Delhi District Court
Sh. Pawan Chawla vs The New Delhi Municipal Council on 11 January, 2019
IN THE COURT OF MS.NUPUR GUPTA, CIVIL JUDGE-I,
PATIALA HOUSE COURTS, NEW DELHI
Judge Code DL-0804
CS No.56961/2016
1. Sh. Pawan Chawla,
S/o Late Shri G.D. Chawla,
R/o C-50, Rajouri Garden,
New Delhi-110027.
2. Sh. Pankaj Chawla,
S/o Late Sh. G.D. Chawla,
R/o C-44, Rajouri Garden,
New Delhi-110027. ... Plaintiffs
Versus
1. The New Delhi Municipal Council,
(A statutory body constituted under the New Delhi Municipal
Council Act, 1994)
Having its office at:
Palika Kendra,
New Delhi-110001.
(Through its Chairperson/Secretary)
2. Smt. Alape Kaur,
D/o Late Sh. S. Rajdev Singh,
R/o 224, Jor Bagh,
New Delhi-110003.
3. Sh. S. Indrave Singh Mann,
S/o Sh. Shivender Pal Singh Mann,
R/o 10, Sardar Patel Marg,
New Delhi-110001.
4. M/s Atma Ram Properties Pvt. Ltd.
Regd. Office at Office No. 8, First Floor,
Scindia House, (Atma Ram Mansion),
Connaught Circus, New Delhi-110001.
(Through its directors) ... Defendants
CS No.56961/2016
Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 1/23
Date of Institution : 18.07.2014
Date of Reserving Judgment : 15.11.2018
Date of Judgment : 11.01.2019
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. By filing the present suit, the plaintiffs have sought a decree of permanent injunction in favour of the plaintiffs and against the defendants and its officials, agents, servants, employees and associates etc. thereby restraining them permanently from removing and or shifting the electricity meter from the place where it is installed in the tenanted premises no. G-73, First Floor, Connaught Circus, New Delhi-110001 for the last so many years and further restraining them from entering into the tenanted premises and from aiding the landlords/owners/occupants or their employees from demolition of the wall where the electricity meter is installed in the tenanted premises without prior intimation and permission of the plaintiffs.
PLAINTIFF'S VERSION AS PER PLAINT
2. The brief facts of the present case from the perspective of plaintiffs as discernible from the plaint and documents filed by the plaintiffs are that the plaintiffs are tenants in respect of property bearing no. G-73, Connaught Circus, New Delhi, on the First Floor for the last more than 24 years vide a Lease Deed executed between the landlady and landlords/owners and plaintiff on 16.10.1990. It is stated that the tenancy of the plaintiffs is extendable and requires intimation to be sent to the landlords/owners for the extension of lease period every 5 years and the same has been duly extended by the landlady CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 2/23 and landlords/owners. It is stated that a site plan has been signed by the landlords/owners which was sanctioned by the defendant NDMC in 1991 showing the tenanted premises annexed with the Lease Deed dated 16.10.1990. It is stated that the plaintiffs are peacefully enjoying the possession of the suit property without any demur for the last more than 24 years. It is stated that the defendant no. 1 is a statutory Body constituted under the New Delhi Municipal Council Act, 1994, having its office at Palika Kendra, New Delhi-110001. It is stated that being a statutory body the defendant no. 1 has to perform various statutory and other functions including a variety of functions related to permission for construction of building and structural changes in any premises falling in the municipal limits of the defendant no. 1 and is also engaged in providing domestic/commercial electricity/power connection and supply to the residents/commercial units and for billing the consumers for consumption of electricity, meters are installed by the defendant at the premises of the consumer(s) wherever instructed by the consumer within the premises. It is stated that the plaintiffs applied for an electricity connection in the suit property with the defendant no. 1, which was duly sanctioned and installed by the defendant no. 1 since inception of the Lease Deed at the West side of the wall at the First Floor just opposite to the Main Entrance of the tenanted premises bearing CA No.4379120974 and K. No. K79365A. It is stated that the plaintiff has been paying the electricity charges and the last bill was paid on 23.06.2014 to the defendant no. 1.
