Delhi District Court
Aman Nath vs Surendra Kumar Srivastava And Ors on 27 May, 2024
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IN THE COURT OF MS. NAVITA KUMARI BAGHA, DJ02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
MCA No.01/2024
CNR No. DLSE010003302024
Mr. Aman Nath
S/o Late Sh. Ashok Nath
R/o First Floor, 12 Jaipur Estate,
Nizamuddin East, New Delhi - 110013
............Appellant
Vs.
1. Mr. Surendra Kumar Srivastava
R/o Second Floor, 12 Jaipur Estate,
Nizamuddin East, New Delhi - 110013
2. Mrs. Ruchira Verma Srivastava
W/o Mr. Surendra Kumar Srivastava
R/o Second Floor, 12 Jaipur Estate,
Nizamuddin East, New Delhi - 110013
3. Mrs. Ananya Srivastava Chopra
W/o Mr. Parikshit Chopra
R/o Second Floor, 12 Jaipur Estate,
Nizamuddin East, New Delhi - 110013
............Respondents
First Appeal U/O.43 R.1 CPC against order dated 06.12.2023 passed by
Ms. Deepti Devesh, Ld. Senior Civil JudgecumRent Controller (South
East), Saket Court in Suit bearing number CS SCJ 69/2020 titled as
"Aman Nath Vs. Surendra Srivastava & Ors."
JUDGMENT
1. The present miscellaneous civil appeal has been filed by the appellant MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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(plaintiff in the suit bearing number CS SCJ 69/2020) against the order dated 06.12.2023 of Ms. Deepti Devesh, the then Ld. Senior Civil JudgecumRent Controller, SouthEast District, Saket Courts, New Delhi vide which the plaintiff's application U/O.39 R.1&2 CPC was dismissed.
2. The suit bearing number CS SCJ 69/2020 was filed by the Appellant/Plaintiff against the respondent no.1, 2 & 3 (defendant no.1, 2 & 3 in the suit) and Schindler India Pvt. Ltd. (defendant no.4 in the suit) on 14.01.2020 for Declaration, Permanent and Mandatory Injunction. But name of Schindler India Pvt. Ltd. was deleted from the array of parties vide order dated 03.08.2022. The brief facts of plaintiff's case as per the plaint are that he became owner of the First Floor of property bearing No.12, Jaipur Estate, Nizamuddin East, New Delhi110013 vide Sale Deed dated 02.02.2006, whereas the Second Floor of said property was purchased by one Mr. Francis Wacziarg vide Sale Deed dated 02.02.2006 and the defendant no.2 & 3 purchased the said Second Floor from Wacziarg Family Trust vide Sale Deed dated 13.12.2017; that as per the terms of the aforesaid sale deeds, the lift in the said building is for the common use of the owners/occupants of the 1st floor and 2nd floor only and the expenses MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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for running of said lift, such as salary of the liftman, periodical maintenance charges, electricity consumption charges, etc. shall be paid by them proportionately; that in December 2017 the defendant no.1, unbeknownst to plaintiff, entered into negotiations with Schindler India Pvt. Ltd. in order to unilaterally renew the AMC (Annual Maintenance Contract) of the lift and blocked all access to the common lift of plaintiff's property at first floor. Though the plaintiff and Mr. Francis Wacziarg (erstwhile owner of second floor) had been jointly paying AMC for the lift, but the defendants took the unilateral decision to install new and expensive biometric equipment and CCTV cameras inside the lift and entered into a new contract with Schindler India Pvt. Ltd. and despite repeated objections relating to unnecessarily beautification costs, the defendants imposed unreasonable cost of installation and upkeep of the lift on the plaintiff and installed expensive equipment; that on 21.10.2019 and 06.12.2019, the plaintiff underwent surgical procedure and medical procedure which required a great deal of postoperative care which made use of the lift an absolute necessity for him, but his access to lift has been blocked by the defendants which is illegal and against the settled terms of the Sale Deeds dated 02.02.2006.
MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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3. After service of summons, joint Written Statement was filed by the defendants no.1, 2 & 3 on 06.11.2020, wherein they submitted that the defendants had purchased the property from Wacziarg Family Trust through Sale Deed dated 12.12.2017 and the lift was defunct and not functional at the time of purchasing property and the erstwhile owners of the second floor informed the defendants that since they were not residing in the property and the plaintiff was not using the lift, so, the AMC of the lift was not renewed and the lift was defunct; that in order to know the viability of operating the lift, the defendants discussed the issue with the plaintiff and the plaintiff informed them that neither he was using the lift nor intending to use it in future and therefore, he was not willing to share the expenses for its repair and maintenance; that in pursuant to plaintiff's said representation, the defendants decided to undertake repair and maintenance of the lift solely at their own expense; that since the lift opens directly inside the property on the Second Floor, therefore in order to safeguard themselves, the defendants installed biometric security system in the lift to ensure that only people with access can operate the lift; that the sale deed in favour of plaintiff categorically provides that owners of first floor and second floor will jointly share the expenses for running the lift, but the MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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plaintiff did not contribute anything towards the repair and maintenance of the lift; that since the plaintiff himself waived off his right to use the lift and represented to the defendants that he did not wish to use the lift, therefore, now he is estopped from saying that the defendants are infringing his right to use the lift and has now lost his right to use the lift at this stage.
