Delhi District Court
Abhay Singh vs Dileep Kumar And Anr on 2 March, 2024
IN THE COURT OF SH. DEEPAK VATS, ADDL. SENIOR CIVIL
JUDGECUM JUDGE SMALL CAUSE COURTCUM
GUARDIAN JUDGE, DISTRICT: SOUTH, NEW DELHI
CS SCJ 395/21
ABHAY SINGH,
S/o Late Shri Parshu Ram Singh,
R/o 122B/1B, First Floor,
Gautam Nagar,
New Delhi110049 ..........................PLAINTIFF
VERSUS
1. DILEEP KUMAR,
S/o Late Shri Parshu Ram Singh,
2. SEEMA
W/o Sh. Dileep Kumar,
Both are residing at
H. No. 122
R/o 122B/1B, Ground Floor,
Gautam Nagar,
New Delhi110049 .........................DEFENDANTS
Suit filed on - 13.04.2021
Judgment Reserved on - 21.02.2024
Date of decision - 02.03.2024
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT: Digitally signed by By this judgment I shall dispose of a suit for permanent and DEEPAK DEEPAK VATS VATS Date:
2024.03.02 15:54:13 +0530 CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. Page1 of 12 mandatory injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
PLEADINGS OF THE PLAINTIFF :
1. The brief facts of the case are that the plaintiff is a practicing Advocate in all district courts of Delhi and is residing with his mother at the address 122B/1B, First Floor, Gautam Nagar, New Delhi110049 (hereinafter referred to as suit property). It is averred that the defendant no.1 is elder brother and defendant no. 2 is sisterinlaw (Bhabhi) of the plaintiff who resides at ground floor of the suit property. It is alleged that on 12.12.2020, both the defendants intentionally and deliberately obstructed the way of the plaintiff and locked the main entrance gate of the suit property and illegally restrained him from entering the same. The plaintiff made a PCR call bearing reference no.2476334 at 09:49 PM. When police officials reached the spot, plaintiff informed them about the whole incident.
2. It is averred that the defendants have obstructed the stairs leading plaintiff's residence by putting metal box, 2 dustbins, large window frame, mops, water boring pipe, AC outdoor unit and by installing ropes to dry wet clothes.
Further that, on 12.12.2020, police official also told the defendants that they cannot obstruct the staircase and asked them to vacate the same but the defendants avoided the same for no reason or the other.
3. It is averred that after the police officials left the suit property, the defendant No.2 came aggressively towards the plaintiff and his mother and started abusing and threatening that if plaintiff files a written complaint against the defendants then she will falsely implicate the plaintiff in criminal cases. A Digitally signed by DEEPAK DEEPAK VATS CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr.
VATS Date:
2024.03.02 Page2 of 12 15:54:28 +0530 legal notice was issued by the plaintiff to the defendants to remove the obstruction. Despite service, the defendants failed to do the needful. Hence, the present suit has been filed seeking the following reliefs:
"a) Pass a decree in the nature of Permanent and Mandatory injunction in favour of the plaintiff and against the defendants;
b) Directing the defendants to remove the articles which are lying on the stair to obstruct the way of the plaintiff in property bearing no. 122B/1B, Gautam Nagar, New Delhi 110049."
4. WS OF DEFENDANTS Subsequently, WS was filed by the defendants in which certain preliminary objections were taken, namely, the present suit is not maintainable as the plaintiff being an advocate is taking advantage of his position, the plaintiff has not disclosed all the material facts, the plaintiff has not disclosed the fact of will/testament deposition by his grandfather; the plaintiff is not allowing the defendants to use toilet cum store room constructed on the roof top and punctured the water tank and changed the direction of Dish TV of the defendants and there is no cause of action in filing the present case as the same has been filed on self created grounds by making false statement.
5. It is contended that the plaintiff has himself violated the rights of the defendants. The allegations of obstruction in staircase has been denied and it is averred that the articles lying in the staircase do not create any hindrance. It is prayed that the suit be dismissed.
6. REPLICATION Replication was filed by the plaintiff to the WS of defendants, in which all the averments made in the WS were denied and those made in the plaint Digitally signed by DEEPAK DEEPAK VATS CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. VATS Date: Page3 of 12 2024.03.02 15:54:40 +0530 were reaffirmed.
