Delhi District Court
Rajender Jaina vs . Sanjay Aggarwal & Anr. on 5 March, 2020
IN THE COURT OF MS VANDANA JAIN,
ADDITIONAL DISTRICT JUDGE07 (SE),
SAKET COURTS NEW DELHI
CS No. 149/17
Rajender Jaina Vs. Sanjay Aggarwal & Anr.
[MORE THAN TWELVE YEARS OLD]
In the matter of:
Sh. Rajender Jaina
N52A Connaught Place
New Delhi110001. ...........Plaintiff
VERSUS
1. Sh. Sanjay Aggarwal
B54A, Greater Kailash1
Second Floor, New Delhi110048
Also at
(i) 74, Hemkunt Colony, New Delhi
(ii) 6 Akhnoor Road, Jammu180016
2. The SHO
Police Station, Greater Kailash1,
New Delhi110048 ........Defendants
Date of Institution : 08.02.2008
Date of reserving of judgment : 27.02.2020
Date of Judgment : 05.03.2020
JUDGMENT
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 1 of 77
1. This is a suit for permanent injunction and recovery of money.
2. Brief facts of the case are that the plaintiff is the owner and occupier of 3rd floor alongwith the terrace floor of building no. B54A, Greater Kailash1, New Delhi. The plaintiff has purchased the said portion vide registered sale deed dated 18.05.2006 from the erstwhile owners i.e. M/s Clock Builders Pvt Ltd & Mrs Nikita Trehan. The building was constructed by the builder comprising of the basement, ground floor, 1 st floor, 2nd floor, 3rd floor and terrace.
3. The third floor and the terrace rights have been purchased by the plaintiff alongwith the common areas and facilities like lift etc. There was an unauthorized garage constructed in the building regarding which the Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 2 of 77 plaintiff filed a writ petition before Hon'ble High Court of Delhi.
4. Defendant no. 1 had purchased the 2nd floor of the property and has also allegedly purchased exclusive rights in the unauthorized garage portion, for using the same for the purposes other than parking.
5. Plaintiff at his own cost got installed a lift in the premises as per sanction plan, for a total sum of about Rs. 6,00,000/ from Schindler India Pvt Ltd vide agreement dated 16.05.2006. Defendant no. 1 was informed about the fact that he can also use the lift for his second floor portion subject to his sharing the expenses including the maintenance and running expenses regarding which a proposed MOU was also drafted and talks were held in as much as the letters dated 29.10.2007, 15.11.2007 and 31.12.2007 were Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 3 of 77 also written and exchanged between the parties.
6. It is further averred that defendant no. 1 with his nefarious designs, demolished the portion of the intervening wall between the lift well and one of his rooms, and thus caused damaged to the lift. Plaintiff tried to contact the defendant no. 1 but he refused to talk due to which plaintiff made a complaint dated 17.01.2008 to the defendant no. 2 and temporarily repaired the damage so caused by fixing a wooden plank on the demolished wall. However, defendant no. 1 demolished the balance portion of the wall at the second floor on 23.01.2008 while the security officer of the plaintiff namely Sh. R. S. Dabas was using the lift thereby again stopping the functioning of the lift due to which security officer made a complaint to defendant no. 2. Plaintiff again got a steel frame fitted on the Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 4 of 77 damaged portion costing approx Rs. 20,000/, however, on 31.01.2008, defendant no. 1 again demolished the repaired portion and broke the same with hammers.
7. Hence, this suit. Plaintiff has sought following reliefs: (1) A decree of perpetual injunction be issued in favour of plaintiff and against the defendants thereby restraining the defendant no. 1, his agents, employees etc from causing any obstruction in the repair/maintenance/user/operation of the lift in the premises no. B54A, Greater Kailash1, New Delhi 110048. (2) The defendant no. 2 be directed to ensure compliance and to take all preventive measures as may be necessary towards the peaceful functioning of the lift in the premises no. B54A, Greater Kailash1, New Delhi. (3) The defendant no. 1 be directed to share the proportionate expenses towards installing and regular Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 5 of 77 maintenance of the lift, so as to avail the lift facility (4) Decree for money be passed in favour of the plaintiff to the tune of Rs. 70,000/ for the damages caused alongwith interest @ 18% p.a.
8. Written statement alongwith counter claim on behalf of defendant no. 1 was filed. It is stated therein that defendant no. 1 is the Managing Director of M/s. Skyline Infrastructure Pvt. Ltd having its registered office at 6, Aknoor Road, Jammu180016 and he is a permanent resident of Jammu.
9. The abovesaid company purchased the entire second floor alongwith one servant quarter (8'X6') on the top terrace and one covered car porch (garage) located at ground floor alongwith terrace alongwith proportionate, undivided, indivisible and impartible ownership rights in the property measuring 1000 Sq Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 6 of 77 Yds bearing no. B54A, Greater Kailash1, New Delhi from M/s Clock Tower Builder and Promoters Ltd. And Mrs. Nitika Trihan, the sellers, alongwith M/s. Tirupati Builders, a confirming party vide registered sale deed dated 01.02.2007.
10. M/s Tirupati Builders is the builder who constructed the above property and was under
obligation to complete various jobs under the building contract.