4. The plaintiff had filed an application U/O.39 R.1&2 CPC alongwith the Plaint. But later on, another application U/O.39 R.1&2 CPC was filed by plaintiff on 15.05.2023 with the prayer to restrain the defendants no.1, 2 & 3 from blocking plaintiff's access to the lift. However, it is pertinent to mention here that no such prayer was made in the earlier application which was filed U/O.39 R.1&2 CPC alongwith the plaint. The said application, which was filed with the plaint, was withdrawn by plaintiff's counsel on 16.05.2023. The other application, filed on 15.05.2023, has been dismissed vide impugned order dated 06.12.2023. The present appeal has been filed by the appellant/plaintiff against the said order.
5. The main grounds of appeal are as follows:
(i) That the impugned order is premised on the incorrect MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors. Page 6 of 38
presumption that "a new and extremely expensive lift" was installed in the building by Respondent no.1, whereas no new lift has been installed by the Respondents and thus the Ld. Senior Civil JudgecumRent Controller has erroneously misconstrued the facts of the present case.
(ii) That the Respondents had categorically admitted in their Written Statement the fact of common ownership of Appellant and Respondents over the lift as per the Sale Deeds and therefore, the Appellant's access to the lift could not have been prevented on account of noncontribution towards the AMC charges for prior periods during which the Respondents had exclusively utilized the lift and that the impugned order has been passed without application of mind which divests the Appellant's right to use the lift, contrary to the terms of Sale Deed dated 02.02.2006.
(iii) That the Ld. Senior Civil JudgecumRent Controller has failed to appreciate that the appellant had offered to pay the maintenance and other charges and therefore, his access to the lift could not have been restrained.
MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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(iv) That the impugned order fails to appreciate the medical condition of the Appellant and the fact that he had undergone a surgery in 2019 which necessitated the need for the use of lift. The emails exchanged between the parties in 2017, in the light of change in circumstances/medical condition of the Appellant, have been erroneously relied upon.
(v) That the Ld. Trial Court has erred in interpretating the email dated 07.02.2017 which was exchanged between the Appellant and son of Late Mr. Francis Wacziarg. The Appellant at no point of time has waived off his right to use the lift in question as has been incorrectly sought to be interpretated by relying on the said email.
6. Notice of the Appeal was issued to the respondents and after service of notice, the respondents filed their joint reply on 03.02.2024. The brief facts as stated in the reply are as follows:
(i) That the appellant is attempting to obtain all the "final reliefs" at the preliminary or interim stage of the suit proceedings and wants to render final hearing and disposal of the suit redundant by short circuiting the whole process.
MCA No.01/2024
Aman Nath Vs. Surendra Srivastava & Ors.
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(ii) That the Ld. Senior Civil Judge has not erroneously presumed that the new and expensive lift was installed as it is the admitted case of the Appellant that he had not paid any repair or maintenance charges after the year 2015 and the respondents had to carry out refurbishment activities and exclusively get the repair and maintenance of the lift done at their expenses and only after the efforts of the respondents in getting the lift repaired and functional, the lift is being termed as new and expensive.
(iii) It is denied that the appellant's access to lift could not have been prevented on account of noncontribution to the AMC and their repair charges as the right to access the suit property is contingent upon the sale deeds of the parties through which the rights of the parties emanate. The terms of the sale deed of the Appellant explicitly state that the expenses of the operation of lift, including the liftman's salary, periodic maintenance charges, electricity charges, etc. are to be paid by the parties proportionately. Also, during the course of the arguments, the appellant's counsel had explicitly stated that he was not liable to pay his share for the expenses borne by the respondents but MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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only liable to pay the future AMC costs, which evinces the malafide of the appellant that he now wishes to access the lift after the hardwork and efforts taken by the respondents to repair and maintain it for almost 7 years.
(iv) That the respondents have not only paid the expenses towards the AMC of the lift but also repair charges to get the lift functional and then to be continued to be functional and also charges for the biometric lock for their safety against the usage of the lift by any third party. The appellant has resorted to making baseless allegations against the respondents when he himself had not paid even a single rupee towards the repair and maintenance of lift since the year 2017. The respondents have paid so far, a sum of Rs.10,18,377/ as of November 2023 towards the repair and maintenance of the suit property including AMC.
