Vikramajit Sen, J.
1. The Plaintiffs have filed this suit for permanent injunction against the NDMC (Defendant No. 1) and Pearey Lal and Sons Private Limited(Defendant No. 2) from interfering with the Plaintiffs' possession or dispossessing the Plaintiffs from the portion of the suit property admeasuring 30 x 40 sq. ft. in B Phase, Ground Floor, 13-29, Harsha Bhawan, Middle Circle, Connaught Place, New Delhi shown in red in the Site Plan filed along with the plaint ( hereinafter referred to as the `Electric Sub Station' ) and also for restraining the Defendant No.2 from dealing with the said properties in any manner. An ex-parte ad interim injunction was passed on 8.3.2002 directing the maintenance of status quo with regard to the possession of the suit property. Arguments have been heard at length.
2. The Plaintiffs and Defendant No.2 had entered into Agreements to Sell dated 24.2.1989 (Plaintiff No.1), 7.2.1989 (Plaintiff No.2) and 9.2.1989 (Plaintiff No.3). For the present purposes the following Clause is of pivotal importance:
'The Vendor hereby agrees to sell to the Purchaser and/or his nominee a portion of the Ground Floor of Phase-B, forming part of Harsha Bhawan, which portion is more specifically delineated on the plan annexed hereto and thereon shown with its area shaded and coloured red, for a consideration of Rs.7,75,000.00 (Rs. Seven Lacs Seventy Five Thousand only)'.
3. Regretfully, for reasons which are obviously known only to the Plaintiffs and Defendant No. 2, the precise dimensions of the portions sold by the said Defendant to the Plaintiffs have not been spelt out in the above Clause or in any other part of the Agreement. Although the Plaintiffs have filed the Agreements to Sell, they have not filed the Site Plan attached to the Agreements, as specifically stated in the Clause extracted above. In the course of arguments, it has been contended by Mr. Kamal Mehta, learned counsel for the Plaintiffs, that the Site Plan could not be filed because it was not made available to the Plaintiffs even when the Agreement was executed in February 1999. I find it remarkable that such an averment is not to be found in the plaint. The Explanationn given by counsel for the Plaintiffs is that it has been so stated in the Replication, which forms part of the pleadings. As it will be seen hereafter, the absence of the Site Plan will assume pivotal importance. It is inconceivable that educated businessmen such as the Plaintiffs before me would have failed to remonstrate against the failure to furnish the Site Plan which had been specifically mentioned in the Agreements to Sell, at the first possible instance. It is equally incredible that during the passage of one decade, a demand for the Site Plan has not been raised. Facts of this magnitude should be mentioned at the very outset in the plaint and not by way of an answer to the defense put forward that is in the Replication. If it is pleaded in the Replication for the first time, the inference that would be reasonable to be immediately drawn is that a prima facie case on this issue does not exist in favor of the Plaintiffs. No doubt that the contention of Mr. Mehta that a copy of the Site Plan could easily have been filed by the Defendants, if in fact it exists, is certainly an engaging one, but it is not sufficient to draw an adverse inference against the Defendants. It is the Plaintiff who has to establish a prima facie case.
4. Dr. A.M. Singhvi, learned Senior counsel appearing on behalf of Defendant No. 2, relies on three documents to establish the specific area sold to the Plaintiffs. It appears that each of the Plaintiffs had jointly let out the their respective spaces, which are the subject matter of three Agreements to Sell, to Dhanlakshmi Bank Limited by Lease Deed dated 24.10.1997. This document has been executed on behalf of each of the Plaintiffs and the Lessee Banker. There is a recital in the Lease Deed which is to the effect - 'Whereas Lessers are desirous of giving on lease their premises available on the ground floor measuring 2510 sq. ft. super built up area (carpet area of 2050 sq. ft.), situated at E-13-29, Harsha Bhawan, Connaught Place, New Delhi, which is bounded as under:
East : 10' Wide Verandah/passage and Middle Circle RoadWest : Service laneNorth : Electric room and other's propertySouth : Other's property belonging to M/s. Dynamic Apartments Pvt. Ltd. and M/s. Anupam Chempharma Pvt. Ltd.'
