Delhi District Court
Sh. Anand Kumar Aggarwal vs M/S Insulation & Electrical Products ... on 12 March, 2013
IN THE COURT OF MS.RICHA PARIHAR, CIVIL JUDGE06 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS no. 324/10/88
Unique Case ID No. 02401C0004811992
In the matter of:
1. Sh. Anand Kumar Aggarwal
2. Sh. Kamal Kumar Aggarwal
Both sons of Sh. Mahabir Prasad Aggarwal
Both R/o TU4, Pitampura, Delhi110034. ....... Plaintiffs
Versus
1. M/S Insulation & Electrical Products Pvt. Ltd.
30, Shivaji Marg, New Delhi110015.
2. Sh. Raj Kumar Gupta,
S/o Late Lala Jagan Nath Gupta
R/o 2759, Ram Roop Street,
Subzimandi, Delhi110006. .....Defendants
DATE OF INSTITUTION : 22/12/1988
DATE OF RESERVING JUDGMENT : 03/01/2013
DATE OF PRONOUNCEMENT : 12/03/2013
JUDGMENT :This is suit for mandatory and permanent injunction. Brief facts of the case are as follows:
1. Plaintiffs, Sh. Anand Kumar Aggarwal and Sh. Kamal Kumar Aggarwal are the tenants of defendant no. 2 Sh. Raj Kumar Gupta. Originally the tenancy was in name of M/S Industrial Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 1 OF 11 Packers and at that time, father of defendant no. 2, Late Lala Jagan Nath Gupta was the landlord of the premises situated at 30, Najafgarh Road, and after his demise defendant no. 2 became the landlord of this premises and with effect from 01/04/1987 the tenancy was changed in the name of plaintiffs who are in possession of the suit property for last more than 19 years. Plaintiff submits that the tenanted premises comprise of a big tin shed measuring about 110'X18 feet and an office measuring 10'X10 , a loaft above it measuring 28'X18', a cabin measuring about 28.6'X18' and a big hall in the aforesaid tin shed.On the eastern side of the factory, there is a seven feet wide passage and beyond that an open space. Both these passage and open space are in possession of defendant no. 1, M/S Insulation and Electrical Products Pvt. Ltd., who is also a tenant of defendant no. 2 in respect of another portion of premises number 30, Najafgarh Road, New Delhi.
Six windows of plaintiff's factory marked as W8 to W13 open towards the eastern side in the said open passage for about last more that 30 years and plaintiffs had been enjoying free light and fresh air from the aforesaid six windows since the inception of tenancy. Plaintiffs submit that their right to use fresh air and free light from the aforesaid six windows is a substantial right attached with the property under the tenancy of the plaintiffs.
2. On 21/01/1988, defendant no. 1 in collusion of defendant no. 2 had started raising unauthorised construction over the open passage by embedding two iron angles in the eastern wall of the factory shed. Plaintiff submits that defendant is trying to cover the aforesaid six windows by laying a roof of tin sheet over the embedded angles. Regarding this incident, plaintiff reported the police and on their intervention, defendant no. 1 stopped illegal construction, the embedded angles were taken out and the whole dug in the wall were repaired and plastered by defendant no. 1.
Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 2 OF 11
3. On 14/03/1988, defendant no. 1 in collusion with defendant no. 2 started raising unauthorised construction over the open passage to cover the six windows of the plaintiff and had closed window marked W12 with iron sheet. Defendant no. 1 has also fixed a urinal by the side of the window and has put a lot of garbage and waste material in the open passage with the result that bad smell always comes through the windows and rainy water gets blocked and seeps through the wall inside the factory shed endangering the adhesive paper tapes of the plaintiff . Plaintiff has also lodged a report of incident in police station, Moti Nagar on 14/03/1988 and on intervention of the police, defendant no. 1 stopped further illegal construction and assured the plaintiffs that he will remove the iron sheets from the window marked W12 as well as the urinal and garbage from the open passage.
