Delhi High Court
Asha Rani Gupta vs Rajender Kumar & Ors. on 3 September, 2012
Author: V.K. Jain
Bench: V.K.Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 29.08.2012
Judgment pronounced on: 03.09.2012
+ CS(OS) 288/2012
ASHA RANI GUPTA ..... Plaintiff
Through: Mr.Sandeep Sethi, Sr. Advocate with
Mr.Jeewash nagrath, Mr.Vijayendra
Kumar and Mr.Dhruv Kapoor, Advs.
versus
RAJENDER KUMAR & ORS ..... Defendants
Through: Mr.S.K.Sharma, Mr.Hari Shanker and
Mr.Shivshanker Panicker, Advocates
for Defendant No.1.
Mr.Arun Vohra, Advocate for
Defendant No. 2
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
V.K. JAIN, J.
IA No.2233/2012, IA No. 3383/2012 (O. 39 R. 1&2 CPC), and IA No.4380/2012 (O. 39 R. 4 CPC)
1. The plaintiff is the owner of property bearing No.7, Jorbagh Market, New Delhi. The aforesaid property is a commercial-cum-residential property and has two shops, two open spaces, a verandah and a toilet on the ground floor. One of the two shops, which is shown in red colour in the site plan filed by the plaintiff, was let out to the father of defendants 1 to 3, namely, late Shri Phool Chand, by CS(OS) 288/2012 Page 1 of 12 Shri Daulat Ram Gupta, father-in-law of the plaintiff at the rent of Rs 175/- per month. After about 2½ years, backyard/open space, shown in yellow colour, was also let out to him at the rent of Rs 85/- per month. The case of the plaintiff is that the common verandah and common toilet, which are shown in orange colour in the site plan, filed by the plaintiff were meant for common use of the occupants of both the shops on the ground floor as well as the occupants of the first floor. The other shop on the ground floor, which is shown in green colour in the site plan, was let out to Delhi Cloth Mills (DCM), which handed over the vacant possession of the same to the plaintiff on 30.05.2009.
2. It has been alleged in the plaint that on 30.04.2010, defendant No. 1 broke the backside wall of the open space in his occupation and placed a heavy dry- cleaning machine in the common verandah and also installed water treatment plant in the open space in his occupation and a complaint dated 30.04.2010, was lodged with the police in this regard. It has also been alleged that defendant No. 1, without permission of the plaintiff also built a wire cage on the ground floor which has height of about 15 feet and covers the first floor. It has also been alleged that recently in August, 2011 when the plaintiff renovated the shop shown in green colour in the site plan, it was discovered that defendant No. 1 had illegally closed the door abutting in the verandah and had also closed the doors of the toilet leading from the open space which is in possession of the plaintiff and has been shown in CS(OS) 288/2012 Page 2 of 12 purple colour in the site plan. Thereby, defendant No. 1 has locked the use of the toilet by the other occupants of ground floor and the occupants of the first floor. IA No. 2233/2012 was filed by the plaintiff, seeking interim relief, restraining the defendants from creating any hindrance in peaceful enjoyment of the common toilet and common verandah. A mandatory injunction has also been sought, directing the defendants to remove any hindrance in the peaceful enjoyment of the common toilet and common verandah shown in orange colour in the site plant. IA No. 3383/2012 has been filed by the plaintiff, seeking removal of the wall, alleged to have been built in the common area behind the door of the shop in green colour. Vide interim order dated 06.02.2012, this Court restrained the defendants from creating any hindrance in the physical enjoyment of the common toilet by the plaintiff and her access to the verandah. The defendants were directed to remove all hindrances so as to enable the plaintiff to have access and use the toilet. IA No.4380/2012 has been filed by the defendants seeking vacation of the interim order dated 06.02.2012.
3. The suit has been contested by defendant No. 1. It is alleged in the written statement that after about 2 ½ years of letting out of the shop shown in red colour, entire back portion which include verandah toilet and open space were let out to father of defendant No. 1 at the rent of Rs 85 per month and since then this is being used for shop of dry-cleaning with the verandah and open space is being used for CS(OS) 288/2012 Page 3 of 12 carrying out the process of dry-cleaning, ironing, etc. It is also alleged that though the user of DCM shop was having no right to use the toilet, the defendant occasionally permitted them to use the same by using the entrance through open space, marked in blue (purple) colour on humanitarian grounds keeping in mind cordial relations. It is further alleged that there is no opening from the shop shown in green colour towards the verandah and there was a brick wall from the toilet when verandah and open space was let out to the father of defendant No. 1 way back in the year 1959.