(v) It is denied that there has been any change in the circumstances which has been erroneously relied upon by the Ld. Senior Civil Judge. The medical records produced by the Appellant pertain to the period starting from 2015 to 2019 and MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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till date no new medical records have been produced to demonstrate any form of medical emergency. The appellant has admittedly placed on record his medical records dating back to 2015 and 2016 and admittedly not renewing the AMC in 2017 is sufficient ground warranting the dismissal of the appellant's application filed U/O.39 R.1 & 2 CPC.
(vi) That the Appellant is guilty of "supperssio veri" and "suggestio falsi". That the lift in question opens directly inside the Respondents' flat on the 2 nd floor. That before acquiring the right, title and interest in the 2 nd floor, and during due diligence and investigation for the title, the defendants/respondents had observed that the lift in question was lying in an unused and completely neglected state and was not usable unless expenditure of a large amount was incurred to make it usable or operational and ensuring safety & security from trespassing of 2nd floor particularly due to a direct entry from the lift and therefore, in order to know the viability of operating the lift, the defendants/respondents repeatedly contacted the Appellant and discussed the issue. It was pursuant to the Appellant's representation that he was not interested in using the lift or MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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bearing expenses for its repair and maintenance that the Respondents undertook the necessary steps to ensure that repair work of the lift commences, and it becomes functional.
(vii) That it was based on the representations made by the Appellant to Mr. Romain Wacziarg (son of erstwhile owner of 2nd floor) in his email dated 07.02.2017 as well as to Respondent No.1 in the meeting between the said Respondent and the Appellant in Mumbai on 05.10.2017 that the Respondents were made to believe that the Appellant was neither using nor intending to use the lift in future, and therefore, he would not contribute for its repair and maintenance. The Respondent, in the email dated 04.11.2017 and letter dated 06.11.2017, shared quotations for renovation of the lift with the Appellant. In the said email and letter, Respondent No.1 had categorically stated that though, the Appellant had informed him during their meeting in Mumbai that "he neither uses nor intends to use the lift in future and therefore, does not wish to share the expenses for the same", but in case he had changed his mind, he should let the respondents know about it, otherwise they would take over the MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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entire lift and mange and maintain it accordingly for their use for the second floor. But despite receipt of the aforesaid email and letter by the Appellant, neither any reply was given by him nor any objections were raised by him with reference to repair and maintenance of the lift being undertaken by the Respondents exclusively.
(viii) That the Respondents have incurred expenses for repair of the lift as the lift was defunct and not functional, when the answering respondents purchased the property and they entered into a fresh AMC for maintenance of the lift for the year 20182024. That the defendants/respondents spent a large sum of money in repairing, reviving and maintaining the lift. It is at this stage that, all of a sudden, the Appellant has become aware of his alleged rights in the said lift, but his conduct is such that he wants to enrich himself unjustly at the cost of the defendants/respondents.
(ix) That the Appellant had filed 2 separate applications under the same provisions i.e. Order 39 R.1&2 of CPC. However, the malafide of the Appellant in approaching this Court with unclean MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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hands is clearly made out by the bare perusal of the reliefs sought in his multiple applications as he had not initially sought access to the lift and had rather sought reliefs to the effect of taking away the right of the respondents in accessing and maintaining the lift, despite his admitted case of not spending a single penny on the repair, maintenance and upkeep of the lift since the year 2017. The appellant has failed to give any plausible explanation as to why he did not argue his applications for interim relief before the Ld. Senior Civil Judge for almost 3 years, if the appellant was prejudiced by not getting access to the lift in question. It has been stated that the appellant resides at the ground of A51, Nizamuddin East, New Delhi.
(x) That the Respondents had only acted pursuant to the representations of the Appellant that he neither uses nor intending to use the lift in future. The Appellant cannot challenge the amounts paid by the Respondents towards the lift in question as much as it is the admitted case of the Appellant that he has not paid a single penny qua the repair and maintenance of the lift since 2015 and today when the default MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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of the Appellant is almost 9 years, he has miserably failed to establish not only a primafacie case, but his case is also malicious on the face of record.
7. Rejoinder to reply of Respondents has been filed by the Appellant on 10.05.2024, wherein he has denied that the construction of the 2 nd floor is such that the lift opens directly inside the flat on the 2 nd floor. He stated that he and Late Mr. Francis Wacziarg (erstwhile owner of 2nd floor) had entered into an agreement to share the expenses for the maintenance and upkeep of the lift on alternate year basis and in terms of the said understanding one party paid for the annual maintenance of the lift for one year and the other party used to pay the same for the next year and as the AMC charges for the period 2016 2017 were paid by him, therefore, the AMC charges for the period 20172018 were to be borne by Mr. Romain Wacziarg (son of Late Mr. Francis Wacziarg, erstwhile owner of 2 nd floor). He further stated that as he was not particularly using the lift at the said point of time and used to spend more time in his other residence at Ground Floor, A51, Nizamuddin East, and Mr. Romain Wacziarg was not residing in the premises, he enquired from Mr. Romain Wacziarg vide email dated 07.02.2017 as to whether the AMC should be renewed and in MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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response to his email, Mr. Romain Wacziarg responded that there was no requirement to renew the AMC and a decision on the same could be taken at a later point of time if required. He stated that there was no mention whatsoever of relinquishing any future right over the lift by the appellant. He further stated that in December, 2019, he underwent surgery and since there was urgent requirement of using the lift, he was left with no option but to file suit CS SCJ 69/20 titled as "Aman Nath Vs. Surender Srivastava & Ors." and moved application U/O.39 R.1&2 CPC.
