Delhi District Court
Mount Kailash Resident'S Association vs Mount Kailash TowerIii on 15 January, 2019
Page no. 1 of 10
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, JSCC CUMASCJCUM
GUARDIAN JUDGE, DISTRICT: SOUTHEAST, NEW DELHI.
MCA NO. 5005/16
In the matter of:
MOUNT KAILASH RESIDENT'S ASSOCIATION
Flat no. 1 to 60 Pocket A
Through its Secretary
A9, DDA, SFS Flats,
Mount Kailash,
East of Kailash, New Delhi65
..................Appellants
VERSUS
MOUNT KAILASH TOWERIII
Avasiya Welfare Committee
Through Chairman Mr. J. K. Sharma
S/o Late Sh. Har Govind Shashtri,
R/o 528, Tower III
Mount Kailash,
New Delhi65
................Respondent
Date of Institution: : 07.09.2015
Date of reserving order: : 15.01.2019
Date of Judgment: : 15.01.2019
JUDGMENT:
(Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 2 of 10
1. This is an appeal under Section 104 CPC r/w Order 43 Rule 1 CPC against the order dated 28.08.2015 passed by Shri Dinesh Kumar, Ld. CJ, South East, Saket Courts vide which the application under Order 39 Rule 1 & 2 of the appellant /plaintiff was dismissed.
2. The brief facts of the case as per the applicant/plaintiff are as follows:
2.1. It is alleged that the plaintiff is a Resident Welfare Association comprising flats 1 to 60, pocket A, Mount Kailash, New Delhi, registered under the Societies Registration Act. The defendant is a residents' association of residents of TowerIII, Mount Kailash. 2.2. It is alleged that the passage to the flats of the members of the plaintiff association is clearly earmarked. It is guarded on both sides by a parapet wall and iron grill of 57 feet height, raised by Tower II and III on either side. The passage through the fence is approximately 12 feet wide, which leads to the flats of the members of plaintiff. About 100 meters inside the plaintiff association has installed a gate under the lock and key of the plaintiff, which is (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 3 of 10 guarded by a guard posted by the plaintiff. The said passage is the only ingress and egress to the 60 flats occupied by the members of the plaintiff association. The plaintiff is in exclusive use and occupation of the corridor from point A to B till the gate of Mount Kailash, Pocket A, as shown in the site plan and the entire area inside the gate of plaintiff. The defendant is, however, bent upon to open a gate between point B and C as shown in the site plan. 2.3. It is alleged that the flats to the members of the plaintiff association were alloted under the self finance scheme of DDA. The applications were invited in the year 1982. After construction of the same possession of the flats were duly handed over to the allottees by 1985. The area, which was marked for the park of Block A, Mount Kailash was later on converted to raise the Tower III by DDA. 2.4. It is alleged that on 12.10.2013, the defendant attempted to demolish the parapet wall laid down originally by DDA without any permission, apparently to take illegal and forcible possession of the suit premises from the plaintiff. The defendant has made attempts to dispossess the plaintiff from the suit premises, which is in (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 4 of 10 possession of the plaintiff till date.
2.5. It is alleged that on 06.01.2014, the officials of the defendant came with gas cutters on the gate of the plaintiff and they cut down the gate and took away the hinges etc. of the gate to ensure that the plaintiff could not reinstall the gate. However, the plaintiff reinstalled the gate on the same day. The plaintiff also made complaints to the police. However, no action has been taken. The defendant has also filed a suit in the Hon'ble High Court of Delhi to encroach upon the exclusive parking allotted by DDA.
2.6. It is alleged that on 15.01.2014, the defendant's officials forcibly demolished the guard cabin near the main entrance gate.
They also tried to open the gate in the suit premises on 27.01.2014. It was stopped by intervention of the police. On 04.04.2014, the security incharge of the plaintiff had heard that some officials of the defendant were planning to cut the pipe line, demolish the wall and cut the fence to force open a gate inside the suit premises, which is in possession of the residents of the association. The plaintiff association has made complaint to the commissioner of police. Now, (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 5 of 10 the plaintiff has apprehension that the defendants may taken the law in their hands by dispossessing the plaintiff forcibly. Recently, defendants have started parking their cars in the corridors running through fencing on the either side put up by TowerII and III. It is alleged that the parking of the cars in the corridor not only hampers the movement of the member of the plaintiff but it also creates hindrance in arrival of emergency services like fire brigade, ambulance and water tankers. Hence, the present suit has been filed seeking a decree of permanent injunction thereby restraining the defendant and its members from demolishing the parapet wall and removing the fencing.
3. The Ld. Trial Court vide order dated 28.08.2015, dismissed the application of the appellant/plaintiff under Order 39 Rule 1 & 2 CPC and hence the present appeal has been filed by the appellant /plaintiff.
4. Heard. Record Perused.
5. The appellant has assailed the order of the Ld. Trial Court by way of this appeal and it is mainly alleged that the impugned order is beyond the (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 6 of 10 pleadings and has been passed ignoring the basic facts and the settled principles of law. It is submitted that one separate case is pending in the Hon'ble High Court of Delhi bearing CS OS no. 529/2010, wherein the respondent tried to implead the appellant as a party but the application under Order 1 Rule 10 CPC of the respondent was dismissed by the Hon'ble High Court of Delhi vide 17.03.2015. It is alleged that the Ld. Trial Court ignored the order of the Hon'ble High Court of Delhi and the Ld. Trial Court has allowed what has been specifically denied by the Hon'ble High Court of Delhi.
