Delhi District Court
M/S Setia Buildwell Pvt. Ltd vs Ms. Narinder Pal Kaur Chawla on 15 July, 2008
-:1:- Suit No.56/2007
IN THE COURT OF SHRI S.S.HANDA: ADDL. DISTRICT JUDGE
DELHI
Suit No.56/2007
M/s Setia Buildwell Pvt. Ltd.
4/B-73, Maya Puri,
New Delhi-110064
Through its Director
Shri Surender Kumar Setia
S/o Late Shri Faquir Chand
Plaintiff
Versus
1. Ms. Narinder Pal Kaur Chawla
R/o A-447, Second Floor,
Defence Colony, New Delhi.
2. Union of India,
Through The Commissioner of Police,
Police Head Quarters,
I.P.Estate
New Delhi
Defendants
Date of Assignment : 06.11.2007
Date of Arguments : 14.07.2008
Date of Decision : 15.07.2008
Appearances : Shri Jugal Wadhwa, Ld. counsel for the plaintiff.
Defendant No.1 Ms. Narinder Paul Kaur Chawla in person.
Shri S.S.Popli, Ld. counsel for defendant no.2.
-:2:- Suit No.56/2007
JUDGMENT
The suit is for a decree of permanent and mandatory injunction pertaining to the property No. A-447, Defence Colony, New Delhi (here in after for convenience referred to as 'the suit property'). 'The suit property' admittedly consists of ground floor with garage; first floor; second floor and the open terrace at the second floor. The plaintiff company has filed on record the sale deed dated 16.5.2007 on the basis of which it claims to be the owner of the freehold 'suit property'. The vendor/recorded absolute owner, Smt. Joginder Kaur; wife of late Shri G.S.Chawla; after his death was mutated as sole owner of 'the suit property'. At time of execution of sale deed dated 16.5.2007 she handed over to the plaintiff the peaceful vacant physical possession of the car garage at ground floor; entire first floor and open terrace at the second floor of the suit property. And the vendor allegedly had handed over the symbolic proprietary possession of remaining ground floor and second floor of 'the suit property'. The entire ground floor except the car garage is stated to be in occupation of tenant, Mr. Shantanu Saikia and entire second floor is stated to be in unauthorised and illegal occupation of the defendant no.1. It is averred and affirmed by the plaintiff company that defendant no.1 who is second wife of Shri Manjit Singh Chawla; son of Smt. Joginder Kaur Chawla is constantly harassing, abusing and threatening the plaintiff's official and the tenants etc. and; illegally preventing them to go to the first floor and terrace of the second floor of 'the suit property' and thereby the plaintiff sought to restrain the defendant no.1, -:3:- Suit No.56/2007 her agents, associates, servants etc. from illegally locking the common passage leading to the first floor and terrace to the second floor of 'the suit property' shown red in the site plan and since the defendant despite of complaints failed to act; plaintiff company mandated the defendant no.2 to protect their life, liberty and property and proceed as per law against the defendant no.1.
2. The defendant no.1 as per written statement filed has contested the suit of the plaintiff company with the allegations that suit of the plaintiff company is misconceived and untenable. That she is in possession of entire first and second floor of 'the suit property' and the plaintiff company never held possession even on an inch of 'the suit property' much less of the first floor of the property even for a single minute. That without being in possession of the first floor and terrace; the relief of ingress and egress as sought by the plaintiff company is clearly misconceived. She has referred to the Will of late Shri G.S.Chawla and stated that the sale deed dated 16.5.2007 is a hoax and fraud. She denied that plaintiff company had and was entitled to protection of any proprietary rights in 'the suit property'. She alleged that the plaintiff company; a land grabber is playing fraud and in the garb of ingress and egress intends to grab 'the suit property'.
3. In written statement filed by defendant No.2 it has been mentioned that suit of the plaintiff is not maintainable for want of notice under Section 140 of D.P. Act & notice under Section80 CPC. That the suit of the plaintiff is bad for mis joinder of necessary parties as no specific relief has been sought by the plaintiff against defendant no.2.
-:4:- Suit No.56/2007It is further stated by the defendant that suit of the plaintiff against defendant no.2 is liable to be dismissed for lack of cause of action.
4. In his replication, the plaintiff controverted the allegations made in the written statement and reiterated the averments made in the plaint.
5. On the pleadings of the parties, vide orders dated 15.1.2008 following issues were framed:
(1) Whether the suit of the plaintiff is misconceived and not maintainable? OPD (2) Whether the suit has been properly valued for the purposes of court fees and jurisdiction? OPP (3) Whether the defendant no1 has any locus to lock the common passage and prevent/block ingress of the plaintiff to the suit property? OPP (4) To what relief plaintiff is entitled for? OPP (5) Relief.