3. It is stated that in the month of December 2013 the plaintiffs were approached by some property dealers along with employees of the landlords to remove the electricity meter from the wall and to allow CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 3/23 them to break down the said wall for making an unauthorized entrance for other tenants/occupants of G-72, Connaught Circus, New Delhi, who have exclusive entry and exit from the other side of the building. It is stated that the plaintiffs strongly objected to their motives as the said wall was is in existence for last more than 24 years. It is stated that the said staircase in the suit property is exclusively used for the premises on the first floor by the plaintiffs. It is stated that on resistance by the plaintiff, the employees of landlord along with tenants of premises no. G-72 threatened to remove the wall forcefully. It is stated that the plaintiffs had also made a complaint in this regard to the concerned SHO, Police Station, Connaught Place, New Delhi vide a letter dated 26.12.2013. When nothing concrete was done as prayed for after expiry of 5 months, the plaintiffs again sent a reminder dated 19.05.2014 to the concerned SHO, PS Connaught Place, New Delhi for taking necessary action. It is stated that on 07.07.2014, two linesmen and a junior engineer of the defendant no. 1 again visited the tenanted premises of the plaintiffs and threatened to remove the electricity meter. It is stated that upon a determined protest by the plaintiffs the said persons withdrew their efforts, but threatened the plaintiffs with dire consequences as they stated that they had the necessary permission to shift the said electricity meter and remove the wall on which the same electricity meter was installed. It is stated that the plaintiff lodged a complaint in this respect with defendant no. 1 vide a letter dated 07.07.2014 with a copy of the SHO, Police Station Connaught Place, New Delhi, but nothing has been done by the officials. It is further stated that the cause of action for filing the present suit first arose on 27.12.2013 when the plaintiffs submitted CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 4/23 their letter dated 26.12.2013 with the office of the defendant no. 1 and it further arose on 20.05.2014 when the plaintiffs submitted their reminder letter dated 19.05.2014 with the office of the defendants.
4. In these circumstances, the plaintiffs have prayed for a decree of permanent injunction in favour of the plaintiffs and against the defendants no. 1 to 4 and their officials, agents, servants, employees and associates etc. thereby restraining them permanently from removing and or shifting the electricity meter from the place where it is installed in the tenanted premises no. G-73, First Floor, Connaught Circus, New Delhi-110001 for the last so many years and further restraining them from entering into the tenanted premises and the defendant no. 1 from aiding the landlords/owner i.e. the defendant no. 2 to 4.
VERSION OF DEFENDANTS AS PER WRITTEN STATEMENT
5. Upon being served with the summons of the suit, the defendants put in appearance and filed a written statement. In the written statement, similar averments have been made. The sum and substance of the written statements is as under : -
6. Defendant no. 1 has stated in its written statement that the present suit is not maintainable and the same is liable to be rejected with costs. It is further stated in the written statement that no notice under section 80 CPC has been served by the plaintiffs on the defendant no. 1 and the same is based on false, frivolous and vexatious pleas as no cause of action has been disclosed.
7. Defendant no. 2 to 4 have stated in its written statement that CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 5/23 plaintiffs have not approached this court with clean hands and are guilty of suppresio veri and suggestio falsi as the plaintiffs are claiming injunction against the defendants from using their own property for their benefit & preventing the answering defendants from using the common portion and the common stairs in which the plaintiffs have no exclusive right of any nature whatsoever. It is further stated that the suit is liable to be rejected under Order 7 Rule 11 CPC as no cause of action arose in favour of plaintiffs and against the answering defendants. It is further stated that the suit of the plaintiff is barred under section 38, 41 (f), (i), & (j) of Specific Relief Act, 1963.
