Delhi District Court
Savita Khatri vs Rahul Chopra on 16 August, 2024
CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another
IN THE COURT OF ACJ-cum-CCJ-cum-ARC, SOUTH
DISTRICT COURTS COMPLEX, SAKET, NEW DELHI
-Presided by: PARAS DALAL, D.J.S.
Civil Suit 23/2023
CNR No. DLST03-000074-2023
Smt. Savita Khatri
W/o Sh. Gulvinder Khatri
R/o E-25, Second Floor, Flat No.6
Paryavaran Complex
Opp. Vidya Sagar Hospital
Ignou Road, Saidulajab
New Delhi-110030
.......Plaintiff
versus
1.Mr. Rahul Chopra S/o Sh. Charan Dass Chopra R/o Flat No.202, Royale Retreat-II Charmwood Village, Suraj Kunj Road Faridabad, Haryana-121009
2. Pooja Adhikari Alias Khop/Khup Kumari Adhikari D/o Sh. Govind Prasad Adhikari R/o E-25, 3rd Floor, Flat No.8 Paryavaran Complex Opp. Vidya Sagar Hospital Saidulajab New Delhi-110030 .......Defendants Date of Institution : 05.01.2023 Date of Pronouncement : 25.07.2024 amended on 16.08.2024 Decision : Decreed Pages 1 of 8 CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another SUIT FOR RECOVERY OF DECLARATION, PERMANENT AND MANDATORY INJUNCTION Argued by: Sh.G.S. Khatri, Ld. Counsel for the Plaintiff AMENDED EX-PARTE JUDGMENT
1. This is a suit for declaration and permanent injunction in favour of the plaintiff and against the defendants to declare that the terrace of suit property i.e. E-25, Prayavaran Complex, Opp. Vidhya Sagar Hospital, Nag Apartments, IGNOU Road, Sayed-ul-ajaib, New Delhi-110030 is a common area meant for common use by all the respective occupants of the four east side built-up apartments situated on four respective floors below the said common terrace. The plaintiff has also sought injunction against the defendants from injuncting them to project to the prospective buyers of flat no.8, third floor, east side part of suit property that terrace of east side is exclusively clubbed with it. Further injunction has been sought by the plaintiff against the defendant to remove any encroachment, obstruction, hindrance in either accessing the common terrace/ common lift room or on the common terrace/ common room situated over and above the third floor, east side of suit property and also to remove personnel belongings which includes amongst others things, heavy cemented pots, already extended electricity wired connection from their flat no.8, removal of flood lights and CCTV camera on the mumty, already fastened iron elevation pipes/ bars upon the perimeter wall on the common terrace, as shown in the site plan filed alongwith the plaint by the plaintiff.
Averments in the Plaint Pages 2 of 8 CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another
2. The case of plaintiff is that she is the owner in possession of apartment/ flat at the second floor, east side of the multi-storey apartment building bearing no. E-25, Paryavaran Complex, Opp. Vidya Sagar Hospital, IGNOU Road, Sayed-ul-Ajaib, New Delhi-110030. The plaintiff states that the property i.e. E- 25, Paryavaran Complex, Opp. Vidya Sagar Hospital, IGNOU Road, Sayed-ul- Ajaib, New Delhi-110030 (hereinafter referred to as 'suit property') consists of total eight apartments/ flats, two on each floor from ground floor to 3 rd floor and infact two irregular flats are also illegally constructed in the stilt floor. Plaintiff is residing in the east side of suit property at second floor. The plaintiff side alleges that the defendants are occupant of floor above i.e. third floor east side apartment/ flat. The plaintiff alleges that above the third floor there is common terrace, however the defendants have wrongly encroached the same, placed various articles on the same without the knowledge and consent of the other flats owners and are even representing the common terrace to the exclusive part of flat no.8 i.e. flat at east side of third floor of which defendants are occupants.