8. I have heard the arguments on appeal from counsel Sh. Ashish Verma for appellant and counsel Sh. Indranil Ghosh for respondents. I have perused the record also.
9. One of the grounds of appeal is that the Ld. Trial Court has erroneously misconstrued the facts of the case. The counsel for Appellant/Plaintiff has argued that the Ld. Trial Court has held that 'a new and extremely expensive lift' was installed in the building by Respondent no.1, whereas neither any new lift has been installed by the Respondents nor there is any 'ultra hitech' lift installed by them, as mentioned in para 11 (page 8) of impugned order and hence the MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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same is factually incorrect. The counsel for Appellant/Plaintiff has argued that it is neither the case of the plaintiff nor of the defendants that a new lift was installed, but the Ld. Trial Court has dismissed the application basically on the premise that the new lift was installed by the respondents. However, it is pertinent to mention here that the plaintiff/appellant has himself mentioned in para 16 of his plaint that the defendants took unilateral decision to install new and expensive biometric equipment and CCTV cameras inside the lift and imposed unreasonable cost of installation and upkeep of the lift on the plaintiff. It is also pertinent to mention here that in 'para VI of Grounds' mentioned in the plaint, the plaintiff has categorically stated that "That the cause of action also arose when the Defendants usurped the common lift and engaged into a contract with Schindler's India Pvt. Ltd. to replace the existing lift and oust the Plaintiff, his family and visitors from its usage". The cumulative effect of the aforesaid averments made by the plaintiff/appellant certainly gives the impression that the earlier lift was replaced with the new lift. The word 'new' used in the impugned order clearly indicates that it was a repaired and refurbished lift. But the Appellant/Plaintiff is unnecessarily stretching it and just wasting the time by beating around the bush and MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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unnecessarily overemphasizing it. So far as the use of words 'ultra hi tech' in para 11 (page 8) of impugned order, is concerned, it is pertinent to mention here that the Ld. Trial Court has mentioned the said words in reference to submission made by the counsel for plaintiff during arguments before the Ld. Trial Court. It would be relevant to reproduce the said portion of impugned order here which is as follows:
"During the course of arguments, the counsel for plaintiff had stated that the plaintiff is ready and willing to make payment of the cost for maintenance and upkeep, electricity consumption, etc. of the suit property, proportionate to his share as per registered sale deed dated 02.02.2006, but the defendants have unilaterally decided to install an ultra hitech lift as per their own whims and fancies, which was not necessary and therefore, the plaintiff cannot be expected to make payment of inflated and unnecessary cost incurred in installing and maintaining the suit property due to unilateral decisions of the defendants."
MCA No.01/2024
Aman Nath Vs. Surendra Srivastava & Ors.
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10. Thus, it is very much clear that the words 'ultra hitech' were used by the counsel for plaintiff and it is not the finding/observation of the Ld. Trial Court. It is pertinent to mention here that the Counsel of Appellant/Plaintiff, who has filed the present appeal and addressed arguments before this Court, was not the counsel of plaintiff who had addressed arguments before the Ld. Trial Court and made the aforesaid submission. Thus, the counsel for Appellant could not dispute the authenticity of the aforesaid statement as he was not present there at that time. There is neither any pleading to this effect that no such submission was made by plaintiff's counsel before the Ld. Trial Court nor there is any affidavit of the previous counsel denying the making of said submission. Thus, the arguments of the counsel for Appellant/Plaintiff on this point is worthless. Hence, it is held that the Ld. Trial Court has neither misconstrued the facts of the case nor the impugned order is factually incorrect.