8. On merits, it is contended on behalf of defendant no. 2 to 4 that the assertions made by the plaintiffs are contrary to clause (I) of last registered lease deed and plaintiffs are assuming extension of lease deed on their own which is impermissible in law and there is no other lease deed between the plaintiffs and the defendants except the registered lease deed dated 16.10.1999. It is further stated that as per clause (d), (l) and (m) of the lease deed, it is evidently clear that defendants have right to make other floors above the suit premises i.e. G-73 and the plaintiffs have no right to make any objection in raising of such floors by the defendants. It is stated that the plaintiffs have never bothered to ascertain as to the portion on which the meter is being installed belongs to such consumer or not and it is also not clear as to on which date the plaintiffs have installed the meter on the said wall. It is further stated that the west side of the wall opposite to main entrance of tenanted premises, is in fact surrounding/outer wall of premises no. G-72, which has nothing to do with the tenanted CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 6/23 premises i.e. G-73. It is worth mentioning here that as per Delhi Building Bye-laws relating to Fire Safety Norms and Delhi First Safety Act and Rules, minimum two Exits/Fire Exit are mandatorily required to be provided in places which are covered in assembly building. It is further stated that plaintiffs are concealing the fact that the said west side wall does not belongs to the plaintiffs and the owner of the G-72 has been removing the said wall to make fire exit for his premises. It is further stated that defendant no. 2 vide its registered letter dated 14.02.2013, addressed to defendant no. 1 with copy thereof to SHO, PS Connaught Place has requested all the concerned persons for shifting of said meter from the present location to any other suitable location of the wall(s) of G-73 as the present location where the meter is installed is in fact Fire Exit of premises no. G-72 and the same is required to be opened again and non-opening of the same can lead to unforeseen incident during fire mishap. It is further stated that plaintiffs have miserably failed to even mention the name of the alleged property dealer or even the employees of defendants who allegedly threatened to break down the wall for making alleged un-authorized entry for tenant/occupant of G-72, Connaught Circus, New Delhi. It is further stated that the meter is installed on the wall of G-72 and its owners have every right to approach NDMC for said shifting of meter and the same cannot be refused to be done by defendant no. 1 in mechanical manner only because of the fact that electric connection/electric meter is in the name of the plaintiffs. It is stated that in view of the above said averment the plaintiffs are not entitled to any relief as prayed as the same shall lead to infringement of valuable rights of answering defendants qua the premises no. G-72 in regard to CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 7/23 its beneficial use and enjoyment.
REPLICATION TO THE WRITTEN STATEMENT OF DEFENDANTS
8. The plaintiffs filed replication to the written statement of defendants reiterating the averments made in the plaint and denying the contradictory pleas raised by the defendant and re-affirming the relief claimed.
IDENTIFICATION OF ISSUES
9. Admission/ denial of documents was not conducted. From the pleadings of the parties, the following issues were framed which are as follows :-
1. Whether the plaintiffs are entitled to decree of permanent injunction against the defendants restraining them from removing or shifting the electricity meter from the place where it is installed? OPP.
2. Whether the present suit is barred by provision of section 38, 41 (f), (i) & (j) of Specific Relief Act, 1963? OPD.
3. Whether the plaintiffs have not approached the court with clean hand and are guilty of concealing the material facts? OPD.
