Delhi District Court
Sh. Pawan Kumar Jain vs Smt. Indu Rohatgi on 11 January, 2016
Civil Suit no.1202A/14
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.1202A/14
1. Sh. Pawan Kumar Jain
S/o Sh. O.P Jain
R/o 174, First Floor,
Sukhdev Vihar,
New Delhi110025.
2. Smt. Archana Jain
W/o Sh. Pawan Kumar Jain
R/o 174, First Floor,
Sukhdev Vihar
New Delhi110025.
3. Sh. Mayank Jain
S/o Sh. Pawan Kumar Jain
R/o 174, First Floor,
Sukhdev Vihar
New Delhi110025.
4. Sh. Rajat Jain
S/o Sh. Pawan Kumar Jain
R/o 174, First Floor,
Sukhdev Vihar
New Delhi110025. ............Plaintiffs.
Versus.
1. Smt. Indu Rohatgi
W/o Sh. K.K. Rohatgi
R/o 174, Second Floor,
Sukhdev Vihar
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 1 of 15
Civil Suit no.1202A/14
New Delhi110025.
2. Sh. Aman Rohtagi (Deleted)
S/o Sh. K.K. Rohatgi
R/o 174, Second Floor,
Sukhdev Vihar
New Delhi110025.
3. Mr. K.K. Rohatgi
R/o 174, Second Floor,
Sukhdev Vihar
New Delhi110025. ..........Defendants
Suit for Recovery of Damages, Permanent and Mandatory injunction.
Re: Application under Order VII Rule 14 read with Section 151 CPC.
By this order, this court shall proceed to decide the application filed
under Order VII Rule 14 CPC seeking leave of the court to place on record the
true certified copies of sale deeds dated 29.04.2005, 24.09.2009 and 22.03.2006
on behalf of the plaintiffs/applicants.
2. Through this application, the applicants/plaintiffs have submitted that
the sale deeds dated 29.04.2005, 24.09.2009 and 22.03.2006 are pertaining to the
first, ground and second floor respectively of the suit property. It is submitted that
the plaintiff has obtained the certified copies of the sale deeds of the property in
occupation of plaintiff and defendants from the office of SubRegistrar
V, Mehrauli. It is submitted that the plaintiffs have original sale deed dated
29.04.2005 and 24.09.2009 pertaining to the first and ground floor whereas sale
deed dated 22.03.2006 is of the second floor under the occupation of the
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 2 of 15
Civil Suit no.1202A/14
defendant. It is also submitted that true copies of these documents were already
filed by the plaintiff at the time filing of the suit. It is mentioned that the
documents are essential for disposal of this matter and therefore, the documents
are taken on record.
3. On notice, reply was filed by the defendants/respondents mentioning
the facts of the entire suit. It was contended that the order dated 26.11.2013 was
based upon the documents produced by the plaintiff at that time. It was further
mentioned that the order was modified vide order dated 31.03.2014 and thereafter
the plaintiff had filed the miscellaneous application in the Hon'ble High Court
wherein the copy of sale deed dated 24.09.2009 was placed on record which is
different from the copy filed before this court. It is submitted that four pages have
been added in the copy of the registered sale deed of ground floor dated
24.09.2009. It was also mentioned that the fabrication was brought to the notice of
the Hon'ble High Court and has been recorded in the order dated 04.02.2015. It is
also contended that petition under Section 340 CrPC is also pending before the
Hon'ble High Court. It was again contended that the sale deed placed on record on
15.12.2011 and the certified copy of registered sale deed now intended to be
produced on record differs drastically as the name of the plaintiff no.1 and 2 is
different, four pages of fabricated map of the property are included, the map is
fraudulent fabricated and forged and gate shown in the map are incorrectly
depicted.
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 3 of 15
Civil Suit no.1202A/14
4. It was also contended that the documents have been filed at a highly
belatedly stage and the application is not maintainable.
5. I have heard the submissions advanced by both the counsel who
argued according to the pleadings taken. I have also perused the case record
meticulously.