11. The next contention of counsel for Appellant/Plaintiff and next ground of appeal is that when the Respondents have admitted the Appellant's ownership of the lift and his right to use the same, then his access to the lift could not have been prevented on account of noncontribution towards the AMC charges for prior periods during which the MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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Respondents had exclusively utilized the lift. He has further argued that though the Respondents have categorically admitted the fact of common ownership of Appellant and Respondents over the lift as per the Sale Deeds, but the impugned order has been passed without application of mind and contrary to the terms of Sale Deed dated 02.02.2006. But even this contention is devoid of merits as it has been rightly observed by the Ld. Trial Court that the right to access and use the lift in question is subject to fulfilment of the condition of bearing proportionate cost of maintenance and upkeep of the lift, which is also flowing from the same Sale Deed, but the plaintiff wants the right to access and use the lift without fulfilling the natural and corollary duty of bearing the cost of maintenance and upkeep as well as usage charges in terms of electricity consumption, etc. The relevant portion of Sale Deed dated 02.02.2006 in favour of Appellant/Plaintiff in this regard is as follows:
"That the Confirming Party has provided a Lift, in the said building for the common use of the owners/occupants of the First Floor and the Second Floor only of the said property and the expenses for the running of the said Lift, such as salary of the MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors. Page 20 of 38
liftman, periodical maintenance charges, electricity consumption charges, etc. shall be paid by them, proportionately."
12. Thus, it is clear from the contents of the Sale Deed itself that the Appellant/Plaintiff was duty bound to pay the expenses viz. salary of the liftman, maintenance charges, electricity consumption charges, etc. But it is the admitted case of the Appellant/Plaintiff that he has not paid any maintenance charges since the year 2017. The Defendants have categorically stated in their Written Statement that no electricity charges have been paid by the plaintiff of the lift and common areas. Though the Plaintiff has denied the same in his Replication, but neither he has specified as to on which date the payment of electricity charges was made by him nor he has placed on record any document to prove the same. Thus, his denial is just a bare and evasive denial, which appears to have been made only for the heck of making it. The case of Appellant/Plaintiff appears to be full of lies. On the one hand, he has stated that he and Mr. Francis Wacziarg (erstwhile owner of 2 nd floor) had entered into an agreement to bear the expenses of the maintenance and upkeep of the lift every alternate year and as per the said agreement, he had paid the AMC charges for the period 2016 MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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2017 and the AMC charges for the period 20172018 were to be borne by the owner of second floor, but on the other hand, he has stated that Mr. Francis Wacziarg died in the year 2014 and the aforesaid agreement was communicated to his son Romain Wacziarg vide email dated 07.02.2017. Thus, it is clear that Mr. Francis Wacziarg had died in the year 2014 and his son Romain Wacziarg was not aware of the aforesaid agreement and hence, no maintenance of the lift was carried out by the owners of the second floor after the death of Mr. Francis Wacziarg in the year 2014. It is Appellant's/Plaintiff's own case that he was not using the lift at that time as he used to reside in his other residence situated at Ground Floor, A51, Nizamuddin East, New Delhi. Thus, when he was not residing in the property bearing no. 12 Jaipur Estate, Nizamuddin East and not using the lift also during that period, so where was the need for him to pay the AMC charges for the period 20162017 ! Moreover, as per the alleged agreement between him and erstwhile owner of second floor, the maintenance charges were to be borne on alternate year and when no maintenance charges were paid by the owner of second floor after the death of Mr. Francis Wacziarg in 2014, then it is really difficult to believe that the Appellant/Plaintiff paid the AMC charges for the period 20162017, MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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especially when he was not even using the lift at that time. It is also not out of place to mention here that he has not placed on record any documentary proof of making payment of said charges. Thus, it appears that no maintenance charges have been paid by the Appellant/Plaintiff since 2014 and if any paid, then it is a matter of trial. However, it is the admitted case of the Appellant/Plaintiff that he has not paid any maintenance charges from the year 2017. Therefore, as the Appellant/Plaintiff has neither paid maintenance charges nor the electricity charges nor even the refurbishment charges, the Ld. Trial Court has rightly held that the right to access and use the lift is subject to the fulfilment of conditions mentioned in the Sale Deed, but the plaintiff intends to assert his right without performing his duty to fulfil the said conditions.
13. The next contention and ground of appeal is that the Ld. Senior Civil JudgecumRent Controller has failed to appreciate that the appellant had offered to pay the maintenance and other charges and therefore, his access to the lift could not have been restrained. But this contention does not hold any water in view of the observation made in para 10 of this order. It is clear from the reproduced portion of impugned order in para 9 (of this order) that though the counsel for MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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plaintiff had made offer to pay, but in the very next line he refused to do so by stating that the plaintiff could not be expected to make payment of inflated and unnecessary cost incurred by defendants in unilaterally installing ultra hitech lift. As already held in para 10 (of this order), the said statement of counsel for plaintiff has not been refuted by the Appellant/Plaintiff.