4. Relief.
EVIDENCE
10. PW1 Sh. Pankaj Chawla (plaintiff no. 2) stepped into the witness box and deposed vide his affidavit Ex.PW-1/A. He relied upon the following documents:-
S.No. Exhibit/Mark Nature of Document 1. Mark PW1/1 Copy of site plan of tenant premises CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 8/23 2. Ex.PW1/2 Copy of lease deed dated 16.10.1990 (OSR) 3. Ex.PW1/3 Copy of letter dated 18.10.1990 for extension of lease (OSR) 4. Mark PW1/4 Copy of electricity bill for May 2014 in the name of
both plaintiffs issued by the defendant no. 1 NDMC
5. Mark PW1/5 Copy of receipt dated 23.06.2014 issued by the defendant no. 1 NDMC
6. Mark PW1/6 Copy of letter dated 26.12.2013 addressed to the defendant no. 1
7. Mark PW1/7 Copy of letter dated 26.12.2013 addressed to SHO PS Connaught Place
8. Mark PW1/8 Copy of reminder letter dated 19.05.2014 addressed to the defendant no. 1
9. Mark PW1/9 Copy of reminder letter dated 19.05.2014 addressed to SHO PS Connaught Place
10. Mark PW1/10 Copy of letter dated 07.07.2014 addressed to the defendant no. 1
11. Mark PW1/11 Copy of letter dated 07.07.2014 addressed to SHO PS Connaught Place
11. PW-1 was cross examined at length by counsel for the defendant no. 2 to 4. However, Counsel for the defendant no. 1 did not avail the opportunity to cross-examine the witness.
12. Plaintiff has also examined PW2 Sh. Jagparvesh Kumar, working as Junior Engineer, NDMC, who proved documents Mark PW1/6, Mark PW1/8 and Mark PW1/10. PW2 was also cross- examined by the counsel for the defendants no. 2 to 4. However, Counsel for the defendant no. 1 did not avail the opportunity to cross- examine the witness. Thereafter, the plaintiff evidence was closed on 16.08.2018.
13. On the other hand, defendant no. 3 Sh. S. Indrave Singh Mann stepped into witness box as DW1 on behalf of defendants no. 2 to 4 and deposed vide his affidavit Ex.DW1/A. He relied upon the following CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 9/23 documents:-
S.No. Exhibit/MarkNature
of Document
1. Ex.DW1/1 Certified copy of lease deed dated 16.10.1990;
2. Ex.DW1/2 Letter dated 18.08.2012 issued by State Bank of
Bikaner & Jaipur to defendants no. 2 to 4 (OSR);
3. Mark A Photocopy of certified copy of judgment dated
11.01.2011 passed by Hon'ble High Court of Delhi;
4. Ex.DW1/3 Copy of letter dated 14.12.2013 along with copy of postal receipts (OSR) (Colly.);
5. Ex.DW1/4 Copy of letter dated 18.11.2014 (OSR);
6. Ex.DW1/5 Photographs of G-72 internal portion and meter on the wall of G-72 (Colly.) (objected to mode of proof);
7. Mark B Copy of lease deed dated 01.11.2014.
14. Defendant no. 2 to 4 also examined DW2 Sh. Om Prakash Upadhayaya, Head Peon/Head Messenger from the office of State Bank of India in support of their case, who brought authority letter Ex.DW2/1, Employee card Ex.DW2/2 and original employment card of SBI Ex.DW2/3.
15. Both the witnesses were cross-examined at length by the Counsel for plaintiffs and thereafter counsel for the defendant no. 2 to 4 closed the evidence on behalf of the defendants vide his statement dated 20.10.2018. Defendant no. 1 has not led any evidence in the present matter and thus defendant's evidence was closed.
ARGUMENTS
16. Ld. Counsel for the plaintiffs submits that plaintiffs have duly placed on record the site plan mark PW1/1 which shows their tenanted portion. Plaintiffs further submits that since there is no issue with regard to proving that the wall on which the electricity meter is CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 10/23 installed is a wall of property bearing no. G-72, therefore the same is not required to be proved. It was further contended by the counsel for the plaintiff that the site plan of property bearing no. G-73, does not show the wall of G-72 either in Mark PW1/1 or in Ex.DW1/1. It was also argued on behalf of plaintiff that the electricity meter in question was installed in the year 2005 as per the copy of electricity bill mark PW1/5 and defendants kept silent from the year 2005 to 2014. Thus, as per section 115 of Indian Evidence Act, law of estopple applies upon the defendants and plaintiffs are entitled for injunction as claimed by them.