11. A memorandum of understanding was also executed by both the parties whereby the said builder has agreed to complete the following jobs in respect of the portion i.e. second floor sold to M/s Skyline Infrastructure Pvt Ltd:
(i) connectivity/rights of common lift to second floor;
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 7 of 77
(ii) servant quarter to be erected on the top terrace;
(iii) polishing and buffing of railing of common staircase, flooring including texture painting, lighting and glass fittings;
(iv) completion of porch/garage block at ground floor with plastic roofing, electric fittings and connection to second floor;
(v) security spiral staircase at rear including painting and connectivity with second floor.
12. It is further stated that third floor of the property was purchased by plaintiff vide registered sale deed dated 18.05.2006 wherein it is mentioned that :
(a) third floor alongwith complete terrace rights excluding the area of servant quarter with right to construct and own any floor/area of the third floor of the main building and subsequent terraces thereupon and thereabove upto the limits of the sky Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 8 of 77 with rights in common entries, passages, staircase and other common facilities and amenities were sold to the plaintiff.
(b) It is also mentioned that the staircase, borewell, jetpump, passages and other common services in the said portion of the said property shall remain common.
(c) The vendee shall use and enjoy these services and shall also proportionately share the expenses incurred from time to time for the maintenance of the said common services with the other occupants of the said building.
(d) That there shall be no interference on the terrace of any occupants, excluding the area of three servant quarters of lower floors 9each having approx. area of 8'0"X6'0"), if constructed by the vendors/confirming party.
(e) Two servant quarters (of size approx. 8'0"X6'0" each) alongwith common toilet has Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 9 of 77 been provided by the confirming party for the vendee's exclusive use.
(f) That the expenses for the running of the lift in the said building, such as salary of the liftman, periodic maintenance charges, electricity consumption charges etc shall be paid by the owners/occupants of the first floor, second floor and third floor (including terrace) proportionately. Under no circumstances, the occupants of the lower floor be exempted from the proportionate charges for running the said lift and other common maintenance, irrespective of the fact as to whether they are using or enjoying the said facilities or not.
(g) The vendee have placed order for the lift which shall be subsequently installed.
(h) That the confirming party has provided spiral staircase in the rear side of the building from ground floor to top floor for access to all servant quarters on terrace Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 10 of 77 and the access to the same shall not be from the main staircase.
13. It is further stated that in sale deed of M/s Skyline Infrastructure Pvt Ltd in which the defendant no. 1 is the Managing Director it is categorically provided as under: " (a) That the staircase, borewell, jet pump, passages and other common services in the said portion of the said property shall remain common. The Vendee shall use and enjoy these services and shall also proportionately share the expenses incurred from time to time for the maintenance of the said common services with the other occupants of the said building
(b) That the Vendee shall have, as a matter of right, the right to use all entrances, common lift facility, passages, staircases upto terrace, their own servant quarters, and toilet, driveway, parking, and Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 11 of 77 other common facilities as are available in the said building.
(c) That the owner of the Basement shall not be allowed to install any Air Conditioner, Exhaust, Generator and openable windows etc. in the Northern side Driveway (adjacent to property No. B54). The Vendee shall have two reserved car parking inside Driveway on the right (north facing) side shall be exclusive for the upper floors. Left side driveway of the main building, however, shall be reserved for Ground and Basement Floors.
(d) That the confirming party have provided area on the Ground Floor (rear set back portion) (as shown in the annexed plan) which shall be used for installing the Genset etc for power backup of Second Floor and for lift (map attached.)
(e) One servant quarter space (of size approx. 8'0"x6'0") alongwith common toilet Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 12 of 77 has been provided on the terrace of the Third Floor (as per map annexed) by the confirming party for the exclusive use of the Vendee.
(f) That the expenses for running of the
lift shall be borne and paid by the
occupants/owners of the said building if used by them.
(g) That the Vendee shall have the right to install Dish Antennas etc. on the roof of servant quarters.
(h) That the confirming party has provided spiral staircase as fire escape and emergency exit in the rear side of the building from Ground Floor to top floor which shall also be used as an access to all servant quarters on terrace in addition to the access provided from the main/common staircase."
14. It is further stated in the written statement that contract for installing the lift was given by the builder Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 13 of 77 to M/s Schindler (P) Pvt Ltd and expenses were also taken up by the builder proportionately from the defendant no. 1 company at the time of sale deed in the consideration amount and after installation, a cheque bearing no. 39862 dated 24.04.2007 for Rs. 5000/ was also given to M/s Schindler (I) Pvt Ltd by defendant no. 1 towards cost of service charges. It is further stated that plaintiff has incontravention of the contract made following breaches:
(i) Plaintiff has locked the main staircase entry to terrace, servant quarter, water tanks, lift machine, room etc.
(ii) Plaintiff has blocked the fire escape and access to servant quarter through spiral staircase;
(iii) water supply is disconnected to second floor from water tanks on the terrace;
(iv) create hindrance and obstruction to the Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 14 of 77 common passage and common services like staircase, lift, use of water tanks, erection of servant quarters, use of spiral staircase by blocking them;
(v) erected a cell tower on the terrace of the third floor without NOC from the concerned authorities, RWA and the floor owners/occupants of the above property;
(vi) installed heavy duty genset on the terrace which creates vibrations and effect the stability and strength of the building and also nuisance to the occupants of the building;
(vii) tresspassed the covered car porch
area belonging to the defendant no. 1 by
digging pit for earthing and cable
connection for illegal cell tower at the
terrace;
(viii) raised illegal construction on the
third floor against the sanctioned plan
especially by constructing kitchen.