14. The next ground of appeal is that the impugned order fails to appreciate the medical condition of the Appellant and the fact that he had undergone a surgery in 2019 which necessitated the need for the use of lift and the emails exchanged between the parties in 2017, in the light of change in circumstances/medical condition of the Appellant, have been erroneously relied upon. The counsel for Appellant/Plaintiff has argued that the Ld. Trial Court has erroneously relied upon the medical document of Appellant/Plaintiff of the year 2016 and ignored his medical documents of the year 2019. But the perusal of impugned order has made it clear that the Ld. Trial Court has not relied upon the document of 2016 only. It has also not ignored the other medical documents pertaining to the year 2019. Rather the Ld. Trial Court has simply stated that the medical documents filed by the plaintiff start from the year 2016 and it is vide email dated MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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07.02.2017 that the plaintiff has admitted that he was not using the lift and was not intending to use the lift in future and hence, the claim of the plaintiff that due to medical reasons, he should be provided access to lift is bogus as his medical ailment had started in the year 2016, but he himself decided in the year 2017 that he did not want to use the lift. There is nothing wrong and illegal in the findings of the Ld. Trial Court on this point as it is but natural to raise doubt about the claim of plaintiff that if he was not medically well, then why he expressed his intention not to use the lift!
15. The contention of the counsel for Appellant/Plaintiff that the Ld. Trial Court has ignored the medical documents of the year 2019, also does not hold any water as the Ld. Trial Court has duly taken into consideration the said documents, but the only concern of the Ld. Trial Court was that the said documents were all predated the institution of the suit and the plaintiff has not explained anywhere as to why the need to access the lift has arisen now so urgently, when the medical ailment and its treatment were more than three years old !
16. Now, here it is pertinent to mention that in the initial application filed by Plaintiff along with the plaint for seeking interim injunction U/O.39 MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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R.1&2 CPC, neither anything was mentioned relating to his medical issues nor even any prayer was made in the said application for seeking access of the plaintiff to the lift in question. Rather, the relief sought in the said application was to restrain the defendants from accessing the lift and making any alteration in the lift. It is also pertinent to mention here that no arguments were addressed by the plaintiff on his interim application despite grant of many opportunities and even imposition of cost. If there was really urgency in seeking interim relief, then why the application was not pressed for many years? It was only on 15.05.2023 that another application U/O.39 R.1&2 CPC was filed by plaintiff for seeking the relief of temporary injunction restraining the defendants from blocking his access to the lift. In the said application, he stated that "he has started to suffer from certain health problems, documentation qua which has already been annexed alongwith the plaint". Since, his medical documents were pertaining to the years 20162019, whereas the interim injunction application was filed on 15.05.2023 i.e. after more than three years and that too without giving any explanation, so, the Ld. Trial Court was right in holding that the plaintiff had nowhere explained as to why the MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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need to access the lift had arisen in the year 2023 so urgently, when the medical documents were more than three years old.
17. It will also not be out of place to mention here that it is the own admission of Appellant/Plaintiff in para 30 of his appeal that he was not using the lift in question in the year 2017 as at that time he used to reside in his other residence situated at Ground Floor, A51, Nizamuddin East, New Delhi. If he had a residence of ground floor at the aforesaid address, then where was the need for him to shift to first floor of 12, Jaipur Estate in the year 2019 during the period he had undergone surgery especially when there was no access to lift available with him at that time? Neither it is his case that he had sold the property i.e. Ground Floor, A51, Nizamuddin East nor he has explained the reason to shift to First Floor of 12, Jaipur Estate. He has also not explained about any urgency of interim relief in the year 2023, as his surgery was conducted more than three years back and at that time, he had not sought any interim relief to access the lift.
18. It is also one of the grounds of appeal that the Ld. Trial Court has erred in interpretating the email dated 07.02.2017 which was exchanged between the Appellant and son of Late Mr. Francis MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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Wacziarg. The counsel for Appellant/Plaintiff has argued that the Ld. Trial Court has misinterpreted the said email and held that the Appellant/Plaintiff has waived off his right to use the lift whereas the Appellant/Plaintiff at no point of time has waived off his right to use the lift in question. But I do not find any merit in his contention as the Ld. Trial Court has held that the intent of plaintiff not to use the lift can be inferred not only from email dated 07.02.2017, but also from the silence of plaintiff to the communications made by defendant no.1 vide email dated 04.11.2017 and letter dated 06.11.2017. In the email dated 07.02.2017, the Appellant/Plaintiff had categorically stated that he was not using the lift and it was not serving any purpose for him. In email dated 04.11.2017 and letter dated 06.11.2017, the defendant no.1 categorically wrote to the plaintiff that in their meeting in Mumbai, the plaintiff had stated that he was not using the lift and was also not wishing to use it even in future, but in case he had changed his mind, he should let them know. But no reply to said email or letter was given by the plaintiff, meaning thereby that he did not deny the fact that he had stated in his meeting with defendant no.1 at Mumbai that he was not using the lift and was also not wishing to use it even in MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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future. Thus, the inference drawn by the Ld. Trial Court is not at all erroneous.
19. It is worth mentioning here that the Appellant/Plaintiff is guilty of concealment of facts. The relief of injunction is an equitable relief. The equity demands that the party seeking such relief must act with utmost good faith and transparency. Honesty and full disclosure of facts are essential for a party to be entitled to equitable relief. Concealment of facts can disqualify a party from receiving equitable relief as equity operates on the principle of fairness and clean hands.