17. Per contra, learned counsel for defendants no. 2 to 4 submits that plaintiffs have failed to proved the site plan mark PW1/1. It was further contended that Ex.DW1/P1 clearly shows the tenanted portion which is demarcated in red portion. The site plan Ex.DW1/P1 has been admitted by PW1 in cross-examination as the same was prepared along with the lease deed. It was argued by the defendants no. 2 to 4 that plaintiffs have not approached this court with clean hand as they have falsely claimed the roof rights and the exclusive rights over the staircase. It was also argued by the defendants that plaintiffs have admitted in para 4 of the plaint that electricity meter is installed at the west side of the wall at the first floor. Ld. Counsel for defendant further submitted that defendants have been able to proof that the door exist on the wall of G-72, whether sanctioned or not. Defendants have also argued that they were not aware about the installation of electricity meter till the year 2012 when the State Bank of Bikaner & Jaipur vacated the premises. Therefore, section 115 of Indian Evidence Act is not applicable upon the defendants as no CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 11/23 written permission was also taken from the defendants before installation of the said meter.
18. I have heard the submissions of counsel for the defendant and the counsel for the plaintiff. I have also gone through the entire case record meticulously with the kind assistance of both the counsels of the parties. After weighing the rival contentions and after appreciating the evidence adduced, my issue-wise findings are as below :-
Issue 1 Whether the plaintiffs are entitled to decree of permanent injunction against the defendants restraining them from removing or shifting the electricity meter from the place where it is installed? OPP.
19. The onus to proof this issue is upon the plaintiffs. By way of present suit, the plaintiffs have claimed that they are tenants in respect of property bearing no. G-73, Connaught Circus, New Delhi on first floor. It is the case of the plaintiffs that they have got an electricity meter installed in the tenanted premises. However, defendants are trying to remove the same for making an unauthorized entrance for the tenants/occupant of property bearing no. G-72. On the other hand, the basic contention of the defendant no. 2 to 4 is that the electricity meter has been installed on the wall of property bearing no. G-72 and the same is not a part of tenanted premises i.e. G-73. Defendants no. 2 to 4 have also claimed that there was a door in existence since inception on the wall of G-72, which was closed by earlier sub-tenant in the said property and now it is just that defendant wish to reopen the same.
CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 12/2320. Therefore, the first and foremost question here arises for consideration is whether the portion in which the electricity meter is installed is a part of tenanted premises or not.
21. In order to prove that wall on which the electricity meter is installed is a tenanted portion, plaintiffs have placed on record site plan mark PW1/1, original of which was never produced before the court nor the same was ever proved otherwise in accordance with the provision of Indian Evidence Act. Thus, at the outset, plaintiffs have failed to prove the site plan filed by them along with the present suit. On the other hand, the defendants have confronted plaintiff no. 2 who was examined as PW1 with site plan of property bearing no. G-73, which was admitted by the witness and thereafter the same was exhibited as Ex.PW1/D1. PW1 has also admitted that along with the registered lease deed dated 16.10.1990, a site plan showing demarcation of tenanted premises i.e. G-73 in red colour was prepared. Further, it is essential to reproduce the relevant portion of cross-examination of PW1 which reads as follows:-
Q. You have mentioned in para 4 of your plaint from point A to point A1 that the meter is installed at the west side of the wall at the first floor just opposite to the main entrance of the tenanted premises occupied by the plaintiffs. Is it correct? Ans. It is correct.
Q. Is it correct that the meter is installed on the wall opposite to G-73 entrance door? Ans. Yes.
Q. I put it to you that the meter is installed on the CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 13/23 back wall of G-72, Connaught Circus, New Delhi in which plaintiffs have no tenancy right or any other right?
Ans. The meter might be installed on the common wall of G-72 and G-73 towards the premises of G-73.