6. In support of the case of the plaintiff, Shri Surender Kumar Setia, Director of plaintiff has been examined as PW-1. He tendered his evidence by way of affidavit Ex.PW1/A and exhibited documents Ex.PW1/1 to 5
(ii) Defendant no.1 in support of her case beside examining herself also examined Shri Narinder Vats, Ahlmad in the court of Shri Sanjeev Jain, Ld. CMM, Tis Hazari Courts who has proved on record photocopy of the bail bonds Ex.DW2/1 and DW2/2; & Shri Mukesh Kumar, Assistant Record Muharar, PS Defence Colony, New Delhi who proved copy of DD entry No.23A as Ex.DW3/1 and Vapsi Entry as Ex.DW3/2.
(iii) On behalf of defendant no.2, no evidence has been led.
-:5:- Suit No.56/2007However, Ld. counsel for the defendant no.2 has relied and proved on record as Ex.PW1/5.
7. After concluding of evidence led the parties, final arguments of Ld. counsel for the plaintiff and defendant no.2 and of the defendant no.1 in person were heard. Defendant no.1 also filed written arguments.
8. On perusal of pleadings of the parties, examination of evidence on record and considering the arguments of Ld. counsels for plaintiff and defendant no.2 as well as of defendant no.1 in person, my findings on the issues are as below:
FINDINGS ON ISSUE NO.1:-
9. Although, an objection was taken by the defendant that the suit of the plaintiff is misconceived and not maintainable yet the defendant no.1 has not adduced any evidence on the issue. Affidavit DW-1/A is silent on this issue.
Burden to prove this issue was on the defendant no.1.
The defendant no.1 having failed to discharge the burden, therefore, it is held that defendant no.1 has failed to prove this issue. Accordingly; this issue is decided against the defendant no.1 and in favour of the plaintiff .
-:6:- Suit No.56/2007FINDINGS ON ISSUE NO.2:-
10. Burden to prove this issue was on the plaintiff.
11. The plaintiff has valued the suit for purposes of relief of permanent injunction at Rs. 5,00,000/- and for the relief of mandatory injunction at Rs.130/-. For the defendant no.1 objection was taken that the suit has not been properly valued as the entire suit property is arbitrarily and grossly under valued (para 17 of WS).
12. The settled position of law as submitted by Ld. counsel for the plaintiff Shri Jugal Wadhwa is that it is discretionary for the plaintiff to value the suit for permanent injunction and/or mandatory injunction. The plaintiff was at liberty to value notionally its suit for jurisdictional as well as court fee purposes. No merit is found in the objection taken by the defendant no.1 that the suit ought to have been valued for purposes of jurisdiction and court fees on the market value of 'the suit property'. The notional valuation of the suit for purposes of jurisdictional as well as court fee, thus, is found to be legal. Upon this requisite court fee has been paid.
Accordingly, issue no.2 is answered in favour of the plaintiff and against the defendants.
FINDINGS ON ISSUE NOs.3 & 4:-
13. Issue numbers 3 and 4 being inter linked and evidence being -:7:- Suit No.56/2007 common to both the issues; for convenience are taken up together.
(ii) The burden to prove issue numbers 3 lay upon defendant no.1 whereas burden to prove Issue No.4 being relief part, as claimed by the plaintiff lay upon him.
As recorded above, the material witness in the case from the side of the defendant no.1 is defendant no.1 herself whereas from the side of the plaintiff material witness is PW-1, Shri Surender Kumar Setia one of the Director of the plaintiff company.