20. The case of the Appellant/Plaintiff, as per his plaint, is that in December 2017, the defendant no.1, unbeknownst to the plaintiff, entered into negotiations with Schinder India in order to unilaterally renew the AMC of the lift and blocked all access to the common lift of plaintiff's property. But the case of the Respondents/Defendants is that the lift was defunct and not functional at the time of purchasing of property and in order to know the viability of operating the lift, the defendants discussed the issue with the plaintiff and the plaintiff informed them that neither he was using the lift nor intending to use it in future and therefore, he was not willing to share the expenses for its MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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repair and maintenance and that in pursuant to plaintiff's said representation, the defendants decided to undertake repair and maintenance of the lift solely at their own expense. The following e mails/letter were exchanged between the parties:
(i) email dated 12.08.2017 - Vide this email, the defendant no.1 offered the plaintiff to discuss matters pertaining to electricity expenses, repairs, replacement, maintenance, etc. of the lift.
(ii) email dated 31.08.2017 - Vide this email, the defendant no.1 proposed to the plaintiff the MOU for the lift, etc.
(iii) email dated 31.10.2017 - Vide this email, the defendant no.1 sent the plaintiff copy of invoice from Schinder India for AMC of year 20152016 which was still unpaid.
(iv) email dated 04.11.2017 - Vide this email, the defendant no.1 sent to the plaintiff the estimates of expenses and quotations, of Schindler India Pvt. Ltd., for lift replacement including biometric system and power back system. In the said email, the defendant no.1 categorially mentioned that in their meeting at Mumbai, the Plaintiff had stated that he was not using the lift MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors. Page 30 of 38
and was also wishing not to use it even in future, but in case he had changed his mind, he should let them know and also how he would wish to contribute his share.
(v) Letter dated 06.11.2017 - Vide this letter also, the defendant no.1 categorially mentioned that in their meeting at Mumbai, the Plaintiff had stated that he was not using the lift and was also wishing not to use it even in future, but in case he had changed his mind, he should let them know and also how he would wish to contribute his share.
(vi) email dated 07.11.2017 - Vide this email, the defendant no.1 conveyed to the plaintiff that he was still awaiting for his response to email dated 04.11.2017.
(vii) email dated 08.11.2017 - Vide this email, the Manager of Neemrana Hotels (the plaintiff is stated to be partner of said hotel) informed the erstwhile owner of second floor that the lift renewal was not done for the year 20162017 as the plaintiff was not using it and Mr. Romain Wacziarg did not want to bear the expenses for the same.
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(viii) email dated 16.01.2018 - In the said email, the defendant no.1 wrote to the plaintiff - "As far as lift is concerned, your position that you do not wish to use the lift as you are only at first floor was recorded during our meeting in Mumbai and later through our correspondence. The current lift is old and you had stopped payment of Annual Maintenance Contract and the lift was lying idle in bad condition. Accordingly, we decided to pay 100% for and take over the lift as we are on the second floor and need the lift. We have planned a new lift with best of security features including biometrics. This will not allow you and your employees to come to our floors and we will not be allowed to go to your first floor. These security features are being provided as we are getting old and we want to secure ourselves and we are also planning to have security cameras to secure ourselves as well as our property from any trespassing, particularly keeping in view the Delhi crime rate. So far we have already invested Rs.1.5 Lakhs and another about Rs.18 Lakhs are in pine line with Rs.80 thousand annual maintenance contract thereafter. The final lift of Schindler make will be ready in next 8/10 months. If you wish to use the lift please deposit Rs.11 Lakhs advance being & towards 50% of your share to following bank account...."
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21. The Appellant/Plaintiff has not replied to any of the aforementioned e mails. It is worth mentioning here that all these emails were filed by the Appellant/Plaintiff alongwith the Plaint, meaning thereby that he has admitted the receipt of all these emails. But very clandestinely, he did not make even a whisper of said emails in his plaint. Rather, in the plaint, his stand throughout is that unbeknownst to him, the defendant no.1 entered into negotiations with Schinder India in December, 2017 in order to unilaterally renew the AMC of the lift and blocked all access to the common lift of plaintiff's property. But the aforesaid emails clearly depict that he was duly asked and informed, time and again, by the defendant no.1, at each step about the refurbishment of the lift in question. By concealing the said facts and by repeatedly pleading that the defendants have unilaterally renewed the AMC of the lift and blocked his access to it, the Appellant/Plaintiff has tried to mislead the Court to get favourable order, which clearly demonstrate his malafide. He has not approached the Court with clean hands.
22. The relief of injunction is an equitable and discretionary relief. The Hon'ble Supreme Court has held in Gujarat Bottling Co. Ltd. Vs. Coca Cola Company, AIR 1995 SC 2372 that since the relief of MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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injunction is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief and his conduct should be fair and honest.