Q. Is it correct that there is distance of more than 5-7 ft. between the door i.e. point B shown in Ex.PW1/D2 and point D shown in Ex.PW1/D2? Ans. It is correct.
22. Perusal of the above statements made by PW1 in cross- examination shows that plaintiff no.2 has himself admitted that the wall on which the electricity meter is installed is not a tenanted portion and is rather installed on the wall opposite to entrance of property bearing no. G-73.
23. Further, plaintiff has also admitted in his cross-examination that there is a distance of more than 5 to 7 feet between the door at point B in photographs Ex.PW1/D2 and Point D in Ex.PW1/D2. The witness has also admitted after going through the photographs Ex.PW1/D2 that entrance of G-73 is at point B and plaintiffs have nothing to do with G-72. To one of the question asked by the defendants in cross- examination, PW1 has answered that "there is an apprehension of opening of entrance of G-72 if the meter is shifted to tenanted premises", which clearly suggest that plaintiff was aware that the portion on which meter is installed does not form part of the tenanted portion.
24. At this stage, it is also essential to reproduce the relevant CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 14/23 portion of the plaint which reads as follows :-
"4. That the plaintiffs had applied for an electricity connection for the tenanted premises with the defendant no. 1 and an electricity connection was sanctioned by the defendant no. 1 to the plaintiffs since around inception of the Lease Deed. It is submitted that at present, Meter Type & No. CTPT/PE 11541with CA No. 4379120974 and No. K79365 A is installed at the West side of the wall at the First Floor just opposite to the Main Entrance of the tenanted premises occupied by the Plaintiffs."
25. The said averment in the plaint also goes on to suggest that plaintiffs were well aware that meter was installed opposite to entrance of tenanted premises occupied by them. Moreover, from the perusal of photographs Ex.PW1/D2, it is clear that in the inner portion of G-72 there is a door on the one side, outer portion of which is converted into wall on which the said meter is installed. The said wall which is admittedly opposite to the suit property can in no way be treated as a part of the tenanted premises in occupation of the plaintiffs. Not even a single suggestion has been put by the plaintiff to the defendants witnesses that the photographs Ex.PW1/D2 are forged and fabricated. Thus, the photographs Ex.PW1/D2 stands duly proved.
CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 15/2326. Therefore, the wall on which the meter is installed can clearly be held as not a part of tenanted premises i.e. property bearing no. G-73.
27. Plaintiffs have further failed to mention the date on which the said meter was installed on the wall and whether any permission was sought for the same from the defendants being the landlord. At this stage, it is relevant to reproduce clause (l) of admitted lease deed dated 16.10.1990 which reads as follows :-
(l) That the TENANT/SUB-TENANT shall not in any way occupy any other portion of the property owned by the LANDLORDS. The TENANT/SUB-
TENANT shall not in any way block, obstruct or create hindrance in the staircases or the ground floor Court-yard and shall not cause any obstruction nor shall they be entitled to place thereon any goods, cargo, articles belonging to the TENANT/SUB-TENANT.
28. Bare perusal of the above clause shows that plaintiffs being the tenant was not supposed to occupy any other portion of the property besides the tenanted portion and the act of the plaintiffs is clearly contrary to the terms of the lease deed.
29. Defendant no. 2 to 4 have also disclosed that premises no. G- 72 was under the sub-tenancy of the State Bank of Bikaner and Jaipur with effect from 09.07.1987 and the sub-tenant temporarily closed the back door/gate of G-72 by erecting a wall over the door for safety norms as per the RBI Guidelines. The defendants have also placed on record the copy of judgment and order dated 31.08.2012 passed by Hon'ble High Court of Delhi vide which the said premises was vacated CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 16/23 by the State Bank of Bikaner and Jaipur and thereafter the possession of the said premises came to the defendants. Defendants no. 2 to 4 have also submitted that the said premises bearing no. G-72 has now been leased out to a person namely Priyank Sukhija, who is in the process of renovating the premises for opening of restaurant and as per the Delhi Building bye-laws relating to fire safety norms and Delhi Fire Service Act and Rules, minimum two exit/fire exits are mandatory required to be provided in places which are covered in assembly building. For the said purpose, defendant no. 2 vide a registered letter dated 14.02.2013 addressed to defendant no. 1/NDMC requested all the concerned persons for shifting the meter in question from the present location to any suitable location on the wall of G-73 as the location where the meter of plaintiff is installed is in fact the fire exit of premises no. G-72 and the same is required to be again opened. The copy of the said letter has been duly proved by the defendants as Ex.DW1/4 (OSR). Plaintiffs have never disputed the said letter at any point of time and thus the said letter stands proved.