6. It can be observed that plaintiff has filed the present suit seeking
relief of damages, permanent and mandatory injunction. The plaintiff has sought
mandatory injunction against the defendants directing them to remove hindrances
to the access of the common toilet, bathroom of servant quarters located at terrace
and the permanent injunction against creating any obstructing and hindrance for
use and enjoyment of the common toilet and bathroom attached with the servant
quarters located at terrace, water connection, lift and the machines room.
Damages are also sought for obstructing the access to the above. It is the case of
the plaintiff that they have the right to servant quarters at the top terrace and other
over head tanks etc vide there sale deed. The documents intended to be kept on
record seems to be relevant to decide the matter. The question boils down to the
rights of the parties stemming out of the recital of the title documents therefore,
the title documents are relevant for adjudication. At the same time, it can be
observed that the application is highly belated as these copies could have been
filed at the time of institution of the matter as well.
7. Respondents have raised objections that the documents are fabricated
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 4 of 15
Civil Suit no.1202A/14
and different from the documents placed on record however, it can only be
considered once the documents are appreciated at the time of final disposal.
Nonetheless, equities need to be balanced hence, cost of Rs. 2,000/ is imposed
upon the plaintiffs payable to the defendant and Rs. 1,000/ to be deposited at
DLSA South Saket. The application is accordingly allowed subject to cost of Rs.
3,000/ is mentioned above. The documents are taken on record.
8. The application is accordingly disposed of.
(TANVI KHURANA)
Civil Judge01 (South)
Saket Courts/New Delhi
11.01.2016.
Note: All the five pages of this order have been checked and signed.
(TANVI KHURANA)
Civil Judge01 (South)
Saket Courts/New Delhi
11.01.2016.
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 5 of 15
Civil Suit no.1202A/14
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.1202A/14
1. Sh. Pawan Kumar Jain
S/o Sh. O.P Jain
R/o 174, First Floor,
Sukhdev Vihar,
New Delhi110025.
2. Smt. Archana Jain
W/o Sh. Pawan Kumar Jain
R/o 174, First Floor,
Sukhdev Vihar
New Delhi110025.
3. Sh. Mayank Jain
S/o Sh. Pawan Kumar Jain
R/o 174, First Floor,
Sukhdev Vihar
New Delhi110025.
4. Sh. Rajat Jain
S/o Sh. Pawan Kumar Jain
R/o 174, First Floor,
Sukhdev Vihar
New Delhi110025. ............Plaintiffs.
Versus.
1. Smt. Indu Rohatgi
W/o Sh. K.K. Rohatgi
R/o 174, Second Floor,
Sukhdev Vihar
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 6 of 15
Civil Suit no.1202A/14
New Delhi110025.
2. Sh. Aman Rohtagi (Deleted)
S/o Sh. K.K. Rohatgi
R/o 174, Second Floor,
Sukhdev Vihar
New Delhi110025.
3. Mr. K.K. Rohatgi
R/o 174, Second Floor,
Sukhdev Vihar
New Delhi110025. ..........Defendants
Suit for Recovery of Damages, Permanent and Mandatory injunction.
Re: Application under Order XIV Rule 5 CPC read with Section 151
for amendment.
Present: None.
ORDER:
The present application has been filed by the plaintiffs seeking that issue no.7 framed by this court vide order dated 16.03.2015 be stricken of from the issues.
2. It was prayed that the issue framed pertaining to the misjoinder and nonjoinder of parties was also raised by virtue of application under Order I Rule 10 CPC which has been dismissed by the predecessor of this court on 02.07.2012. It is also submitted that the order has attained finality therefore, this issue needs to be stricken of from the issues.
3. Reply was filed by the defendant wherein it was submitted that the Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 7 of 15 Civil Suit no.1202A/14 application was though filed under Order I Rule 10 read with Section 151 CPC by defendant no.3 that he should be deleted from the array of parties as he has no right, title or interest in the suit property however, issues needs to be framed as the coowner from the suit property Mr. Aman Rohtagi has not been made a party to the present suit therefore, it is contended that the suit is bad for misjoinder and nonjoinder of necessary party.