5. The contention of Dr. Singhvi is that the carpet area stated in this Lease Deed corresponds exactly with the space which the Defendant No. 2 admits to have agreed to sell to the Plaintiffs. Secondly, attention has been drawn to the fact that the electric room mentioned as lying to the North of the demised premises is the disputed property, i.e., the Electric Sub Station of which the Plaintiffs now claim to be in possession. Had this been so, the description of the property lying to the North of the Plaintiffs property would not have been so described. This contention, at the present stage of the suit, is exactly persuasive. Apart from the Lease Deed, reliance has also been placed by the Defendant No. 2 on the Mutation letters dated 14.5.1997 addressed by Defendant No. 1 to the Plaintiffs in which the area is specifically mentioned as 730 sq. ft (Plaintiff No. 1), 730 sq. ft. (Plaintiff No. 2) and 580 sq. ft. (Plaintiff No. 3). The aggregate of these figures is 2050 sq. ft. which is also the area mentioned in the Lease Deed. I am satisfied that prima facie Defendant No.2 has succeeded in proving that the premises of which Mutation was allowed to the Plaintiffs corresponds precisely to the portion let out to Dhanlakshmi Bank Limited. Logically, thereforee, the area in dispute was not within the space agreed to be sold to the Plaintiffs. Mr. Mehta has contended, and rightly so, that Mutation does not constitute title. However, this is not an answer to the question of who was in possession of the premises in dispute. It supports the view that the Plaintiffs were in possession of the demised area only.
6. It has been submitted by Mr. Amit Bansal, learned counsel appearing on behalf of Defendant No.1 (NDMC) that the possession of the disputed area has been with the NDMC since 1984, as this was one of the pre-requisites for the grant of permission to Defendant No. 2 to carry out construction/alterations in the building. There is sufficient documentation on record to independently prove this fact. However, this statement has not been disputed by counsel for the Plaintiffs. Mr. Bansal further submits that the NDMC has not till date handed over possession of the said area to any person including Defendant No. 2. The stand of the NDMC is that its locks have been broken open by the Plaintiffs and Complaints dated 14.3.2002 and 19.4.2002 had been lodged with the police. It is not in controversy that a suit had been filed by Defendant No. 2 against the NDMC in respect of this very area, which was decreed in favor of Defendant No. 2. Since that party had filed Execution proceedings the NDMC had no option but to take necessary steps for the eventual vacation thereof. As no documentation is available to support the contention of the Plaintiffs that they had been handed over possession of the area by the NDMC, the Plaintiffs case is belied. Furthermore, since the possession of the NDMC predates that of the Plaintiffs in the building, and since possession was handed over to the NDMC by Defendant No. 2 it is difficult to appreciate any justification for the NDMC to handover possession to the Plaintiffs, as has been orally alleged. As in the case of the failure to furnish a Site Plan along with the Agreements to Sell, the plaint must necessarily contain clear and unequivocal averments pertaining to the time and manner of the Plaintiffs coming into possession of the Electric Sub Station. Again there is no pleading to this effect. Instead what has been averred in paragraph seven of the plaint is - 'that part of the suit property having an approximate area of the said portion though have been in the possession of the Plaintiffs from the very inception in which portion also Plaintiffs have made some construction but Plaintiffs have not been in a position to properly utilise the said portion of the suit in view of the fact that some electric equipments which were installed by the Defendant No.1 in the said portion of the suit property has not been finally shifted till date due to acts and omissions of Defendant Nos. 1 and 2'. These pleadings are wholly vague and lacking in material particulars. The immediate inference to be drawn from these averments is that the Plaintiffs considered themselves in notional possession only. It is difficult to appreciate how a party can expect interim relief where necessary facts have not been precisely pleaded.
7. The correspondence exchanged between the Defendants discloses that Defendant No.2 had to deposit Rs.3,72,000/- for establishing an alternate Electric Sub Station as far back as on 1.4.1985. Consent for shifting Electric Sub Station can be found in the Defendant No. 2's letter to Defendant No.1 dated January 5, 1999. It does not make the slightest difference that in the inter se litigation between the Defendants, the Plaintiffs were not a party. This is for the reason that the dispute between them starts from a period in which the Plaintiffs had not even entered upon the site. It was also unnecessary for the Plaintiffs to be parties since there is nothing on record, prior to the filing of the present suit, whereby they have staked their claims to the Electric Sub Station. Before departing from the absence of any prior claims to the Electric Sub Station, it is relevant that a legal Notice dated July 11, 2000 had been addressed to the Plaintiff No. 1 in which there was a specific mention of 730 sq. ft etc., which the Defendant No.2 admits even today. Learned counsel for the Plaintiffs has not shown that in response to said Notice the Plaintiffs had refuted this statement or claimed any larger area including the said Electric Sub Station.