14. PW-1 in his affidavit affirmed that plaintiff company is a company incorporated under the Companies Act, 1956 and having its corporate office at 4/B-73, Mayapuri, Phase-1, New Delhi-110 064. He being the Director of the plaintiff company, is competent and is duly authorised to file the present suit by virtue of resolution passed on 29.10.2007 by the Board of Directors of the plaintiff company. He proved the Board resolution as Ex.PW1/1. He further testified that plaintiff company is the owner of the property bearing no.A-447, Defence colony, New Delhi having purchased the same from its previous owner Smt. Joginder Kaur wife of late Shri Gurbachan Singh Chawla vide sale deed duly registered with the Sub Registrar-IV, New Delhi and registered as document No.5956, in Blook No.1, Volume No.7306, from Pages 101 to 126 and registered on 16.05.2007. He proved certified copy of the same as Ex.PW1/2. The disputed portion of 'the suit property' has been marked red in the site plan Ex.PW1/3. He further deposed that peaceful and vacant possession of the first floor, one car garage on the ground floor and terrace roof right of the entire second floor of 'the suit property' were handed over by Smt. Joginder Kaur to the plaintiff company and proprietary -:8:- Suit No.56/2007 possession of the entire ground floor and the second floor was also handed over by the vendor to the plaintiff company. He testified that the ground floor portion is in the occupation of a tenant Shri Shantanu Saikia and the entire second floor is in unauthorised and illegal occupation of the Defendant No. 1 who claims to be the second wife of one Shri Manjit Singh, the son of Smt. Joginder Kaur, previous owner/vendor. He further testified that the entrance to the first floor and the second floor of 'the suit property' is through the common passage of the staircase at the ground floor and a gate has been in existence at the said passage for security purposes. He further deposed that he had gone out of Delhi for few days and locked the first floor portion and when he came back on 9.7.2007, he found the common passage of the staircase locked by the defendant no.1 and inspite of his best efforts; Deft No.1 refused to open and rather she abused him and threatened him and used very filthy language against him. Defendant no.1 was also accompanied by one Shri Iqbal Singh and threatened that she will kill him by putting the whole house on fire....... He further deposed that a criminal complaint was also lodged copy of which has been proved as Ex.PW1/4 and case FIR was also registered under Section 341/34 IPC, copy of which has been proved as Ex.PW1/5. He further deposed that no action has been taken by the police in the matter against the defendant no.1. He further affirmed that the defendant no.2 has been totally inactive and is not taking any action against the defendant no.1 for her mischievous, illegal and unlawful activities of locking the common entrance to the first floor and to the terrace of the second floor of 'the suit property'. Whereas the Deft. No.1 has been preventing the plaintiff's directors, officials, its tenant and others from entering the first floor etc. of 'the suit property' and harassing them by her mischievous acts.
-:9:- Suit No.56/200715. PW-1 was subjected to extensive cross-examination twice by defendant no.1 but he denied the suggestion that the first floor of 'the suit property' was handed over by Shri Manjit Singh Chawla (her husband) to defendant no.1. He denied that sale deed Ex.PW1/2 is a fraud or Mrs. Joginder Kaur Chawla had no right to sell 'the suit property'.
16. Contrary to this, DW-1 tendered her chief by way of affidavit Ex.DW1/A and relied upon the documents Ex.DW1/1 to Ex.DW1/19.
In her cross-examination dated 22.4.2008 she admitted that at present she is in possession of the second floor of 'the suit property'. She further admitted that 'the suit property' was mutated in the name of Smt. Joginder Kaur Chawla. She qualified the submission stating that she had no right to get 'the suit property' mutated in her name. In her own words:
"At present I am in possession of the second floor of the suit property.....
Q. Is it correct that the suit property i.e. A-447, Defence Colony, New Delhi was mutated in the name of Smt. Joginder Kaur Chawla? Ans. Yes. but it was a fraud played upon by L & DO and with me. As she had no right to get the suit property mutated on her name.
I had filed objections against the mutation before L & DO which were rejected. I did not file any suit challenging the mutation in the name of Smt. Joginder Kaur Chawla."
17. At the same time she denied the suggestion that she was in illegal possession of the second floor of 'the suit property'. She denied having locked the passage leading to the first floor and open terrace of the second floor of 'the suit property'. She denied that she had no proprietary right in -:10:- Suit No.56/2007 'the suit property'.
18. Evidence of DW-2, Shri Narinder Vats, is of no relevance. Whereas deposition of DW-3 Shri Mukesh Kumar merely exhibits the dispute between the plaintiff and defendant no.1.
19. The scope of dispute before this Court is small and limited only: as to whether the defendant no.1 has any positive right to block the passage of the plaintiff/its tenant etc. to the gate from the ground floor leading to first floor & to the open terrace of the second floor of the ' suit property'.
20. A decree of perpetual injunction, depends, in India upon statute and is governed by Section 38 of the Specific Relief Act, 1963. In Tituram Mukerji Cohen; I.L.R. 33 Cal. 203 Privy Counsel prescribed the condition:
"Perpetual injunction can be granted by the Court:sub-section (1) of this section says that the purpose of granting perpetual injunction should be that breach of an obligation existing in favour of the plaintiff be prevented. It is of no-consequence, whether the breach of the obligation is expressed or implied. Sub-section (2) of this section prescribes when the obligation referred to in sub-section (1) of the section arises under the contract, the Court should be guided by the law enacted in Chapter II of the Act. Sub-section (3) of the present section lays down the conditions under which the defendants may be permanently injuncted from invading, or threatening to invade' the plaintiffs' right to or enjoyment of the property.