4. I have heard the submissions of both the parties on the present application. The counsel for both the parties argued at length as per the pleadings filed. I have perused the case record relevant for disposal of the application.
5. It can be observed that the issues were framed in this matter on 16.03.2015 wherein issue no.7 was framed that whether the suit is bad for non joinder and misjoinder of parties and the onus was put upon defendant no.3/Mr. K.K. Rohtagi. While perusing the written statement filed by the defendant no.3 it can be observed that it has been contended that defendant no.3 had only notarized Special Power of Attorney of Mr. Aman Rohtagi/coowner for the purpose of getting documents register. However, in para no.7 of the preliminary objection it was categorically mentioned that Mr. Aman Rohtagi/coowner of the property has not been arrayed as a defendant and is a necessary party.
6. Nonetheless, it can be observed that vide order dated 03.01.2012, the plaintiff had submitted that he does not wish to pursue the matter against defendant no.2 and on the statement of Ld. counsel, defendant no.2 who was Mr. Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 8 of 15 Civil Suit no.1202A/14 Aman Rohtagi was deleted from the array of the parties.
7. It is the contention of the defendant that Mr. Aman Rohtagi is a necessary party to the present suit being a coowner of the property. This contention and only be decided once the issue is framed accordingly. Hence, this court does not see any merit in this application for stricking down the issue no.7 rather this issue appears to be arising from the facts controverted by the defendant no.3. The application is accordingly dismissed.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 11.01.2016.
Note: All the four pages of this order have been checked and signed.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 11.01.2016.
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 9 of 15 Civil Suit no.1202A/14 IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South) SAKET COURTS NEW DELHI In the Matter of:
Civil Suit No.1202A/14
1. Sh. Pawan Kumar Jain S/o Sh. O.P Jain R/o 174, First Floor, Sukhdev Vihar, New Delhi110025.
2. Smt. Archana Jain W/o Sh. Pawan Kumar Jain R/o 174, First Floor, Sukhdev Vihar New Delhi110025.
3. Sh. Mayank Jain S/o Sh. Pawan Kumar Jain R/o 174, First Floor, Sukhdev Vihar New Delhi110025.
4. Sh. Rajat Jain S/o Sh. Pawan Kumar Jain R/o 174, First Floor, Sukhdev Vihar New Delhi110025. ............Plaintiffs.
Versus.
1. Smt. Indu Rohatgi W/o Sh. K.K. Rohatgi R/o 174, Second Floor, Sukhdev Vihar Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 10 of 15 Civil Suit no.1202A/14 New Delhi110025.
2. Sh. Aman Rohtagi (Deleted) S/o Sh. K.K. Rohatgi R/o 174, Second Floor, Sukhdev Vihar New Delhi110025.
3. Mr. K.K. Rohatgi R/o 174, Second Floor, Sukhdev Vihar New Delhi110025. ..........Defendants Suit for Recovery of Damages, Permanent and Mandatory injunction.
Application under Order XXVI Rule 9 read with Section 151 CPC for appointment of Local Commissioner.
Order:
The present application has been filed by the plaintiff no.1/applicant seeking that the local commissioner be appointed under whose supervision the plaintiff shall have the over head water tanks inspected, cleaned repaired/maintained as the case may be.
2. Through this application, it is submitted that the vide order dated 26.11.2013, the court had granted the interim injunction in favour of the plaintiff to the following extent:
"...Defendants are restrained from causing any unreasonable hindrance in the ingress and egress or use and enjoyment of common toilet and bathroom attached to the Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 11 of 15 Civil Suit no.1202A/14 servant's quarter on the terrace in smaller area of terrace as shown in the site plan in yellow colour and to afford reasonable opportunity to the plaintiffs at their demand to access the terrace for repairs/inspection of water OHTs of plaintiff and the respective server quarter on the terrace, during the reasonable hours of the day, till the final disposal of the suit."