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 15 of 77
(ix) demolished the rear boundary wall on the ground floor where the garage block of the defendant was situated.
15. It is further stated that due to unlawful activity of the plaintiff, defendant no. 1 is residing in Jammu and could not shift from Jammu to Delhi and could not seek admission of his children in Delhi in the last academic session.
16. It is further stated that suit is liable to be dismissed on account of nonjoinder of the parties as builder and the lift maker has not been made party to the suit.
17. Defendant has denied having cause any damages to the lift well on 16.01.2008 or stopping the operation of the lift on that date or further on 17.01.2008, 23.01.2008 and 31.01.2008. It is further stated that Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 16 of 77 defendant no. 1 had never come to occupy his portion on the second floor because of the above said breaches and on the aforesaid dates, defendant no. 1 was at Jammu and had never visited Delhi on said dates.
18. It is further stated that plaintiff had been harassing the defendant for one reason or the other as already mentioned above and upon hearing the parties Hon'ble Court was pleased to pass following order: "The plaintiff shall remove the blockage from the spiral staircase and shall permit the defendant to use the main staircase for going to the roof for the purpose of seeing and cleaning the water tank and for servant quarter, if any and he shall remove the blockage put by him on the garage block of the defendant. The plaintiff is permitted to repair the wall of the well of the lift at his own cost, defendant will not interfere Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 17 of 77 the running of the lift."
19. It is further stated that on 31.03.2008, counsel for defendant received a letter dated 28.03.2008 from the plaintiff for giving permission to repair the well of the lift in presence of the defendant or representative of defendant. Since defendant was in Jammu, therefore, counsel for defendant requested the plaintiff to do the needful on 03.04.2008 and by that time defendant would send the representative. It was also requested that simultaneously plaintiff should also comply with the orders of the court by removing all the blockages from the common passages and staircase but plaintiff instead of complying with the above order removed the rear boundary wall of the garage block which effected the security of the property and the passages leading the accommodation of the defendant, the representative Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 18 of 77 of the defendant started repairing the boundary wall. The representative of the defendant also requested the plaintiff to remove all the blockages from the passages including staircase and spiral staircase but he refused and threatened the representative of the defendant for dire consequences and false complaint was made by plaintiff before local police and plaintiff has trespassed over the area of the defendant in the garage block by keeping temporary gate on the said wall which was got removed by him so that the defendant could never use and occupy the same. Plaintiff also digged a huge pit for earthing in the garage block which is owned by defendant.
20. It is further stated that builder has informed the plaintiff that 2nd floor of the property including car garage on the ground floor has been purchased by Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 19 of 77 defendant no. 1 company. It is denied that plaintiff had got installed the lift at his own cost for sum of Rs. 6,00,000/. Defendant has denied that he was informed of the fact that he can also use the lift for 2 nd floor subject to sharing expenses including maintenance and running expenses proportionately regarding which MoU was drafted and talks were held and letters dated 29.10.2007, 15.11.2007 and 31.12.2007 was also written and exchanged between the parties.
21. Defendant no. 1 also denied the demolishing of portion of intervening wall between lift well and one of his rooms and causing damage to the lift well. He has further denied the alleged incident dated 23.01.2008 or plaintiff again got a steel frame fitted on the damaged portion costing approx Rs. 20,000/ and defendant no. 1 again demolished the repaired portion. It is denied Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 20 of 77 that plaintiff had suffered any mental agony to the tune of Rs. 50,000/. It is further stated that suit of the plaintiff is not maintainable and same is liable to be dismissed.
22. Alongwith written statement, counter claim was also filed by defendant on the basis of aforesaid pleadings and following reliefs were sought:
(a) dismiss the suit of the plaintiff with costs;
(b) allow the counter claim of the defendant by passing a decree of permanent injunction against the plaintiff, its associates, agents, servants and assignees from causing any obstruction and hindrance in the common spaces and passages including the staircase going from ground floor to the terrace of the third floor, use of servant quarters and its construction, use of water tanks over the third floor for supply of water to Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 21 of 77 the second floor, use of spiral staircase, use of car garage and from using the cell tower as well as the genset installed over the terrace of the third floor of the property no. B54A, Greater Kailash1, New Delhi and from obstructing the defendant from repairing the rear boundary wall of the above property for its security;
(c) pass a decree of mandatory injunction thereby directing the plaintiff to remove the cell tower and the genset installed on the terrace of the third floor of property no. B54A, Greater Kailash1, New Delhi.
23. Replication to the written statement/reply to counter claim of the defendant was filed by plaintiff wherein facts stated in the written statement were denied except for covenants mentioned in the sale deed of the parties.
It is stated in the replication that builder has Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 22 of 77 committed fraud with the defendant as conflicting covenants have been incorporated in the sale deed of the defendant for which builder had no right or authority with respect to certain portions regarding which previous registered sale deed was already executed in favour of plaintiff.
24. It is stated that with such kind of defective sale deed executed in favour of defendant no. 1, the dispute between the parties is bound to occur, however, defendant no. 1 has a remedy against the builder but it cannot jeopardize the rights and interest which were conferred on the plaintiff by virtue of registered sale deed in his favour, executed prior to the sale deed of the defendant no. 1.