4. On 21/12/1988, defendant no. 1 in collusion with defendant no. 2 had again tried to close the windows marked as W8 to W11 and W13 by covering them with tin sheds. Defendant no. 1 has already laid roof of tin sheets over angle iron in the portion shown in dotted lines in the plan annexed to the plaint. The slope of the tin sheets is towards the plaintiff's factory as a result of which free light and fresh air to the plaintiff's factory have been cut down. Defendant no. 1 has also raised unauthorized construction of room towards the northern side of the open passage and has also blocked the open passage by putting more garbage and waste material there. The exposure of the open space to sun light has been narrowed down due to projection of the tin sheet to the extent of 3' over the 7' wide over the open space. According to Plaintiff's they have a legal right of easement under the Indian Easement Act with respect to the enjoyment of free light and fresh air from the aforesaid six windows mark W8 to W13 and in case, any construction Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 3 OF 11 adjacent to the said windows is made no light and air shall come to the factory premises and the said portion of the factory premises shall be completely dark and unhygienic. The defendants have no right to encroach upon the open passage thereby curtailing the easmentary right of plaintiff. Hence , the plaintiff has filed the present suit praying for following relief from this court:
"Prayer :
a) pass a decree for mandatory injunction in favour of the plaintiffs and against the defendants directing them to remove (i) the Ironsheet from the window marked W12; (ii) urinial adjacent to the window;(iii) the garbage and rubbish stored in open passage, (iv) illegal constructions of the room and tin shed from the premises shown in red colour in the plan annexed to the plaint and situated over a portion of premises bearing MPL no. 30, Najafgarh Road, New Delhi110015.
b) pass a decree of permanent injunction in favour of plaintiffs and against the defendants restraining them, their staff, officers, agents, employees, and workmen etc. from i) closing the windows marked W8 to W11 and W13; ii) raising any unauthorised and illegal constructions adjacent to the eastern wall of the factory shed of the plaintiffs in the open passage; (iii) cutting the inflow of free light and fresh air to the factory premises of the premises in any manner whatsoever; iv) blocking the open passage by putting garbage and rubish etc. in the said passage; (v) from using the urinal illegally Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 4 OF 11 constructed by the defendant no. 1 adjacent to the window and damaging the factory premises of the plaintiffs at 30, Najafgarh Road, New Delhi, more specifically shown in the plan annexed to the plaint;
c) award the costs of the suit to the plaintiffs;
d) pass any other order which this Hon'ble Court deems fit and
proper under the circumstances of the case."
5. Defendant no. 1, M/S Insulation and Electrical Products Pvt. Ltd. in their written statement has submitted that there are two difference tenancies in the name of respective plaintiffs and they are separately paying rent for their respective portions. Defendant submit that there is no open passage in the West as alleged by plaintiff. It is the factory of defendant no. 1 in the West for last 28 years and is under the tenancy of the defendant no. 2. Defendant deny that there is a passage of 7' width and submit that the tenanted premises of plaintiff and factory of defendant no. 1 are immediately adjacent to each other. It is denied that the six windows existed at the time of inception of tenancy of answering defendants. The plaintiffs have illegally opened the said windows towards the premises of defendant no. 1 about 2 to 3 years back and the defendant no.
1 did not object to same to maintain cordial relations with plaintiff. The plaintiffs have opened the said windows without any legal right and it is denied that these windows are in existence for last more than 30 years. Plaintiffs have come into the possession of the tenanted premises much after the tenancy of defendant no. 1 and it is denied that plaintiffs have been enjoying free light and fresh air from the alleged windows since the inception of tenancy in the name of M/S Industrial Packers. In fact the light and air etc. of the plaintiffs factory was from their front side only and by opening the alleged windows towards the eastern side the plaintiffs have invaded the Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 5 OF 11 rights of privacy of defendant no. 1. The defendant no 1 has denied that he in collusion with defendant no. 2 had raised any unauthorised construction over the open passage and has also disputed the correctness of the site plan. It is denied that any of the window was closed by defendant. Defendant submits that any construction/iron angle at the urinal had been in existence since the inception of tenancy and there is no kind of leakage towards the factory of plaintiff. It is also denied that an alleged open passage has been blocked by putting garbage and waste material or that the defendant has raised unauthorised construction of a room towards northern side of the alleged open passage. Defendant has further denied that he has stored considerable building material on spot. The windows in question have been opened by plaintiff illegally and without any legal right and the submission that the factory is left in complete darkness and in unhygienic condition is far from truth as there is sufficient provision of light and air in the factory from front and other sides. Thus the suit of plaintiff is not maintainable and should be dismissed.