3. The plaintiff further alleged that she is owner in occupation of her flat since October 2013 having purchased the same from Sh. Charan Dass Chopra, father of defendant no.1 and in their title documents it is mentioned that plaintiff shall have uninterrupted right to access terrace situated above the 3 rd floor of the above said building. The plaintiff alleged that defendant no.1 agreed to pay the repair cahrges qua this damage, as he admitted that the AC unit was causing hinderance in his expansion of floor above third floor. The plaintiff alleged that on 07.03.2017 morning, husband of the plaintiff found damage to the outdoor unit of air conditioner which was also repaired and the source of damage was repeated use of screw causing puncture in the condenser coil. The plaintiff further alleged the defendant no.1 himself stated that he was planning to raise construction on the third floor by erecting one more flat and he started raising Pages 3 of 8 CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another unauthorised construction on the common terrace and also placed heavy cemented pots of plants, extending an electricity wired connection from flat no.8, installed floor lights on the roof, installed iron elevation pipes/ bars on the perimeter wall on the common wall with fastened screws to the wall which can then be used to build porta cabin.
4. The plaintiff alleged that unwarranted conduct and behaviour as well as attitude of the defendants have caused damage to the property of the plaintiff as well as suit property with especially the common roof over the 3 rd floor. The plaintiff has thus preferred the present suit.
5. Summons of the suit were deemed served upon the defendants, however defendant no.1 did not appear despite service on 27.03.2023 and he was proceeded ex-parte vide Order dated 25.07.2023. The defendant no.2 entered appearance and he was granted numerous opportunity to file written submissions, however finally the defence was struck off on 26.09.2023.
6. In ex parte evidence, plaintiff examined himself as PW1 and filed his evidence by way of affidavit Ex.PW1/1. He relied upon the following documents:- (31.05.2024)
a) Ex.PW1/2 i.e. Site Plan of Apartments with common spaces in facilities at E-25, Paryawaran Complex;
b) Ex.PW1/3 (OSR) i.e. True copy of executed GPA, Will, Possession Letter, Receipt in favour of plaintiff by Responent sellers;
c) Mark.A (Colly) i.e. copy of invoices dated 07.03.2017 issued by Supertech in respect of repair of AC (outdoor) unit of plaintiff.
d) Mark.B i.e. true copy of FIR no. 71/2017 registered against defendants in respect of damage caused to outdoor uniot of AC of plaintiff;
Pages 4 of 8 CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another
e) Ex.PW1/4; certified copy of order dated 24.03.2017 passed by Ld. SCJ against Defendants;
f) Ex.PW1/5; certified copy of written statement filed by defendant no. 1 (Rahul Chopra) in CS SCJ 325/2017;
g) Ex.PW1/6; certified copy of written statement filed by defendant no. 2 (Pooja-Defendant no. 4 therein) in CS SCJ 325/2017;
h) Ex.PW1/7 (Colly); certified copy of GPA, Agreement to Sell dated 01.08.2016 executed in favour of defendant no. 2 by respective sellers including defendant no.1 hereinin;
I) Ex.PW1/8; certified copy of order dated 16.05.2017 passed in SCJ 325/2017;
j) Ex.PW1/9; certified copy of order dated 24.10.2019 passed in SCJ 325/2017;
k) Ex.PW1/10 (Colly); certified copy of order dated 27.02.2020 and order passed by application under order 39 Rule 1 & 2, CPC passed in SCJ 325/2017;
l) Ex.PW1/11 (Colly); original copies of photographs dated 14.03.2017, 15.03.2017, 16.03.2017, 17.03.2017 & 21.03.2017.
m) Ex.PW1/12 (Colly); original copies of photographs of common terrace above 3rd floor, E-25, Paryawaryan depicting encroachment caused by defendants.
n) Ex.PW1/13 (Colly); true internet copy of FIR No. 603/2018 lodged against defendant no. 2.
o) Ex.PW1/14; copy of original photograph dated 18.02.2023 depicting crack in pillar of multi apartment building bearing no. E-25, Paryawaran.