30. Further, even as per the building bye-laws 6.4.1, defendants no. 2 to 4 are well within their rights to reopen the door as the plaintiffs being the tenants of property no. G-73 does not have any right over the walls or portion forming part of property bearing no. G-72.
31. Plaintiffs in support of their case have also examined PW2, who has also deposed that electricity meter is installed on the back side wall of G-72 and plaintiffs have never taken any written permission from the defendant for the installation of the electricity meter at the place where it is presently installed. Defendants have also examined an independent witness DW2 from the State Bank of Bikaner & Jaipur, CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 17/23 who has also deposed that there was a door on the back side of property bearing no. G-72, which was closed by the bank for safety purposes, which further fortifies the contentions of the defendants.
32. Plaintiffs have also contended that as per the status report filed by the NDMC i.e. defendant no. 1 in the present case, there was no door on the wall as alleged by the defendant no. 2 to 4. However, none of the reports of NDMC have been proved on record either by defendant no. 1 or by plaintiffs. Thus, none of the status report filed by NDMC can be read in evidence.
33. Plaintiffs have further failed to prove in any manner that they have any right or interest in portion/wall on which the electricity meter is installed as the same forms part of property bearing no. G-72. Thus, no injunction order can be passed against the defendant no. 2 to 4, who are the landlords of the suit property.
34. Thus, this issue is decided against the plaintiff and in favour of defendants.
Issue No. 3.
Whether the plaintiffs have not approached the court with clean hand and are guilty of concealing the material facts? OPD.
35. The onus to prove this issue is upon the defendants. Defendants have contended that plaintiffs are guilty of suppressing material facts and have not approached the court with clean hands.
36. It is a matter of fact that plaintiff have filed the present suit for injunction initially only against defendant no. 1/NDMC for obtaining permanent injunction against removal of electricity meter, which now seems to be a deliberate act on the part of the plaintiffs in order to obtain order of the court at the back of the landlords, who were never CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 18/23 impleaded as party by the plaintiff.
37. Further, in para 1 of the plaint itself, plaintiffs have claimed that they are tenants in respect of property bearing no. G-73 on the first floor with roof rights and rights for the exclusive staircase approaching the first floor vide lease deed dated 16.10.1990. At this stage, it is relevant to quote clause l and m of the lease deed which reads as follows:-
(l) That the TENANT/SUB-TENANT shall not in any way occupy any other portion of the property owned by the LANDLORDS. The TENANT/SUB-
TENANT shall not in any way block, obstruct or create hindrance in the staircases or the ground floor Court-yard and shall not cause any obstruction nor shall they be entitled to place thereon any goods, cargo, articles belonging to the TENANT/SUB-TENANT.
(m) That the TENANT undertakes, agrees and assures the LANDLORDS that the LANDLORDS shall be entitled to make another floor/floors over and above the demised premises. The TENANTS herein, its sub-tenant(s) & Transferee(s) shall not raise any objection/obstruction whether legal or otherwise to the raising of other floor/floors.
38. Bare perusal of the above clauses shows the falsity of averments made by the plaintiffs in the plaint as the landlord/defendant no. 2 to 4 herein even had the right to make other floors above the suit property i.e. G-73 and plaintiffs have no right to CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 19/23 make any objection in raising of such floors. Thus, there cannot be any question of roof rights and rights of exclusive staircase.