25. It is also stated that lift was installed in the premises by plaintiff by paying sum of Rs. 5,95,000/ to Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 23 of 77 M/s Schindler India Pvt Ltd. It is a sanctioned lift, however, defendant mischievously damaged and made it nonfunctional by removing its wall from his drawing room at the second floor, which is intervening wall between the lift well and his room. The said mischief was done so as to deprive and harass the plaintiff and his family members in order to make him succumb to his illegal demands and pressures.
26. It is submitted that as far as compliance of the plaintiff qua the order dated 26.03.2008 is concerned, it is to state that the entrance of the spiral staircase is available and even the main staircase can be permitted for going to the roof for the only purpose of seeing/cleaning the water tank. However, the same has to be done with prior notice, and the defendant has never been denied such access.
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 24 of 77
27. In fact there exists no garage door or even garage at the site and the same is only a covered car porch which is common area to be used by all residents as is provided in the sanctioned plan. Admittedly the shutter of the alleged garage was removed/demolished by the MCD, much earlier. There is no provision of garage in the sanctioned plan and even otherwise. Separate contempt proceedings are already pending and the defendant cannot use present suit proceedings for constructing the garage, which is otherwise prohibited, and is unauthorized.
28. The cellular antenna installed at the roof top is with the permission of the MCD authorities and necessary charges for a sum of Rs. 1,00,000/ stands already deposited by M/s Idea Cellular Ltd independently with the MCD. The genset which is Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 25 of 77 required for the operation of that cell tower do not have any sound/vibration as alleged. It is only a nominal genset without any adverse effect, having capacity of 15 KVA which is less than normal domestic requirement. However, as per procedure, M/s Idea Cellular Ltd have installed the same only after obtaining structure/stability certificate of the IIT. Even otherwise the plaintiff is personally occupying the third floor and the terrace and had there been any vibration, the plaintiff would have been the first person affected in as much as that it is the roof of the bedroom of the plaintiff where the said genset is installed and there is absolutely no sound or vibration even on third floor, whereas the defendant is at second floor and is raising this plea in a frivolous manner. On the contrary the ground floor bank has installed a genset of 120 KVA in Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 26 of 77 an illegal manner, in collusion with the builders. Rest of the contents of the written statement were denied and contents of the plaint were reiterated.
29. After completion of the pleadings, following issues were framed by Hon'ble High Court vide order dated 20.01.2009.
1. Whether the defendant is entitled to the use of the elevator installed at the cost of the plaintiff and if so in what proportion are the costs of installation and the costs of operation/maintenance are to be borne by the parties? OPP
2. Whether the passages claimed to be common by the defendant are for the common use of the plaintiff and the defendant ? OPD.
3. Whether the defendant has any right to access of water tanks on the terrace above the 3 rd floor and if Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 27 of 77 so in what manner ? OPD.
4. Whether there is any car garage in the property and if so where and whether the defendant is entitled to any relief qua the plaintiff with respect to the same.
5. Whether the defendant is entitled to object to the installation of the genset and the cell tower by the plaintiff on the terrace above the 3rd floor?
30. The Hon'ble High Court did not put the matter for evidence and straightway listed it for arguments. But after few dates it was again listed for PE. The matter was thereafter sent to District Courts due to enhancement of pecuniary jurisdiction.
31. Plaintiff examined himself as PW1.
32. PW2 is Sh Dal Chand, Record Keeper, Building Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 28 of 77 Department, South Zone, Green Park, New Delhi.
33. Plaintiff also examined PW3 (wrongly mentioned as PW2) Sh Maneesh Rastogi, Chief General Manager from National Highway Authority of India (NHAI) but he was partly examined, therefore, his examination cannot be read in evidence.
34. Plaintiff also examined Sh. Rahul Leela, Business Development Manager, Schindler India Pvt Ltd as PW
3.
35. Plaintiff also examined Sh. Ram Kumar, Office Incharge, Building Department, Central Zone, Lajpat Nagar as PW4.
36. Thereafter, PE was closed.
37. Thereafter, matter was listed for defendant's evidence. Defendant examined himself as DW1. Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 29 of 77 Thereafter, DE was closed.
38. Thereafter, matter was listed for final arguments.
39. Ld. Counsel for the plaintiff has argued that plaintiff is the owner of the third floor of the suit property with full terrace rights excluding servant quarters for the occupants of the lower floors as per plaintiff's sale deed dated 18.05.2006. It is further argued that as per sale deed, the expenses for running the lift were to be borne by owners of the occupants of all the floors irrespective of fact whether they are using or enjoying the facility of lift or not.
40. It is further argued that in the sale deed of the plaintiff, driveway was to be common and no garage was mentioned therein and, therefore, plaintiff has the right to use the common driveway and take his car out from the gate in the rear portion which is opened on Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 30 of 77 the backlane. Ld counsel for plaintiff has further argued that defendant no. 1 has a subsequent deed dated 01.02.2007 with the builder with respect to 2 nd floor of the property where inconsistent covenants to that sale deed of the plaintiff have been mentioned. It is further argued that though in the sale deed of the plaintiff driveway was said to be common facility, however, in the defendant's sale deed an unauthorized garage was sold to the defendant alongwith 2 nd floor and one servant quarter on terrace.
41. Ld counsel for plaintiff has further argued that in the sale deed dated 18.05.2006, the alleged garage is mentioned as a common driveway/car porch. It is mentioned in the internal page no. 39 of the sale deed of plaintiff, it is mentioned that "the plaintiff shall have as a matter of right, the right to use all entrances, Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 31 of 77 passages, staircases, his own servant quarters and toilets, driveway, parking and other common facilities as are available in the said building".
