Delhi District Court
Vide This Order vs Unknown on 2 July, 2013
IN THE COURT OF MS. NITI PHUTELA:
CIVIL JUDGE02:SOUTH: SAKET COURT COMPLEX:
NEW DELHI.
CS No. 154/2013
Amit Jain & Anr.
Versus
Smt. Kusum Kansal & Anr.
ORDER
1. Vide this order, I shall dispose of an application of the plaintiffs filed under Order 39 Rules 1 & 2 CPC wherein the plaintiffs have prayed that the defendants be restrained from erecting any unauthorized structure on the terrace of the suit property and further, restraining the defendants from locking the gate towards the terrace.
2. Brief facts necessary for disposal of the present application are that plaintiff no.1 is residing on the first floor front portion of the suit property bearing no. JE1/1, Second Floor, Front Side, Khirki Extension, Malviya Nagar, New Delhi. The suit property was purchased by the father of plaintiff no.1 from erstwhile owner in June 1996. Plaintiff no.2 purchased first floor, front side portion of the suit property in the year May 2011 and since then, plaintiff no.2 is CS No.154/2013 Page 1 of 6 residing along with her family at the first floor of the suit property.
3. On the other hand defendant no.2 purchased third floor of the suit property and defendant no.1 i.e., mother of defendant no.2 is residing on the same since its purchase.
4. It is the case of the plaintiff that the plaintiffs have right to use all the common entrances and passages along with all the common facilities pertaining to the suit property. Further, the over head tank of all the floors of the suit property were placed on the 3rd floor and the plaintiff was using the terrace to have access to the water tanks without any hindrances from any side but in July 2007 defendants tries to construct unauthorized construction on the third floor by keeping building material on the same. As per plaintiffs, against this unauthorized act of the defendants, they raised a voice and so, defendants, had stopped the construction activity at the third floor but they locked the common entrance of the terrace which prevented the plaintiffs from having access to the common facility of terrace and even posed hindrance in the cleaning of tanks even on the third floor. Despite various requests, the defendants refused to open the lock and are since then preventing the plaintiffs from using the common facilities. Aggrieved by this, the plaintiffs sent a legal demand notice dated 22.11.2012 against the defendants but no reply was sent by them. Hence, the present suit is filed by the plaintiffs CS No.154/2013 Page 2 of 6 seeking declaration to the effect that the staircase of the suit property be declared as common facility as it is meant for common use by all the residents residing therein and seeking permanent injunction against the defendants from carrying out any unauthorized construction on the terrace and putting any lock on the gate leading to terrace.
5. On the other hand, the defendants in their WS stated that suit of the plaintiff is false and frivolous and is filed just to harass the defendants. There is no cause of action in favour of the plaintiffs against defendants and the suit is liable to be rejected under Order 7 Rule 11 CPC. The suit is not valued properly and proper court fee is not filed by the plaintiff. The documents relied upon by the plaintiffs are neither registered nor proper stamp duty is filed on the same. Therefore, the suit of the plaintiff is not maintainable. There is no privity of contract between the plaintiff and defendants and suit is barred by the provisions of Sections 13 to 19 & 19A of the Indian Contract Act.
6. As per defendants, the plaintiff has not come to the court with clean hands and has suppressed the material facts. It is averred by defendants that defendant no.2 had purchased the suit property i.e, Third Floor from an erstwhile owner Smt. Sangeeta Aggarwal in the year 1996 along with absolute and exclusive terrace right of the CS No.154/2013 Page 3 of 6 portion above. It is stated by defendants that they have neither carried out any construction on the third floor nor they have any intention to construct on the same. They have also undertaken that in future also no construction will be carried out by them on the third floor. They explained that the building material is lying on the third floor is that of the neighbourers and not belonging to defendants. It is also alleged by defendants that plaintiff used to take his dogs on the third floor and they used to bark and create nuisance till late hours and defendant has placed the gate on the third floor for safety purpose because of the increasing cases of thefts in the nearby area. As plaintiffs have no right to use the terrace but still defendants have never prevented the plaintiff from cleaning the tanks and has even not prevented any other resident from doing the same. Thus, as per defendants, the application and suit of the plaintiff is liable to be dismissed because of the above said reasons.
7. The plaintiff in order to substantiate their claim have placed on record copy of GPA executed by erstwhile owner Shri Pramod Puri in favour of plaintiff no.2 pertaining to 1st floor and copy of GPA of erstwhile owner Shri R.P.Gupta in favour of father of plaintiff no.1 i.e., Sh Dhanay Kumar Jain pertaining to the second floor, photographs, legal demand notice and postal receipts.
8. On the other hand, the defendant has filed on record the copy CS No.154/2013 Page 4 of 6 of GPA in favour of defendant no.1 executed by erstwhile owner Smt. Sangeeta Aggarwal, possession letter.
9. Arguments addressed by both the parties. Heard. Record perused.
10. After going through the pleadings of the parties and considering the arguments and documents filed on record this court is of the view that prima facie plaintiff has not been able to show any right/interest over the 3rd floor of the suit property. The documents relied upon by the plaintiff also show that plaintiff No 1 and 2 were given the possession of second floor and first floor respectively. No terrace /roof right were given to them by erstwhile owner. On the other hand the defendant has at this preliminary stage shown that they are entitled terrace /roof rights. Hence, at this preliminary stage the documents relied upon by the plaintiffs does not make out a case in favour of the plaintiffs in regard to restraining the defendants from carrying out any kind of construction on the 3rd floor of the suit property.
11. As regards the prayer of plaintiffs in respect to restraining the defendant from locking the gates leading to terrace on the ground that it is common area and common facilities are to be enjoyed by all residents equally has some substance in the same. However as at this preliminary stage as discussed above the plaintiff has failed to show any right /interest over the terrace therefore though the defendant can CS No.154/2013 Page 5 of 6 not be restrained from locking the door placed on the 3rd floor, but considering the fact that the tanks of the plaintiffs are also placed on 3rd floor which requires the cleaning of the same therefore in this regard the defendant is directed to open the door on every 2nd Sunday of each month so that plaintiffs can have access to the terrace for the purpose of cleaning their respective tanks till the final disposal of the suit.
12. Hence the application of the plaintiff U/o XXXIX Rule 1 & 2 CPC is decided accordingly.
13. Nothing stated herein will cast any shadow of expression of opinion on the merits of the case.
Announced in the open court
on 02.07.2013 (Niti Phutela)
Civil Judge02 (South)
Saket Courts, New Delhi
CS No.154/2013 Page 6 of 6