3. It is the case of the plaintiff put forth through this application that the defendants have not cooperated with the plaintiff and have willfully disobeyed the orders of this court and do not allow the plaintiff to access to the over head tanks. It is also mentioned that the plaintiff has also filed application under Order XXXIX Rule 2 A read with Section 12 the Contempt of Court Acts for willful disobedience. It is also mentioned that on 15.01.2015, the plaintiff no.1/applicant had again requested the defendants to allow him to access the water over head tank for cleaning and maintenance but the reply was sent dated 27.01.2015 mentioning that blank envelopes have been sent to them it is therefore prayed that local commissioner be appointed "to decide the issues in hand and address to the grievance of the parties".
4. On notice, reply was filed by the defendant submitting that the applicant has deliberately concealed that the order dated 26.11.2013 has been modified by order dated 31.03.2014. It was also submitted that the alleged toilet can not be used as common toilet as there is no toilet facility and the alleged bathroom can not be used as a common bathroom and there is no common water and electricity. It was also mentioned that the plaintiffs shifted at the first floor Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 12 of 15 Civil Suit no.1202A/14 about 10 years ago and have been using two small cubicles of defendant terrace floor with an understating that when defendants want to build their third floor they would shift the cubicles on the top terrace but when defendants expressed their will to build the third floor, the plaintiff refused to shift the said servant quarters and therefore, the suit for declaration and possession was filed at Hon'ble High Court by the defendants.
5. It is also mentioned that the plaintiff have also got water level meters fitted in the two water tanks on top terrace after the filing of the suit which were repaired on different dates and the plaintiffs as well as and the members of the their family have been accusing the water tanks on the top terrace. It is denied that any request was received by the defendants for maintenance of over head tanks. It was also mentioned that the plaintiff has two 1000 lts. and three 500 lts over head tank and two under ground water tanks with the capacity of 5000 lts and one over ground capacity of one 1000 lts with four booster pumps therefore, the allegations of application are contended to be incorrect. It is therefore mentioned that the application should be allowed so that the local commissioner can bring on record about the numbers over head tank as well as the other facts about the toilets/additional water tanks etc.
6. I have heard the submissions of both the parties who have argued as per their pleadings taken.
7. It can be observed that the plaintiff no.1/applicant seeks that local Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 13 of 15 Civil Suit no.1202A/14 commissioner be appointed so that maintenance of water tanks can be carried out. On the other hand, the defendant/respondents want the local commissioner to be appointed for inspection of the site to determine number of water tanks and other disputed facts.
8. Considering the facts, it can not be denied that the plaintiff was entitled to maintain the water tanks vide order dated 26.11.2013 and order dated 31.03.2014, the defendants were restrained from causing obstruction in the respondents use of their servant quarters and their overhead water tanks.
9. Now the plaintiff wishes that the function of maintenance of water tanks should be carried out under the supervision of local commissioner however, in the opinion of this court it shall be completely uncalled. To serve the interest of justice, this court is fixing this Sunday i.e. 17.01.2016 at 12.00 P.M. for the repairs and maintenance work of the water tank. Applicant is directed to take appropriate measures before hand for employment of the plumber or other skilled/unskilled labour required for doing the needful within the two day so that, on Sunday i.e. 17.01.2016, over head tank can be repaired and cleaned. The defendants are directed to let the plaintiff get the repair and maintenance work on 17.01.2016 from the 12.00 P.M. till the time the repair work is carried out. The plaintiff is further directed that this repair/maintenance work should be carried out when utmost caution that the the property and the articles if any lying on the terrace belonging to the other people should not be disturbed or damaged. The above Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 14 of 15 Civil Suit no.1202A/14 order be complied with. The application is accordingly disposed of with the above directions.
10. Before parting with this order, in case there is any change of date in carrying out the repair/maintenance work, the same be informed to the court so that the court may refix another date for carrying out the repair/maintenance work.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 11.01.2016.
Note: All the six pages of this order have been checked and signed.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 11.01.2016.
Mr. Pawan Kumar Jain Vs. Indu Rohtagi & Anr. Page 15 of 15