42. It is argued that the defendant is trying to take advantage of the covenant mentioned in the internal page no. 11 of the subsequent sale deed of 01.02.2007 covered car porch on ground floor (garage located at ground floor) was sold but rights of the plaintiff cannot be put to prejudice by such subsequent conflicting covenants and defendant has been completely defrauded by the builder in this regard.
43. It is further argued that alleged garage was unauthorized and without any sanction. He has further argued that plaintiff has filed a writ petition before Hon'ble High Court of Delhi against builder with respect to unauthorized garage and same has been demolished Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 32 of 77 now. With regard to rear boundary wall, it is argued that the same was also demolished by MCD as confirmed in reply to RTI dated 22.07.2008 Ex PW1/19. The gate/door existing in the rear boundary wall is permissible and the said positions is confirmed by the MCD in reply to RTI dated 21.07.2008, Ex PW1/20.
44. Ld counsel for plaintiff further argued that in the covenant regarding the lift in the sale deed of the defendant, it is mentioned that expenses for running the lift shall be borne by owners/occupants of the said building if used by them which is contradictory to the covenant in the sale deed of the plaintiff. Ld counsel for plaintiff has further argued that rights of the plaintiff cannot be put to prejudice by said subsequent conflicting interest. Even otherwise, defendant cannot Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 33 of 77 be allowed to use the lift free of charges towards maintenance and installation. Ld counsel for plaintiff has further argued that in the sale deed of the plaintiff it is mentioned that access to the servant quarters shall be through spiral staircase whereas in the sale deed of the defendant it is mentioned that access to the terrace shall be through spiral staircase in addition to the common staircase and this covenant is also conflicting. Ld counsel for plaintiff has argued that now the spiral staircase has been removed by SDMC and it is not in existence. He has further argued that servant quarters for which the occupants of the lower floors required the access to the terrace are also no more as they have been demolished by MCD. He has further argued that access to terrace is only required for cleaning water tanks and, therefore, he is agreeable to said permission to access Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 34 of 77 the terrace, however, on giving a prior notice to the plaintiff so as to remain available on the date fixed. Ld counsel has further argued that defendant has been completely defrauded by the builder, however, this cannot be ground for putting the rights of the plaintiff to prejudice by such subsequent conflicting covenants in the sale deed of the defendant. Ld counsel for plaintiff has further argued with respect to rear boundary wall that same was demolished by MCD as confirmed in the RTI reply dated 22.07.2008, Ex PW1/19 and gate/door existing in the rear boundary wall is permissible as confirmed by RTI reply dated 21.07.2008, Ex PW1/20.
45. With respect to installation of genset and cell tower by plaintiff upon terrace, Ld counsel for plaintiff has argued that before installation of cell tower, M/s Idea Cellular has sought permission from the MCD Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 35 of 77 authorities and even deposited Rs. 1,00,000/ to MCD. Ld counsel for plaintiff has further argued that genset which is required for the operation of the cellular tower do not have any sound and vibration and cellular company has installed the same only after obtaining the structural stability certificate. He has further argued that if there had been any vibration, plaintiff would have been first sufferer as he alongwith his family is residing on the third floor i.e. just below the terrace and, therefore, this plea is not maintainable. Ld counsel for plaintiff further argued that none of the reliefs sought by defendant in the counter claim can be granted, however, on the other hand plaintiff has successfully proved that he had paid entire cost of installation of lift exclusively and he is entitled to recover the proportionate cost alongwith recurring Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 36 of 77 expenses of lift towards maintenance from the defendant no. 1 as per his sale deed. He further argued that official of defendant no. 1 at his instructions had demolished the portion of the intervening wall between lift well and one of his room on the 2 nd floor and caused damages to the lift well in order to stall the functioning of the lift and the lift was stopped. It was temporarily repaired but was again demolished and several complaints were made by security officer of the plaintiff to PS Greater KailashI and even after that lift was stopped and finally plaintiff had to incur cost of Rs. 20,000/ for getting steel frame fitted on the damaged portion which was also broken and appropriate proceedings were initiated before Ld Magistrate. Ld counsel for plaintiff has further argued that plaintiff is entitled to recover Rs. 20,000/ towards cost incurred Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 37 of 77 on the steel frame and Rs. 50,000/ on the mental agony and harassment suffered by plaintiff and his family members at the instruction of the defendant no.
1. Ld counsel for plaintiff has further argued that defeated no. 2 who is SHO be directed to take preventive measures towards peaceful functioning of the lift and decree of perpetual injunction be passed against defendant no. 1 for causing obstruction in the repairing/maintenance of the lift premises.