6. Defendant no. 2 has objected to the suit of plaintiff on ground that he is not a necessary party as the allegations are concerning defendant no. 1 only. It is submitted that the tenancy of the plaintiff is not single but there are two separate tenancies. Defendant no. 2 denies that there are six windows opening for last more than 30 years towards the eastern side and defendant no. 2 submits that plaintiff's must have made some illegal windows besides additions and alternations. Defendant no. 2 is not having knowledge neither has given any consent to defendant no. 1 for the alleged constructions as alleged by plaintiff however it is denied that plaintiffs have any easementary right in respect of the six windows and it is submitted that plaintiffs cannot claim any right by making illegal addition, alternation or construction in the property in question. Hence the suit of plaintiff should be dismissed.
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7. Plaintiff filed replications to the written statement of defendant no 1 and 2 wherein he has denied the contents of the written statement and reaffirmed the averments of plaint as correct.
8. Evidence brought on record:
Plaintiff no. 2/PW1, Sh. Kamal Kumar Aggarwal had led his evidence by way of affidavit and has relied upon Ex. PW1/1 which is the site plan, Ex. PW1/2 is the report of the incident in police station on 14/03/1998, Ex. PW1/3 is the report of the incident in police station on 21/12/1988, the photographs of the suit premises and their negatives are Ex. PW1/4 to Ex. PW1/15and the original cash memo of M/s J.K. Studio is Ex. PW1/16. The certified copies of the order dated 25/07/1984 in CS No. 987/89 is Ex. PW1/17and the certified copy of the judgment and decree dated 23/02/1996 is Ex. PW1/18 to EX. PW1/21 respectively. Defendant has led evidence by way of affidavit of DW1 Sh. Ashwini Nagpal which is Exhibit DW1/A and has been cross examined by plaintiff.
9. On the basis of pleadings, following issues were framed on 24/04/2002:
(i) Whether the plaintiff has no cause of action to file the suit against the defendant? OPD
(ii) Whether the suit is bad for mis joinder of causes of action as well as of parties? OPD
(iii)Whether the plaintiff is entitled for relief of permanent injunction, as prayed? OPP
(iv)Whether the plaintiff is entitled for relief of mandatory injunction, as prayed? OPP
(v)Relief.
10. The suit is filed within limitation and within the jurisdiction of present court.
11. My issuewise findings are in following order:
Issue no. (i) and (ii):
Whether the plaintiff has no cause of action to file the suit against the defendant? OPD Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 7 OF 11 Whether the suit is bad for mis joinder of causes of action as well as of parties? OPD The onus to prove these two issues was on defendant. There is no sufficient evidence on record to prove that suit is without any cause of action or bad for misjoinder of parties. Thus these two issues are decided in favour of plaintiff and against the defendants. Issue no. (iii):
Whether the plaintiff is entitled for relief of permanent injunction, as prayed? OPP Plaintiff has led the evidence by way of affidavit of PW1, sh. Kamal Kumar Aggarwal who is plaintiff no. 2 in present suit and has been cross examined by Ld. Counsel for the defendant. Defendant no1.In its cross examination PW1 has answered that M/S Industrial Packers came into existence in year 1969 as partnership firm and started its business from suit premises only. The tenancy in favour of M/S Industrial Packers was oral. The plaintiffs were partners of this firm. Later on in year 1987 tenancy was transferred in name of plaintiffs herein as the constitution of partnership was changed.PW1 has stated that the common passage on the eastern and western side of the factory were in existence since year 1969 .