39. Thus, these clauses of the lease deed clearly shows that plaintiffs have made false averments in the suit and has not approached the court with clean hands. Plaintiffs are, therefore, guilty of suppresio veri and suggestio falsi.
40. It is settled principle of law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which has bearing on the adjudication of the issues raised in the case. It is the duty of the party asking for an injunction to bring to the notice of the Court all facts material to the determination of his right to have injunction and it is not an excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. Where Plaintiff does not act debonairly and does not put every material facts before the Court, the Court is within its inherent power to refuse to grant him injunction, even though there might be facts upon which injunction might be granted. Conduct of the Plaintiff is very material in bringing the case and disclosing the facts before the Court. Plaintiff is required to make fullest possible disclosure of all material facts within his knowledge to the Court and if he does not make that fullest possible disclosure, he cannot obtain any advantage from the proceedings and is liable to be deprived of any advantage he might have already obtained by means of the order which has thus wrongly been obtained by him by concealment of material facts.
41. In the case of Champa Arora & Ors. vs. Shiv Lal Arora & Ors . 2001 VII AD (Delhi) 602, Hon'ble High Court of Delhi held as CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 20/23 under:
"It is a settled law that a person, who seeks equity, must come with clean hands. A litigant who suppresses a fact from the court, indeed looses the right to seek an equitable relief of ad interim injunction".
42. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. Clearly, if a party suppresses material facts from the court then the relief of injunction cannot be granted to that party.
43. Since in the present suit, plaintiffs have not approached the court with clean hands, they are not entitled for relief of injunction as claimed by them in the present suit. This issue is accordingly decided in favour of the defendants and against the plaintiffs.
Issue No. 2Whether the present suit is barred by provision of section 38, 41
(f), (l) & (j) of Specific Relief Act, 1963? OPD.
44. The onus to prove this issue is upon the defendants. Defendants have claimed in their written statement that present suit is barred by section 38 and section 41 (f) (i) and (j) of specific Relief Act, 1963. Though, defendants have addressed no arguments on this CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 21/23 issue, however, perusal of the above mentioned provisions shows that section 38 of Specific Relief Act, merely provide the condition in which perpetual injunction can be granted. Thus, there is no question of suit being barred by section 38 of Specific Relief Act.
45. Further, section 41(f) of Specific Relief Act, provides that injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. However, even the applicability of this provision to the fact of the present case is not made out.
46. Section 41 (j) Specific Relief Act provides that when plaintiff has no personal interest in the matter, then injunction cannot be granted. However, since admittedly the electricity meter in question in the present suit belongs to plaintiffs and the same was got installed by the plaintiffs only. Thus, it cannot be said that plaintiffs have no personal interest in the subject matter.
47. As far as section 41 (i) of specific Relief Act is concerned, at the outset it is relevant to quote the said provision, which reads as under :-
"41. Injunction when refused.-An injunction cannot be granted-
(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;"
48. Clearly, in view of my findings on issue no. 1 and 3, especially, issue no. 3, it is clear that plaintiffs have not approached the court with clean hands and thus they are not entitled for injunction as bar of CS No.56961/2016 Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 22/23 section 41(i) of Specific Relief Act applies to the present suit. Therefore, present suit is barred by section 41 (i) of Specific Relief Act, 1963. This issue is decided accordingly.
Relief
49. In view of the above discussion, present suit is liable to be dismissed with cost of Rs.20,000/- to be paid to the defendants no. 2 to 4. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open Court (Nupur Gupta)
on 11.01.2019 Civil Judge-I, New Delhi District
New Delhi
The judgment contains pages 1 to 23
all checked and signed by me.
CS No.56961/2016
Pawan Chawla & Anr. vs. The New Delhi Municipal Council & Ors. Page No. 23/23