4. A perusal of the petition filed by late Shri Phool Chand in February, 1991, before Rent Controller, Delhi, under Section 27 of Delhi Rent Control Act would show that in para 1 of the petition, he claimed to be tenant in respect of one Dokhandi (two portions) bearing No. 7, Jorbagh Market, New Delhi, measuring 12 ft. X 14 ft. and 9ft. X 12ft. with common verandah and common lavatory. Thus, Shri Phool Chand himself claimed in this petition that that verandah and lavatory on the ground floor were meant for common use. A perusal of the another petition filed by late Shri Phool Chand in September, 1991 under Section 27 of Delhi Rent Control Act would show that same was the description of the tenancy premises given by him in para 1 of the petition. The averments made by late Shri Phool Chand, predecessor-in-interest of the defendants in the petition filed way back in the year 1991, totally belies the case of defendant No.1 that the whole of the back CS(OS) 288/2012 Page 4 of 12 portion, including verandah and toilet were included in the tenancy after about 2 ½ years of the first letting in the year 1957. Had that been so, late Shri Phool Chand would not have stated in the year 1991 that the toilet and verandah were meant for a common use.
5. It has been alleged in the written statement of defendant No. 1 that the above-referred pleadings were in an inadvertent error and mistake on the part of the counsel of the father of the defendant. This, however, cannot be accepted since there is no explanation as to how the alleged mistake came to occur not once, but twice.
I also notice that defendant No. 1 has not been able to consistent with respect to the use of the toilet on the ground floor by the employees of DCM. At one place, he says that they were not using the toilet, whereas at the other place, he says that they were permitted, on humanitarian grounds, to use the toilet, through the entrance from the open space which is shown in purple colour in the site plan. It is difficult to accept the contention that the employees of DCM were entering the toilet from the rear side of the building. This is more so when this is defendant's own case that there is a public toilet in front of the shop of the suit property. Instead, going to the back lane, entering the building from the rear side and then going to the toilet, the employees of DCM would have preferred to use the toilet in front of the building. To my mind, the use of the toilet on the ground floor by the CS(OS) 288/2012 Page 5 of 12 employees of DCM supports the case of the plaintiff that it was meant for common use of the occupants and that is why DCM employees were using the same.
6. The case of defendant No. 1 is that the brick wall in the verandah existed since the time when the verandah and open space were let out to his father way back in 1959. Admittedly, there is a door in the show shown in green colour in the site plan which opened in the verandah before the wall was constructed. Had the father-in-law of the plaintiff let out the verandah and toilet exclusively to the father of defendant No. 1, there was no need of erecting this wall. In the ordinary course of human conduct, walls are not erected in this manner, in the verandah of a premises.
7. For the reasons stated hereinabove, I am of the view that the plaintiff has been able to make out a strong prima facie case that the verandah and the toilet on the ground floor shown in orange colour in the site plan filed by the plaintiff were meant for common use and were never let out exclusively to the father of the defendants.
8. The next question which comes up for consideration is as to when the wall in the verandah was erected. As stated earlier, the case of defendant No. 1 is that the wall was erected by the father-in-law of the plaintiff way back in the year 1959. On the other hand, the case of the plaintiff is that though they had come to know of closing of the door of the shop shown in green colour, which abutted in the CS(OS) 288/2012 Page 6 of 12 verandah in August, 2011, while renovating the aforesaid shop. It was only during inspection by the Local Commissioner appointed by this Court that they came to know of the existence of the wall. This is also the case of the defendants that the verandah in question is being used by them for the purpose of dry-cleaning of shop clothes since the time it was let out to his father in the year 1959. Admittedly, there is a heavy dry-cleaning machine installed in the verandah. The case of the plaintiff is that it was on 30.04.2010 that defendant No. 1 broke the backside wall of the open space in his occupation and placed this heavy dry-cleaning machine in the verandah and water treatment plant in the open space occupied by him. Defendant No.1 has not placed on record any document such as invoice of purchase of the aforesaid heavy dry-cleaning machine to show that the machine was purchased prior to April, 2010. In fact, defendant No. 1 is not specific as regards the actual date on which this heavy dry-cleaning machine was installed by him in the verandah. The case set out by the plaintiff with respect to the date of installation of the dry-clean machine finds corroboration from the DD No. 14-A lodged by her with the police on 30.04.2010. Therefore, prima facie I would accept the case of the plaintiff that the aforesaid machine was installed only in April, 2010.
9. It was contended by the learned counsel for the defendant No. 1 that the plaintiff has not entitled to equitable relief of injunction since she did not disclose CS(OS) 288/2012 Page 7 of 12 in the plaint that a wall had been erected in the verandah and obtained an ex parte order, without disclosing to the Court that implementation of that order would require demolition of the wall erected in the verandah. As noted earlier, the case of the plaintiff is that she came to know about the existence of the wall only during the course of inspection by the Local Commissioner on 28.04.2012. The report of the Local Commissioner which visited the property in question on 28.04.2012, inter alia, reads as under:-
"There was a cupboard attached to one wall of the said verandah which appeared to be the back wall of the premises in occupation of the plaintiff. I asked one of the persons working there to remove the cupboard. On removing the cupboard I found that there was space for a door there which was plastered and the paint was also different from the paint on the remaining wall.