46. On the other hand, Ld counsel for defendant no. 1 has argued that defendant no. 1 is Managing Director of M/s Skyline Infrastructures Pvt Ltd and company of defendant no. 1 had purchased the 2 nd floor alongwith one servant quarter on the terrace and one covered car porch/garage at ground floor from the builder vide registered sale deed dated 01.02.2007. It is further Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 38 of 77 argued that alongwith sale deed MoU of same date was executed between builder and defendant no. 1 to complete some of the jobs as given in the said MoU. He has further argued that suit is bad for nonjoinder of the builder and lift company. He has further argued that defendant no. 1 had already borne cost of the lift as it is included in the sale consideration amount. He has further argued that several complaints were made by plaintiff against defendant no. 1. It is further argued that defendant no. 1 had never occupied his portion because of the breaches done by plaintiff. He further argued that on the alleged date of complaint moved before SHO PS G.K.1, he was in Jammu. He further argued that lift was installed by builder and he has also given cheque bearing no. 39862/ dated 24.04.2007 of Rs. 5000/ to the lift company M/s Schindler (I) Pvt Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 39 of 77 Ltd. He further argued that cellular tower could not have been installed on the terrace without permission of the occupants of the different floors and he has filed letter issued by other occupants of the other floors showing that no such permission has been taken. Ld counsel for defendant further argued that electromagnetic radiations were emitted by the cell tower which are harmful to the residents therein. He has further argued that garage was given to the defendant no. 1 as per the sale deed dated 01.02.2007 in his favour. He further argued that he is not liable to pay any installation cost towards lift but he is ready to pay the maintenance charges as and when raised by plaintiff. He further argued that as per the sale deed of the defendant no. 1, right to access the terrace from common staircase as is clearly stated in his sale deed, Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 40 of 77 however, plaintiff had unauthorizedly put an iron gate in order to stop the defendant no. 1 from accessing the terrace. He has further argued that gate on the rear side of the ground floor is illegal and same be removed and defendant no. 1 be allowed to repair the rear boundary wall for security purpose.
47. I have heard the arguments and have perused the record as well as written submissions filed by both the parties carefully.
48. I shall dealt with the issues one by one.
49. Before dwelling upon the issues framed in the present case, it is necessary to reproduce certain covenants in the sale deed of the plaintiff and that of the defendant in order to determine the issues.
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 41 of 77 Page & Sale Deed of Plaintiff Page & Sale Deed of Defendant no. 1 Para No. Para No. Para The Vendors have also 3rd para AND WHEREAS the Vendors, continue of executed a General Power of through attorney, for their bonafide d from internal Page No Attorney dated 15/9/04 in page no. needs and requirements have 21 to 22 11. favour of Shri Ajay Bharti, agreed to sell, convey, transfer and Shri Sanjay Bhatia, Shri assign to the Vendee to which the Ashwini Anand and Shri Vendors hereby confirm and the Abhinav Anand, in respect of Vendee has agreed to purchase the entire third floor with terrace Entire Second Floor with common excluding the area of servant lift facility alongwith one servant quarters with right to quarters (8'x6' each) on the top construct and own any terrace and one covered car porch area/floor on the third floor of on Ground Floor (Garage located at the main building and terrace Ground Floor alongwith Terrace thereupon and subsequent Rights upto sky as per plaint terraces thereupon and annexed) (duly sanctioned vide C.C. thereabove upto the limits of No. File No. 44/CC/B/52/05 dated Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 42 of 77 sky alongwith proportionate 17.11.2004) alongwith undivided, indivisible and proportionate, undivided, indivisible impartible ownership rights in and impartible ownership rights in the said plot of land the said plot of Land measuring measuring 1000 Sq Yds 1000 Sq Yds, bearing no. B54A bearing no. B54A, situated at situated at Greater Kailash Part1, Greater Kailash Part1, New New Delhi, with all rights, title and Delhi which has been duly interest, easements, privileges and registered as document no. appurtenances thereto, with all 112798, in Addl. Book No. IV, fittings, fixtures, connections, Vol. No. 6159 on pages 184 to structure standing thereon, with all 190, on 15/9/04, in the office rights in common entrances, of Sub Registrar, Pitampura, passages, staircase and other New Delhi. common facilities including common lift facility and amenities provided therein, hereinafter referred to as 'The said Portion' of the said property for a total Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 43 of 77 consideration of Rs. 71,00,000/ (Rupess Seventy One Lacs only) Para AND WHEREAS the continue Vendors/have represented d from Page No that the Vendors/have full 23 to 24. right and absolute authority to sell and transfer the portion under sale in any manner. AND WHEREAS the Vendor through attorney for their bonafide needs and requirements have agreed to sell, convey, transfer and assign to the Vendee to which the Vendor hereby confirm Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 44 of 77 and Vendee has agreed to purchase the entire third floor with complete terrace and terrace rights (excluding the are of servant quarters) with right to construct and own any area/floor on the third floor of the main building and subsequent terraces thereupon and thereabove upto the limits of the sky, alongwith proportionate undivided, indivisble and impartible ownership rights in the said plot of land measuring 1000 Sq Yds bearing no B54A, situated at Greater Kailash Part1, New Delhi with all Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 45 of 77 rights, title and interest, easements, privileges and appurtenances thereto, with all fittings, fixtures, connections, structures standing thereon, with all rights in common entrances, passages, staircase and other common facilities and amenities provided therein, hereinafter referred to as 'The said Portion' of the said property for a total consideration of Rs. 1.36 crores. 1st para That no common parts of the Para no. That no common parts of the of 9 of building will be used by the building will be used by the vendee internal internal Page no. Vendee or other page no. or other owners/occupants of the 37. 17 Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 46 of 77 owners/occupants of the said said building for keeping/chaining building for keeping/chaining pets, dogs, birds or for storage of pets, dogs, birds or for storage cycles, motorcycles except for of cycles, motorcycles except parking of vehicles wherever for parking of vehicles specified nor the common passage wherever specified nor the shall be blocked in any manner. common passage shall be blocked in any manner. Para That the staircase, borewell, Para no. That the staircase, borewell, jet continue 12 of jetpump, passages and other pump, passages and other common d from internal
internal common services in the said page no. services in the said portion of the Page No 18 38 to 39. portion of the said property said property shall remain common.
shall remain common. The The Vendee shall use and enjoy Vendee shall use and enjoy these services and shall also these services and shall also proportionately share the expenses proportionately share the incurred from time to time for the expenses incurred from time maintenance of the said common to time for the maintenance of services with the other occupants of Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 47 of 77 the said common services with the said building. the other occupants of the said building.