7. ISSUES From the pleadings of the parties issues were framed on 11.11.2022 and they are as follows:
1. Whether plaintiff is entitled to decree of mandatory injunction for directing defendants to remove articles from staircase, which articles are obstructing way of the plaintiff, as prayed for in prayer clause (b)? OPP.
2. Whether present suit has been filed without any cause of action? OPD.
3. Whether plaintiff has not approached the court with clean hands and has suppressed material facts? OPD.
4. Relief.
8. PLAINTIFF'S EVIDENCE In support of his case, plaintiff got himself examined as PW1 and tendered his evidence affidavit as Ex. PW1/1. The witnesses reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under :
1. Ex. PW1/2 (OSR) (site plan of the suit property), 2. Ex. PW1/3 (OSR (colly.) (photographs of obstruction caused by defendants), 3.MarkPW1/4 (copy of complaint dated 13.12.2020), 4. Mark PW1/6 (message from post office regarding delivery of complaint) and 5. Mark PW1/7 (copy of legal notice dated 24.12.2020). The witness was crossexamined by Ld. counsel for the defendants.
9. DEFENDANT'S EVIDENCE In his defence, the defendant got himself examined as DW1 and tendered his evidence affidavit as Ex. DW1/A. The witness reiterated and Digitally signed by DEEPAK CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. DEEPAK VATS VATS Date:
Page4 of 12 2024.03.02 15:54:54 +0530 reaffirmed the facts mentioned in the written statement on oath. Certain documents were also exhibited which are as under :
1.Ex. DW1/1(colly) (OSR) (reply to the legal notice dated 10.01.2021 along with whatsApp screenshot and postal receipt), 2.Ex. DW1/2 (OSR) (copy of order sheet dated 11.12.2017), 3.Ex.DW1/3 (colly) (two photographs of shaft area of suit property), 4.Ex.DW1/4 (colly) (seven photographs of water tank of suit property) and 5.Ex.DW1/6 (certificate under Section 65B of Indian Evidence Act). The witness was crossexamined by Ld. counsel for the plaintiff.
10. Final arguments have been heard on behalf of plaintiff and the defendant and the pleadings as well as evidence and all the annexed & exhibited documents, record and written arguments have been carefully perused.
ISSUEWISE FINDINGS
11. ISSUE NO. (1)
1. Whether plaintiff is entitled to decree of mandatory injunction for directing defendants to remove articles from staircase, which articles are obstructing way of the plaintiff, as prayed for in prayer clause (b)? OPP.
12. Onus to prove this issue was upon the plaintiff. At the outset, it is apposite to discuss the law of mandatory injunction provided under Section 39 of the Specific Relief Act, 1963. Section 39 of the Specific Relief Act, 1963 reads as follows:
"39. Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent Digitally signed by DEEPAK DEEPAK VATS CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. VATS Date:
2024.03.02 Page5 of 12 15:55:03 +0530 the breach complained of, and also to compel performance of the requisite acts."
13. From the above reading of law, it is clear that the plaintiff shall be entitled to relief of mandatory injunction only if he proves that the articles belonging to the defendants are lying in the staircase and the said articles are obstructing the way of the plaintiff.
14. It is not disputed that the defendants reside on the ground floor of the suit property and the plaintiff resides on the first floor. Since the plaintiff resides on the first floor, the plaintiff has a right to have full access to the staircase leading to the first floor without any obstruction. Conversely the defendants have an obligation to not put any article in the staircase which could block the staircase. Thus, it is obvious that the plaintiff has a right to have access to staircase without any obstruction. Now, the question arises as to whether there is actually any obstruction in the staircase by articles belonging to the defendant. Ld. Predecessor of this court, vide order dated 04.12.2023 passed in connected application u/o 39 Rule 2 A CPC bearing no. Misc. SCJ 69/22, appointed Sh. Umashanker Panda, Advocate as Local Commissioner for inspection of the suit property. Ld. Local Commissioner filed a report on 15.01.2024 along with the photographs. The observation of Ld. Local Commissioner are as follows:
"4.On the visitation on the property undersigned observed/ find out that A. It is 3 floors building and entrance gate of the building towards Ground Floor is clear and easy to access the enter in the building /suit property. The photographs of the building/suit property and the entrance area are annexed herewith marked as Annexure3.1 and 3.2.
