of the flat in question with respondent No.3 on
31.03.2004 and handed him over the possession of the flat. Aggrieved
of this transaction, the appellant approached the trial Court with the
suit praying or cancellation for the agreement to sale apart from seeking
possession of his undivided share in that flat and for permanent
injunction.
4. In view of the aforesaid admitted facts which goes to show that
with respect to the suit property, there is admission on behalf of the
appellant that the first respondent was also a joint member of the
respondent No.2/society along with the appellant and the flat in
question was jointly allotted to them after payment of `6.50 lacs. There
is also an admitted fact that a registered power of attorney was
executed by the appellant in favour of respondent No.1, his wife on
25.06.1999 after receiving consideration of ` 3 lacs from her. It is
FAO 169/2010 Page 2 of 3
based upon the aforesaid document, respondent No.1 entered into an
agreement to sell the property. However, she has not been able to
execute the sale deed as the power of attorney stands revoked.
5. In these circumstances, unless evidence is recorded, it cannot be
said that the appellant is the absolute owner of the property and thus,
is liable to restrain the respondent from exercising any power of
ownership with respect to the said property. The learned ADJ has
protected the interest of both the parties by modifying the ex parte
interim order passed in favor of the appellant on the date of filing of the
suit. The order virtually amounts to restrain the first respondent from
alienating the property in favour of the third party unless permission is
obtained from the Court.
6. Taking all these facts into consideration, I find that there is no
reason to set aside the impugned order passed by the ADJ in this
appeal. Accordingly, the appeal is dismissed.
7. No Costs.
8. A copy of this order be sent to the trial Court concerned along
with the
C.M.7475/2010
Dismissed as having become infructous.
MOOL CHAND GARG, J
NOVEMBER 08, 2010
‘anb’
FAO 169/2010 Page 3 of 3