6. Record reflects that the CS OS no. 529/2010 was filed by Mount Kailash Residents Association (flat no. 61 to 120) against the defendant herein and DDA in relation to the parking sites. The defendant tried to implead the plaintiff i.e. Mount Kailash Residents Association (flat no. 1 to
60) alleging that out of 69, 14 parkings are being used by the proposed defendant. The Hon'ble High Court of Delhi vide order dated 17.03.2015, dismissed the aforesaid applications observing that the suit is in relation to 23 parking lots and the alleged 14 parking lots are not the subject matter of that suit and the scope of suit cannot be enlarged. It was also observed (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 7 of 10 that the defendant herein can file an appropriate suit against the proposed defendant with regard to the 14 parking lots. In that suit before the Hon'ble High Court of Delhi, the defendant DDA has filed the WS along with the site plan. That site plan clearly shows the alleged 14 parking lots adjoining the area of the defendant. However, that alleged 14 parking lots area is nowhere seems to be connected with the dispute between the parties in the present case. The present case pertains to the alleged opening at point B to C which is not connected to the area of the aforesaid 14 parking lots. Thus, this court finds that the order dated 17.03.2015 of the Hon'ble High Court of Delhi, does not affect the merits of this case. The contention of the counsel for the appellant that the Ld. Trial Court has ignored the order of the Hon'ble High Court of Delhi is misconceived.
7. It is also alleged on behalf of the appellant that the Ld. Trial Court has wrongly appreciated the gate cutting photographs filed by the respondents to conclude that the gate was illegal as the same has been done by misleading the concerned authorities in the interregnum. Though, it has been alleged that the concerned authority was misled and the gate of the appellant was got cut, however nothing has been shown by the (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 8 of 10 appellant to prove that the aforesaid gate of the appellant was installed legally after taking due permission from the MCD as per the relevant notification.
8. It is further asserted by the counsel for the appellant that the Ld. Trial Court has ignored the photographs and video CD filed by the appellant to show that there is no gate or opening at the suit property as alleged by the respondent. It is further submitted that the layout plan along with the DDA brochure issued to the allottees of the appellant at the time of allotment of flats to them clearly establish their exclusive rights qua the use and occupation of this site of area of the suit property. Now, bare perusal of the layout plan relied upon by the appellant reveals that there is some parking area shown in front of the flats of the appellant but it does not per se mean that the parking area also include the road between the area of plaintiff and defendants. The layout plan by itself shows that there is a road coming between the areas of plaintiff and defendant and as such the layout plan received upon by appellant does not by itself shows the exclusive rights of the appellant over the disputed area /road.
9. It is also alleged by the counsel for the appellant that as per the (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 9 of 10 layout plan there is no opening of the defendant's area towards the disputed area /road and there is no such opening as on today and the Ld. Trial Court has wrongly appreciated the fact. Though the layout plan relied upon by the appellant does not show opening of defendant area towards the disputed area /road but the layout plan relied upon by the defendant reveals that there is an opening of the defendant area towards the road. The Ld. Trial Court has observed that prima facie the alleged corridor claimed by the plaintiff as its exclusive property is public road. It is also observed that as per the site plans filed by the parties there is a DDA park at the end of the road which can be accessed through this road and during the course of arguments, the Ld. Counsel for the plaintiff admitted that the said road is maintained by MCD. It is also observed that the plaintiff has failed to bring on record any document to show that the road is exclusive property of plaintiff association. This court is in full agreement with the observations made by the Ld. Trial Court. The plaintiff /appellant has only relied upon the layout plan which was issued to them at the time of allotment but that does not conclusively determine that the disputed area is for the exclusive use of the plaintiff/appellant and that the parking area shown in the layout plan relied upon by the plaintiff/appellant includes the (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r) Page no. 10 of 10 impugned road within. It is not in dispute that the impugned road falls between the area of appellant on one side and the area of defendant on the other side. In absence of the plaintiff showing any concrete proof regarding their exclusive rights over the impugned road, the prima facie case does not lie in favour of the plaintiff. On the other hand, the defendant has shown the layout plan which has opening at the place from point B to C. Even otherwise, since the impugned area is apparently a public road leading to the public park, the defendant having its area along side such road, cannot be restrained to open a gate towards the alleged public road.
10. This court finds no illegality, perversity or error in the order of the Ld. Trial Court dated 28.08.2015 and the same is hereby upheld.
11. The appeal is hereby dismissed.
12. The TCR be send back to the concerned Trial Court alongwith the copy of this order. The appeal file be consigned to record room.
Announced in the open court (Sushil Anuj Tyagi) today i.e on 15.01.2019. JSCCcumASCJcumGJ South East, Saket Courts:New Delhi(r) 15.01.2019 (Sushil Anuj Tyagi) MCA no. 5005/16 JSCCcumASCJcumGuardiun Judge Mount Kailash Resident Association South East, Saket Courts Vs. Mount Kailash TowerIII 15.01.2019 (r)