B. It is observed by the Local Commissioner that household articles/ other articles are lying at the common staircase leading from the Ground Floor Digitally signed by CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. DEEPAK Page6 of 12 DEEPAK VATS VATS Date:
2024.03.02 15:55:18 +0530 to First Floor of the suit property.
The list of the articles are as follows: i. One metal Box is attached with wall on the staircase (34 inchs width and 27inch length) only 39inch area is free on stair for access towards first floor;
ii. One metal Pipe iii. One large window frame (84inch width and 66 inch length), only 27inch area is free on stair for access towards first floor;
iv. One Air conditioner outer unit part is attached with up and side wall of the staircase (18 inches out from the wall);
v. One CCTV is attached on upside wall of staircase and meter boxes and electronics wires are attached with sidewall of the staircases."
15. The report of Ld. Local Commissioner itself explains that indeed a metal box, outdoor unit of an AC, a metal pipe, a large window frame and other articles are lying in the staircase of the suit property. The Ld. Local Commissioner has also filed photographs showing the articles. Ld. Local Commissioner has reported that metal box attached to the wall on the staircase is 34 inches wide and 27 inches long and the same has left only 39 inches space free on the staircase. Ld. Local Commissioner has further reported that large window frame is 84 inches wide and 66 inches long and the same has left only 27 inches space free on the staircase. Similarly, it is reported that the AC outdoor unit is protruding 18 inches out from the wall which is also limiting the access to the property of the plaintiff from the staircase in question. The inspection of the Ld. Local Commissioner was conducted in the presence of both the parties and no objections have been filed by either of the parties against the same. Digitally signed by DEEPAK VATS DEEPAK Date:
VATS 2024.03.02
15:55:36
+0530
16. Further, the defendant no. 1 has admitted in his cross examination that CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. Page7 of 12 the outdoor unit of AC and the window frame belongs to him. The defendant no. 1 has also admitted that one pipe lying in the staircase also belongs to him. Defendant no. 1 further admitted that a rope is tied in the staircase which is used to dry the cloths and the same belongs to him. The report of Ld. Local Commissioner and the admission of the defendant no. 1 as aforesaid clearly established that the defendants have obstructed the staircase and the same certainly affects the right of the plaintiff to have unimpeded access to the staircase and thus, the defendants are duty bound to remove all these articles from the staircase.
17. One thing that needs to be clarified here is that the articles mentioned in Sr. No. (v) of sub para B of para 4 of Ld. Local Commissioner report i.e. the CCTV camera, electricity meter boxes and the electricity wire are all attached to the side wall of the staircase and thus as such, in the opinion of this court, so long as they are attached to the wall they do not create any obstruction in the staircase and they need not to be removed from their place. Apart from the said articles mentioned at Sr. No. (v), the defendants are liable to remove all the articles mentioned in Sr. No. (i) to (iv) of subpara B of para 4 of the report of Ld. Local Commissioner.
18. Before proceeding further, the court deems it necessary to discuss some of the defenses taken by the defendants. The defendants have first of all stated that the plaintiff has himself not allowed the defendants to use the toilet cum storeroom constructed on roof top of the same and has caused damage to the water tank and Dish TV of the defendants. It is contended on behalf of defendants, that it is actually the plaintiff who has violated their rights and thus, the plaintiff is not entitled for any relief. This defence taken by the defendants is without any substance as, the allegations can be addressed only in a suit filed by Digitally signed by DEEPAK VATS DEEPAK Date:
VATS 2024.03.02
15:55:48
CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. Page8 of 12
+0530
the defendants and not in the present suit. So far as this suit is concerned, any misconduct by the plaintiff against the defendants in not allowing them to exercise their rights is not of much relevance and defence on this count is liable to fail.
19. The defendants have further stated in their written arguments that the suit property has been acquired by the plaintiff and the defendant no. 1 through Will of their grandfather late Shri Prabhu Nath Singh wherein "the basement and ground floor with all fittings and fixtures, connection etc was bequeath in favour of defendant no. 1 and first floor and second floor with roof thereon bequeathed in favour of the plaintiff."