8. Mr. Mehta has , with great vehemence, submitted that a determination of disputed question of fact can only be made at the culmination of the suit, after evidence has been led by the parties. This proposition cannot be debated upon. However, it begs the question whether the Plaintiff has succeeded in disclosing a prima facie case. An argument cannot be heard to the effect that even in the absence of specific and material pleadings and persuasive material, a temporary injunction once granted must invariably be continued till the end of the suit. This proposition proffered by Mr. Mehta is not supported by any precedent or other authority of law. At the stage of granting and/or confirming a temporary injunction the Court is duty bound to consider whether a prima facie case has been disclosed, and whether the balance of convenience is in favor of the party seeking an injunction, and also whether such a party would suffer irreparable injury in the event of the Defendant not being interdicted in the manner prayed for. Similarly the argument that 'the case involves a factual matrix' and, thereforee, the ex-parte injunction should be continued must be rejected forthwith.
9. Mr. Mehta has also orally contended that it is the Plaintiffs' case that they were in possession since 'the first week of March, 2002'. Firstly, this is so proximate to the filing of the present suit as to render the statement, if not incredible, then at least doubtful. At the very least, it brings into the spot light that the balance of convenience is not in favor of the Plaintiffs. The Defendants have been in possession of the Electric Sub Station for as many years as the days in which the possession of this area is alleged by the Plaintiffs to be with them. Mr. Mehta's next argument is that even a trespasser's possession is to be protected. This proposition is too widely stated as there are precedents on either side of the watershed. He has also sought support from Section 6 of the Specific Relief Act to predicate his argument that even if the Plaintiffs have forcibly taken possession of the suit premises (Electric Sub Station), the NDMC or the owner/Defendant No. 2 should have initiated appropriate legal proceedings for recovery of its possession. However, I find merit in the contention of Dr. Singhvi that such an action may have been expected in law in ordinary circumstances where the parties were not already embroiled in litigation. Where, however, the contention of the Defendants is that the Plaintiffs had forcibly entered into and upon the premises subsequent to this Court passing a status quo order in respect of possession, the correct remedy would be to immediately approach the Court which is seized of the matter and had granted the injunctory relief.
10. If the facts alleged by the Defendants to have transpired after the passing of the ad interim ex-parte injunction on 8.3.2002 are found to be correct, it would be a case of subverting the due process of law. In such an event the Court can hardly be expected to look askance and helplessly and placidly wait for the aggrieved party to file a fresh suit for restoring the status quo ante, and/or before initiating appropriate steps under the Contempt of Courts Act. Apart from the complaints of the NDMC dated 14.3.2002 and 19.4.2002 there is also a similar complaint of Defendant No.2 dated 9.3.2000 allegedly prior to the service of the interim Orders on them. In these circumstances even if the Plaintiffs are presently in possession of the suit property (Electric Sub Station), it would be a travesty of justice if such illegal possession receives jural acceptance or acquiescence.
11. The Plaintiffs have altogether failed to prove that a prima facie case and the balance of convenience exists in their favor. What appears to have transpired is that the Plaintiffs had conceived of the facts averred in the Plaint on becoming aware that possession of the Electric Sub Station was imminently to be handed over by Defendant No.1 to Defendant No.2. For all these manifold reasons, I am satisfied that the Plaintiffs have failed to disclose a prima facie case which would justify the issuance of an injunction against the Defendants. The interests of justice and majesty of the law compel me to authorise NDMC to resume and protect its possession of the suit premises forthwith. Police assistance may be taken if considered necessary.
12. I.A. 2452/2002 is dismissed with costs of Rs.5000/- payable to each of the Defendant.
13. Accordingly, I.A. 3275/2002 is allowed.
14. Suit No. 534/2002. List the matter for further proceedings on 21.4.2003 before J.R. (O).