The law has detailed the four categories of cases specified in sub-clauses (a) to (d) of sub-section (3) of this section. They are (a)when the defendant is the trustee for the plaintiff; (2) when there exists no standard for measuring the damages caused, or likely to be caused, by the actual invasion; (3) where compensation in money would afford no adequate relief to the plaintiff; (4) where the injunction is necessary to prevent multiplicity of judicial proceedings. From the above statement of the law it will be seen that the primary object of the grant of perpetual injunction is to prevent a breach of -:11:- Suit No.56/2007 an obligation. Thus the broad and general rule is that, where there is a breach of an existing legal right of a person, he is entitled under the law to prevent that breach by means of an injunction...."
21. From the pleadings and evidence on record, it stands duly established that 'the suit property' was mutated by L & DO in the name of Smt. Joginder Kaur Chawla despite of objection of defendant no.1. This mutation is not set aside till date. Secondly, 'the suit property' was transferred by Smt. Joginder Skaur Chawla by way of registered sale deed dated 16.5.2007 Ex.PW1/2 in favour of the plaintiff. The sale deed till date stands valid. It transferred, thus, proprietary rights in 'the suit property' to the plaintiff company. The plaintiff is conferred, therefore, legal right for its peaceful user.
22. Whereas, defendant no.1 is admittedly in possession of first floor of 'the suit property'. Hon'ble Supreme Court while dealing with Deft No.1's maintenance petition in Civil Appeal No.2606 of 2004 ordered for not disturbing the right of separate residence provided to the wife at the second floor of the husband's premises. Defendant no.1, therefore, can not be evicted from 'the suit property' except with due process of law. (AIR 1981 SC 1182)
23. Whereas as per sale deed and as affirmed by PW-1, plaintiff has been put in vacant possession of garage and first floor; and in symbolic possession of the other portions of 'the suit property'. The defendant no.1, -:12:- Suit No.56/2007 allegedly the second wife of Shri Manjit Singh Chawla; son of Mrs. Joginder Kaur Chawla has not been able to establish justiciable and positive proprietary rights in 'the suit property' particularly to block/hinder the ingress and egress of the plaintiff company/tenant etc. to the first floor; and/ or lock the way of the plaintiff company/tenant etc. to the first floor & the open terrace of the second floor. In fact in the earlier proceedings she never claimed to be in possession of the first floor of 'the suit property'. Smt. Joginder Kaur Chawla apparently resided therein. Vide registered sale deed Smt. Joginder Kaur Chawla has put the plaintiff in its possession thereof. The 'right to residence' apparently is different from 'right to property'. Moreover the right of maintenance etc. rightly contended by Mr. Jugal Wadhwa, Ld. counsel for the plaintiff is against Mr. Manjit Singh Chawla. Defendant no.1, thus, has failed to show any positive right to block the common passage of the plaintiff or his tenant etc. to the first floor & open terrace of the second floor of 'the suit property'.
24. The plaintiff has an existing legal right to enjoyment of 'the suit property'; and a legal obligation is imposed upon defendant no.1 not to disturb the positive right of the plaintiff by blocking the passage of the plaintiff or his tenant etc. in 'the suit property'.
25. He who seeks equity must do equity. In terms of above, at one hand, the plaintiff with its rights owes a duty to the defendant no.1. On the other hand defendant no.1 owes a duty and is under obligation to the plaintiff -:13:- Suit No.56/2007 not to breach the existing legal right of the plaintiff.
26. For defendant no.2, it was undertaken by Mr. S.S.Popli, Ld. counsel for defendant no.2 that defendant no.2 shall be proceeding against the law violator in accordance with the law. In view of this position no relief/order against defendant no.2 need be passed/given.
27. In this perspective, issue no.3 is answered to the effect that defendant no.1 has no right or locus to block the common passage of the plaintiff/tenant etc. to the first floor & the open terrace of 'the suit property' whereas the plaintiff not disturbing/evicting the defendant no.1 from the second floor except with due process of law. In terms thereof plaintiff is entitled to the relief of decree of perpetual injunction prayed for against the defendant no.1 only.
RELIEF
28. As a result of my findings on issues above; whereas defendant no.1 be not evicted from the second floor of 'the suit property' without due process of law; A decree of Perpetual Injunction in favour of the plaintiff and against defendant no.1 is passed; thereby restraining her/her agents from blocking the passage of the plaintiff/tenant etc. leading to the first floor and to the terrace of the second floor of 'the suit property' -:14:- Suit No.56/2007 i.e. property No. A-447, Defence Colony, New Delhi; with no order as to costs.
Decree sheet be drawn accordingly.
File be consigned to record room.
DICTATED & ANNOUNCED IN THE OPEN COURT (S. S. HANDA)
ON THIS 15th DAY OFJULY, 2008 ADDL. DISTRICT JUDGE
DELHI