2nd Para That the Vendee shall have, as Para no. That the Vendee shall have, as a matter of of 13 of right, the right to use all entrances, a matter of right, the right to internal internal common lift facility, passages, staircase page no. use all entrances, passages; page no.
39. 19 upto terrace, their own servant quarters staircases; his own servant and toilet, driveway, parking, and other quarters and toilet; driveway;
common facilities as are available in the parking; and other common said building. facilities as are available in the said building.
3rd para That there shall be no Para One servant quarter space (of size
of no. 21,
interference on the terrace of approx. 8'0"x6'0" each) alongwith
interna 22 and
any occupants, excluding the common toilet has been provided on
l page 23 of
no. 42. area of three servant quarters interna the terrace of the Third Floor (as l page of lower floors (each having per map annexed) by the confirming no. 22 approx. area of 8'0" * 6'0"), if party for th exclusive use of the constructed by the Vendee.
Vendors/Confirming Party. That no occupant of the Lower Floor Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 48 of 77 shall have any right to put or install any Genset etc on the terrace of the said portion of the said property.
That the expenses for running of the
lift shall be borne and paid by the
occupants/owners of the said
building if used by them.
3 rd
Para That the expenses for the
continue
running of the lift in the said
d from
Page No building, such as salary of the 43 to 44.
liftman, periodic maintenance
charges, electricity
consumption charges etc shall
be paid by the
owners/occupants of the first
floor, second floor and third
floor (including terrace)
proportionately. Under no
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 49 of 77
circumstances, the occupants
of the Lower Floor be
exempted from the
proportionate charges for
running the said lift and other
common maintenance,
irrespective of the fact as to
whether they are using or
enjoying the said facilities or
not. The Vendee have placed
order for the lift which shall
be subsequently installed.
1 st
Para That the Confirming Party has Para no. That the Confirming party has
of Page 28 of
provided spiral staircase in the provided spiral staircase as fire
No 46 internal
rear side of the building from page no. escape and emergency exist in the 24 Ground Floor to top floor for rear side of the building from access to all Servant Quarters Ground Floor to top floor which on Terrace and the access to shall also be used as an access to all Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 50 of 77 the same shall not be from the Servant Quarters on Terrace in main entrance. addition to the access provided from the main/common staircase.
50. It is a matter of record that car porch/garage on the ground floor, servant quarters on the terrace and spiral staircase at the rear side of the property has been demolished/removed by MCD and there is no dispute to the said fact in view of the replies to the RTI which are Ex PW1/15, Ex PW1/19, Ex PW1/20. It is also proved on record by the aforesaid replies that no permission is required to construct a gate in the rear boundary wall provided there exists service lane. This is clearly mentioned in RTI reply Ex PW1/20. It is not disputed Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 51 of 77 that there is a back lane.
51. With this background of facts, I shall proceed to decide the issues before me.
52. Issue No. 1. Whether the defendant is entitled to the use of the elevator installed at the cost of the plaintiff and if so in what proportion are the costs of installation and the costs of operation/maintenance are to be borne by the parties? OPP
53. Plaintiff has filed the documents on record to show that cost of lift was borne by him and further lift license is in his name. Original license of the lift showing that it is in the name of the plaintiff is Ex PW1/12. Even in the clause at internal page no. 43 of Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 52 of 77 sale deed of plaintiff, it is specifically mentioned that vendee (plaintiff) have placed order for the lift which shall be subsequently installed. It is pertinent to mention here that witness from the lift company i.e. M/s Schindler (P) Pvt Ltd has deposed in the present case and had clearly proved that lift was installed by plaintiff. However, at the same time in the entire sale deed of the plaintiff, it is not mentioned that expenses incurred in the installation of the lift have to be shared by the occupants of other floors. It is only mentioned in the same clause on page no. 43 of the sale deed of plaintiff that expenses for running the lift such as salary of liftman, periodic charges, electricity consumption charges shall be paid by the occupants of all the floors irrespective of the fact that whether they are using or enjoying the said facility or not. Though, plaintiff in the Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 53 of 77 plaint has alleged that defendant had neither paid anything towards cost nor towards maintenance despite having several correspondences between each other, however, during the cross examination of PW1, it has clearly come on record that PW1 has admitted having received some payments towards the maintenance from the defendant no. 1 as and when asked for. It has also come in the evidence that no separate invoice has been filed on record which could show that plaintiff had raised any demand from defendant no. 1 towards running expenses of the lift and defendant failed to pay the same. Since the lift license is in the name of the plaintiff, the maintenance charges and the electricity consumption charges would certainly be in the name of the plaintiff only and it is plaintiff who would be making further demands from the defendant no. 1 Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 54 of 77 thereafter regarding these running expenses. However, since no such invoice is on record, plaintiff is not entitled to recover anything as of now either towards the cost of the installation of the lift or towards maintenance for the periods prior to the filing of the suit or during the pendency of the suit. It is also pertinent to mention here that in the sale deed of the defendant, it is mentioned that defendant is liable to pay only if he is using the lift. In the written submissions filed by defendant, it has come on record that he is paying the electricity consumption charges for the lift regularly and is ready to pay the same in future. Even otherwise, it is clarified that sale deed of the plaintiff is prior in time wherein his rights were crystallized and, therefore, any conflicting covenants in the sale deed of the defendant to that of the plaintiff Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 55 of 77 cannot be read in a manner which is prejudicial to the rights of the plaintiff. It is also pertinent to mention here that defendant had failed to seek any declaration qua sale deed of the plaintiff to the extent of existence of conflicting covenants in both the sale deeds. Therefore, it is held that defendant is entitled to use the lift, however, he is not liable to pay the cost of installation and cost of maintenance which has not been sought. Defendant is only liable to pay as and when demand for running expenses of the lift are made by plaintiff. Therefore, issue no. 1 is decided accordingly.