Thereafter, I visited the premises in the occupancy of the plaintiff and found that at the end of the premises, there was a door which seemed to be approximately of the same size as that of the cupboard on the portion of the defendants and at the same place.
The plaintiff had called a carpenter who broke open a part of the door from the side of the plaintiff and I noticed that the wall on the other side was not plastered from this end, showing that the wall was built from the side of the defendants. The wall did not look very old and it seemed that it was built only a couple of years back. However, I cannot state the correct age of the wall as I do not have the expertise to do so. But I can say with certainty that the wall was not very old."CS(OS) 288/2012 Page 8 of 12
10. The report of the Local Commissioner clearly shows that the wall in the verandah having been sealed by a cupboard, could not have been visible to the plaintiff. It was only by removing the cupboard that the Local Commissioner could find the wall, erection of which had prevented the entry of the plaintiff to the verandah through the door in the shop, shown in green colour in the site plan. It is important to note that the wall was found plastered only from the side of the verandah and had not been plastered from the side of the shop in possession of the plaintiff. Had the wall been erected by the owner/landlord of the building, there would have been no reason for him not to plaster it from the side of the shop shown in green colour. The fact that the wall was found plastered only from the side of the verandah clearly indicates that it was got erected by defendant No. 1 and that is why it could be plastered only from one side. The other side could not have been got plastered by him since that required access through the shop occupied by the plaintiff. The Local Commissioner also found that the paint on the space which had been plastered was different from the paint on the remaining wall. She also found that the wall did not look very old and could have been built only a couple of years back. Had the wall been such as 53 years old, as is claimed by defendant No. 1, the Local Commissioner would not have said that it did not look very old and seemed to have been built only couple of years ago. Therefore, I am unable to accept the contention that the plaintiff deliberately concealed the existence of the CS(OS) 288/2012 Page 9 of 12 wall erected in the verandah and, therefore, is not entitled to grant of the discretionary relief of injunction.
11. In Dorab Cawasji Warden vs. Coomi Sorab Warden, 1990 SCC (2) 117 JT 1990 (1) 199, Supreme Court inter alia observed and held as under with respect to grant of mandatory injunctions during pendency of the suit:-
"14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall CS(OS) 288/2012 Page 10 of 12 ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
12. Since the plaintiff has been able to make out a strong prima facie case, there is no reason why she should continue to suffer by not allowing her to have free access to the verandah and the toilet on the ground floor during pendency of the suit. The defendant No.1 cannot be allowed to continue to enjoy the fruits of his illegal act during the pendency of the suit. During the course of the arguments, I asked the learned counsel for the defendant No. 1 as to whether his client was ready to deposit Rs 1,00,000/- per month by way of a demand draft of FDR in the name of Registrar General of this Court and if defendant No. 1 was agreeable to do so, the Court may grant temporary mandatory injunction, but in the event of the suit being ultimately decided in favour of the plaintiff, the amount so deposited by defendant No. 1 would be paid to her. The learned counsel for the defendant No. 1, on instructions from defendant No. 1, declined to consent to this suggestion.
13. For the reasons stated in the preceding paragraphs, defendant No. 1 is directed to remove the wall erected in the verandah shown in orange colour in the site plan filed by the plaintiff within four weeks. He is also restrained from CS(OS) 288/2012 Page 11 of 12 creating any hindrance or obstruction in the use of the verandah and the toilet on the ground floor by the plaintiff and/or her family members and servants. Defendant No. 1 shall not put any lock on either of the two doors of the toilet. The lock, if any, put by the defendant No. 1 on the doors of the toilet would be removed forthwith. Defendant No. 1 shall also remove the heavy dry-cleaning machine and all other articles kept in the verandah within four weeks from today. The wooden racks got installed in the verandah shall also be removed by defendant No. 1 within four weeks. This is subject to the plaintiff filing an undertaking on affidavit, within one week, stating therein that in the event of the suit being dismissed, she would pay such amount as the Court directs, as compensation to defendant No.1 for the loss he suffers on account of not being able to put the verandah and the toilet to his exclusive use.
The applications stand disposed of in terms of this order. CS(OS) 288/2012 The parties to appear before the Joint Registrar for admission/denial of documents on 8.10.2012.
The matter be listed before the Court for framing of issues on 18.02.2013.
V.K.JAIN, J SEPTEMBER 03, 2012/BG CS(OS) 288/2012 Page 12 of 12