23. The Hon'ble Supreme Court has held in G. Jayashree Vs. Bhagwamdas S. Patel, AIR 2009 SC 1749 and Mahabir Prasad Jain Vs. Ganga Singh, AIR 1999 SC 3873 that the plaintiff is expected to approach the Court with clean hands and his conduct plays an important role in the matter of exercise of discretionary jurisdiction by a Court of law. If he has not come to Court with clean hands, he is not entitled to get any equitable relief.
24. The maxim that 'he who seeks equity must do equity' means that a plaintiff in his dealings with persons against whom relief is sought, must act in a fair and equitable manner only then he is entitled to injunction. The necessary corollary of this is that the plaintiff must disclose to the Court complete and true facts especially the facts which may disclose the probable defence of the defendants or the plus points of the MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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defendants. If these details are withheld by a party or a plaintiff and an exparte injunction is obtained then it is going to be only short lived and the party must be penalised for such misconduct by discontinuing the injunction granted in its favour. (Reliance is placed on caselaw titled as Triumphant Institute of Management Education Pvt Ltd. Vs. Aspiring Mind Assessment P. Ltd., 2014(210) DLT
618)
25. In the present case, as stated above the Appellant/Plaintiff has not disclosed to the Court the complete and true facts and thus, has made himself disentitled to the equitable and discretionary relief of interim injunction. In Mohan Devi Vs. Daljeet Singh, 2008(146) DLT 87 the Hon'ble Division Bench of Delhi High Court has held that relief of interim injunction is a discretionary relief and a party that does not come to the Court with clean hands and suppresses material facts is not entitled to interim relief.
26. The Hon'ble High Court of Delhi has held in Champa Arora Vs. Shiv Lal Arora, 2001(94) DLT 658 as follows:
"It is a settled principle in law that a person, who seeks equity, must come with clean hands. A litigant, MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors. Page 35 of 38
who suppresses a fact from the court, indeed loses the right to seek an equitable relief of ad interim injunction.
xxxxx a person who had suppressed the facts indeed will not be entitled to any ad interim injunction. The plaintiffs, in the present case, have not come to the court making a clean breast of the events. In face of that and the cumulative effect of what has been recorded here, it may be held that the plaintiffs do not have a primafacie case."
27. Since, in the present case also, the Appellant/Plaintiff has also not come to the Court with clean hands and has suppressed the complete and material facts, so, in view of the aforesaid caselaw, he does not have a primafacie case.
28. Though the Appellant/Plaintiff has moved application U/O.39 R.1&2 CPC for restraining defendants/respondents from blocking his access to lift in question and has given impression as if he is seeking relief of interim injunction, but the Ld. Trial Court has rightly observed that relief sought by him is of interim mandatory injunction as the admitted MCA No.01/2024 Aman Nath Vs. Surendra Srivastava & Ors.
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position is that the access of plaintiff to lift in question has already been blocked and the plaintiff is seeking positive direction to the defendants to remove the said blockage.
29. Mandatory injunction is an extraordinary remedy that compels a party to take a specific action. To obtain such relief, the plaintiff must demonstrate a clear legal right to the relief sought. The prerequisites for grant of interim mandatory injunction are (i) a strong primafacie case in favour of plaintiff, (ii) balance of convenience must tilt in favour of plaintiff, and (iii) irreparable loss and injury to plaintiff, which cannot be compensated in terms of money, if interim injunction is not granted to him. Unless all these three requirements are satisfied, the plaintiff is not entitled to the relief of injunction. It is settled law that the Court should be very slow in granting the relief of interim mandatory injunction and would grant the same only in rare and exceptional cases where the Court comes to the conclusion that a grave injustice would be done to the petitioner in case such a relief is not granted. The Hon'ble Supreme Court has held in Deoraj Vs. State of Maharashtra & Ors., (2004) 4 SCC 697 as follows:
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"In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases."
30. The Hon'ble Supreme Court has held in Dorab Cawasji Warden Vs. Coomi Sorab Warden, AIR 1990 SC 867 that the following conditions must be fulfilled before granting interim mandatory injunction:
"(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a primafacie 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."
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31. Thus, for granting interim mandatory injunction, the plaintiff requires to put up a strong case for trial which shall be of higher standard than a primafacie case. But in the present case, the plaintiff/appellant has failed to show even a primafacie case what to talk of strong case. He is also guilty of suppression of facts which makes him disentitled to the equitable relief of interim injunction.
32. In view of the aforesaid analysis, it is held that there is no merit in the appeal. Hence, the appeal is dismissed.
33. File be consigned to Record Room. Trial Court Record be sent back alongwith copy of this order.
(Announced in open
Court on 27.05.2024) (Navita Kumari Bagha)
DJ02, South East District,
Saket Courts, New Delhi
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Aman Nath Vs. Surendra Srivastava & Ors.