Thus from the testimony of PW1 it is proved that the tenancy in respect of suit premises was in existence since year 1969.It is immaterial if later on two tenancies were created in favour of plaintiffs herein because the suit premises are same and the rights that were available to M/S Industrial Packers, the earlier tenant were transferred jointly in name of plaintiffs herein and it is not required for them to file two separate suits for same cause of action.
DW1, Sh. Ashwini Kumar has been cross examined by the counsel for plaintiff wherein he has admitted that premises in the tenancy of defendant no. 1 is one hall and veranda but submits that he is not knowing the exact area of the said hall. Defendant no. 1 stated to have purchased Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 8 OF 11 the property under his tenancy from defendant no. 2 but has not placed on record any sale deed to show the dimensions under the ownership of defendant no. 1. Defendant no. 1 has denied that there is any common passage 7' wide on the Eastern side of plaintiff's property and submits that same is covered by tin shed. However, in view of the fact that defendant has failed to show the extent of area under his ownership thus it cannot be said that the 7' wide area adjacent to the eastern side of property of plaintiff is not the common passage. The contention of defendant that they allowed said windows to be opened towards common passage due to friendly terms with plaintiff is not maintainable as there is no evidence on record to show that the defendant No.2 (landlord of suit premises) or defendant No.1 ever objected at the first instance when those windows were opened by plaintiff. Plaintiffs have proved that they have been enjoying free light and air through the windows opening towards the common passage since year 1969 .Plaintiff has filed the site plan and the photographs to show that the access to light and air was obstructed by the construction of tin sheds moreover, construction of urinal in the common passage adjacent to the wall and window of factory of plaintiff has resulted in inconvenience and diminishing of the quality of the premises. The plaintiffs have been deprived of wholesome,healthy and safe enjoyment of their tenanted premises due to the constructions and obstructions created by them in the common passage. However from the evidence brought on record it is not proved that defendant no 2 had in any manner colluded with defendant no 1. It is also not proved that defendant No 2 raised or facilitated raising of said unauthorised constructions. Thus this issue is decided in favour of plaintiffs and against the defendant No.1 and the plaintiff are entitled for relief of permanent injunction, as prayed.
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12. Relief :
A decree of mandatory injunction is passed in favour of plaintiff and against the defendant No.1 directing them to remove
(i) the iron sheet from the window marked as W12;
(ii)urinal adjacent to the window;
(iii) Garbage and rubbish if any stored in the open passage;
(iv) Illegal construction of the room and tin shed from the premises shown in red colour in the site plan over a portion of premises bearing Municipal number 30, Najafgarh Road, new Delhi 110015 within three months from the date of decree.
A decree for permanent injunction is passed in favour of plaintiff and against the defendant No.1 and 2 thereby permanently restraining the defendants, their staff, officers, agents etc. from closing the windows marked W8 to W11 and W13.
Defendants are further permanently restrained from raising any unauthorised and illegal construction adjacent to the Eastern wall of the factory shed of the plaintiff in the open passage of 7 feet and defendants are further permanently restrained from cutting the inflow of free light and fresh air to the factory premises of plaintiff.
Defendants are further permanently restrained from blocking the open passage by putting garbage and rubbish etc. in the said passage and from using the urinal constructed by defendant no. 1 adjacent to the window.
Parties to bear their own cost.
Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 10 OF 11 Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in open court on this day 12 March of 2013.
(Richa Parihar) CJ06/Central 12/03/2013 Certified that it contains 11 (eleven) pages signed by me.
(Richa Parihar) CJ06/Central 12/03/2013 Anand Kumar Aggarwal vs. Insulation & Electrical Products CS324/10/88 11 OF 11