20. It was argued on behalf of defendants that the defendant no. 1 had a right to keep the aforesaid articles in the staircase by virtue of the Will of their grandfather as the said fittings and fixtures were affixed during his lifetime. This defence of the defendants also does not hold much water for many reasons, first of them being that the defendants have not stated this in their WS. The defense on this count is beyond pleadings and thus is liable to be discarded. Secondly, for reasons best known to the defendants, the Will has not been placed on record. In the absence of the Will, no order can be passed in favour of the defendants and against the plaintiff. Thirdly, even if it is believed that the defendants were granted the fittings and fixtures through the Will, in the opinion of this court, the same only makes the defendant no.1 entitled to the fittings/ fixtures (particularly the outdoor unit of AC), the same does not at all give right to the defendants to obstruct/hinder the passage of plaintiff to his property. Accordingly, this defence is also inconsequential. Apart from the above defences, the defendants have not raised material defence which could result in dismissal of the case.
Digitally signed by DEEPAK VATS DEEPAK Date:
VATS 2024.03.02
15:56:15
+0530
CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. Page9 of 12
21. In the light of above discussion, it is held that the defendants are liable to remove their articles namely:
"i). One metal box is attached with wall on the staircase (34inches width and 27inch length), ii). One metal pipe, iii). One large window frame (4 inch width and 66 inch length), and iv). One Air conditioner outer unit attached with up and side wall of the staircase" from the staircase. The said articles be removed within one month from passing of this order. Accordingly, issue no.1 decided in favour of plaintiff and against the defendants.
22.ISSUE NO. 2.
2. Whether present suit has been filed without any cause of action? OPD.
23. Onus to prove this issue was upon the defendants. The defendants have not placed on record any cogent and strong evidence to prove this issue. Further, in issue no. 1, it has already been decided that the plaintiff has a right to get unhindered access to the staircase. Accordingly, there is a cause of action in favour of plaintiff and the present issue is decided against the defendants and in favour of plaintiff.
24. ISSUE NO. 3.
3. Whether plaintiff has not approached the court with clean hands and has suppressed material facts? OPD.
25. Onus to prove this issue was upon the defendants. It is argued on behalf of defendants that the plaintiff has not disclosed his own misconduct and material facts that he has not been allowing the defendants to exercise their own rights. It is further argued that the plaintiff has not disclosed the fact that the legal notice issued by the plaintiff was replied to by the defendants. DEEPAK VATS Digitally signed by CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. DEEPAK VATS Date: 2024.03.02 Page10 of 12 15:56:25 +0530
26. So far as nondisclosure of alleged misconduct by the plaintiff is concerned, as discussed earlier, same does not form part of cause of action of the present case and the defendants may file their own suit, if so advised.
27. Further, so far as the nondisclosure of Will is concerned, the defendants have also not placed on record the said Will. Also, in a suit for having unhindered access to staircase, the Will is not very material and its non disclosure, in the opinion of this court, does not go to the root of the matter.
28. So far as the nondisclosure of reply to the legal notice by the defendants is concerned, the same was indeed desirable, but not essential to the case of the plaintiff. All the plaintiff was required to aver and to prove was that he has a right and that the defendants have hampered his right. These facts have been averred and proved by the plaintiff and thus, it cannot be said that the plaintiff has not approached the court with clean hands and suppressed material facts. Accordingly, this issue is also decided against the defendants and in favour of plaintiff.
29. RELIEF In view of findings qua issue no. (i), (ii) and (iii), suit of the plaintiff is decreed and the defendants are directed to remove the articles which are lying on the staircase i.e. i) one metal box attached with wall on the staircase (34inches width and 27inch length), ii) one metal pipe, iii) one large window frame (4inch width and 66 inch length) and iv) one Air conditioner outer unit attached with up and side wall of the staircase from the staircase. The said articles be removed within one month from passing of this order. No order as to cost. Applications, if any, which are pending in the present judicial file Digitally signed by DEEPAK DEEPAK VATS CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr.VATS Date:
2024.03.02 Page11 of 12 15:56:35 +0530 and have not been pressed for by the parties are also disposed of as dismissed as not pressed.
Decree sheet be prepared accordingly. File be consigned to record Digitally room after completing the necessary formalities. signed by DEEPAK VATS DEEPAK Date:
Pronounced in the open VATS 2024.03.02
15:56:42
court on 02.03.2024. +0530
(DEEPAK VATS)
ASCJcumJSCCCUMG (South)
Saket Courts, New Delhi
CS CSJ 395/21 Abhay Singh vs. Dileep Kumar & Anr. Page12 of 12