Pages 5 of 8 CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another
7. Thereafter, vide separate statement of plaintiff, plaintiff's evidence was closed.
8. I have heard ex-parte arguments on behalf of the plaintiff and have also perused the record carefully.
9. PW-1 tendered her evidence as per pleadings. Ex. PW1/3 (OSR) establish her title, although for the relief stated she is not required to prove her title. The plaintiff has also filed various documents to show her possession over her apartment/ flat and various previous cases between both the sides. The documentary evidence put forth substantiated with the deposition on oath establishes her ownership and possession. PW-1 has stated on oath.
10. The testimony of the PW-1 has gone unchallenged, uncontroverted and unrebutted. Since defendants were proceeded ex-parte and no evidence was led by the defendant, there is nothing on record which casts any doubt on the testimony of PW-1.
11. The plaintiff by documentary proof proved that the defendants have placed heavy cemented pots on the terrace without the consent of other occupants, they have installed flood lights, CCTV as well as many iron/ pipes which can be used to set up temporary sheds. This Court is also reminded of Delhi Apartment Ownership Act, 1986 and specifically to Section 3(j) which defines 'common areas and facilities' as well as Section 4 which vests ownership of common areas and facilities in all apartment owners. Any agreement or deed to the contrary is hit by the provisions of the Act. From the site plan it can be seen that the suit property has two flats in each floor, having total of eight flats. Even stilt floor has two irregular flats. Even if both West and Pages 6 of 8 CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another East sides are considered as different apartments, the total floor/ apartment in each is four and one irregular flat in stilt floor. The Act, 1986 squarely applies on the suit property and thus the plaintiff and all flats owners of the East side of the suit property have common ownership of the common areas and facilities. The roof over the third floor also has to be commonly enjoyed by each apartment/ flat owner.
12. Since the claim of plaintiff has gone uncontested and unrebutted, the cause of action stands proved by preponderence of probability.
13. In view of the above discussion, the suit of the plaintiff stands decreed against defendants. The suit is therefore decreed as under - a. it is declared that the terrace situated over and above the third floor, east side of the multi-storey apartment bearing no. E-25, Paryavaran Complex, Opposite Vidya Sagar Hospital, Nag Apartments, IGNOU Road, Sayed-ul-Ajaib, New Delhi-110030 is a common area meant for common use by all the occupants of the east side built apartments;
b. the defendants are permanently injuncted from projecting to the prospective buyers of the flat no.8, third floor, east side of E-25, Paryavaran Complex, Opposite Vidya Sagar Hospital, Nag Apartments, IGNOU Road, Sayed-ul-Ajaib, New Delhi-110030 that east side portion of terrace situated over and above it is exclusively clubbed with it either in terms of dominion or ownership;
c. the defendants are further injuncted from encroaching, obstructing, hindering in either access to the common terrace over and above third floor, east side of multi-storey apartment bearing no. E-25, Paryavaran Complex, Opposite Vidya Sagar Hospital, Nag Apartments, IGNOU Road, Sayed-ul-Ajaib, New Delhi-110030; and Pages 7 of 8 CS SCJ 23 of 2023 Savita Khatri v. Rahul Chopra and another d. the defendants are further mandatorily injuncted to remove any encroachment, obstruction, hinderance cause by them on common terrace over and above third floor, east side of multi-storey apartment bearing no. E-25, Paryavaran Complex, Opposite Vidya Sagar Hospital, Nag Apartments, IGNOU Road, Sayed-ul-Ajaib, New Delhi-110030, especially for removal of heavy cemented pots of plants, flood lights, CCTV camera as well as pipes/ bars upon the perimeter wall on the common terrace over and above third floor, east side of multi-storey apartment bearing no. E-25, Paryavaran Complex, Opposite Vidya Sagar Hospital, Nag Apartments, IGNOU Road, Sayed-ul-Ajaib, New Delhi- 110030. The defendants are directed to remove obstruction, hinderance, encroachment forthwith.
14. Decree sheet be drawn accordingly.
15. File be consigned to the record room after due indexing and pagination.
Digitally signed by PARAS PARAS DALAL Date:
DALAL 2024.08.16 14:34:44 +0530 Announced in the open Court (PARAS DALAL) on 25.07.2024 amended on 16.08.2024 ACJ-CCJ-ARC(South) Saket Courts/Delhi Pages 8 of 8