54. Issue No. 2. Whether the passages claimed to be common by the defendant are for the common use of the plaintiff and the defendant ? OPD.
and Issue No. 3. Whether the defendant has any Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 56 of 77 right to access of water tanks on the terrace above the 3rd floor and if so in what manner ? OPD.
55. Issue no. 2 & 3 being interrelated are taken up together.
56. In first paragraph on internal page no. 37 of the sale deed of the plaintiff, it is clearly mentioned that no common passage shall be blocked by plaintiff in any manner. On page no. 38 in the last paragraph, the area which have been termed as common have been clearly mentioned and they are staircase, borewell, jetpump, passages and other common services in the said portion. Similarly in the sale deed of the defendant, clause no. 9 & 12 imposes same restriction and give some facilities to the defendant no. 1 and clearly shows that staircase was to remain common. In view of these clauses, it is Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 57 of 77 clear that staircase is common, however, Ld counsel for plaintiff has argued that servant quarters on the terrace have already been demolished by MCD and now plaintiff is having the ownership right on the full terrace and defendant has no business to access terrace except for cleaning water tanks. As per para no. 1 of internal page no. 46 of the sale deed of the plaintiff : "That the confirming party has provided spiral staircase in the rear side of the building from Ground Floor to top floor for access to all Servant Quarters on Terrace and the access to the same shall not be from the main staircase."
57. However, in the sale deed of the defendant, a contrary clause no 28 has been given wherein the access from the spiral staircase is given in addition to the main/common staircase.
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 58 of 77
58. Ld counsel for plaintiff has argued that since his sale deed is prior in time, therefore, conflicting covenants of the sale deed of the defendant no. 1 cannot be implemented and the plaintiff's right cannot be prejudiced.
59. In this regard, it is stated that all the clauses of the sale deed have to be read together and in harmony and none of the clause in the sale deed of any of the parties cannot be read in isolation to the exclusion of other covenants in the sale deed of the both parties. It is very much clear that staircase is common facility for all the occupants as discussed above and, therefore, clause on page no. 46 of the sale deed of the plaintiff shows that access to the servant quarters shall be only from spiral staircase and not from common/main staircase cannot be read in a manner that the occupants of the Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 59 of 77 lower floor are denied access to the common staircase eventually leading to the terrace. The reading of the said clause clearly shows that said clause was put for the servants to access their servant quarters on the terrace through the spiral staircase and not from the common staircase. It is pertinent to mention here that spiral staircase has already been removed by MCD which has come in the evidence of the plaintiff himself. Therefore, the defendant being the legal owner of the 2nd floor of the same building cannot be denied access to the terrace even though the servant quarter is not in existence but he has right to approach his water tanks. In sale deed of the plaintiff himself, it is clearly mentioned that plaintiff shall have full ownership right on the terrace except for the area earmarked for the three servant quarters meant for lower floors and it is Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 60 of 77 also clearly stated that occupants shall be having a right to access their water tanks. Even the lower floor occupants were given right to put dishantenna on their servant quarters. Therefore, by no stretch of imagination, plaintiff can claim exclusive rights over the staircase from third floor of the leading to the terrace. Though, he is owner of 3rd floor and as well as substantial part of the terrace but staircase shall remain common. PW1 has admitted during his cross examination that he had installed the concrete staircase from inside the 3rd floor to the terrace. It is pertinent to mention here that entire sale deed of the plaintiff is silent about this fact that at the time of execution of the sale deed by builder in favour of the plaintiff, staircase from 3rd floor leading to the terrace was personalized. He stated during his cross examination that he did not Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 61 of 77 remember whether at the time of purchasing the third floor, the said staircase was not a part of sanction plan. There are certain photographs on record though they have not been exhibited but they are in tune with testimony of PW1 himself showing that how a channel gate has been installed at the third floor obstructing the access of the staircase from 3rd floor till terrace which is already admitted by plaintiff in his cross examination. Even in his written submission, plaintiff has stated that he is ready to give permission to access to the defendant to the terrace through common staircase for cleaning of water tank subject to prior notice/permission of plaintiff. Since this is common staircase, it is meant for the common use of the plaintiff and the defendant and he has no right to install such a gate over it. Therefore, it is held that passages claimed Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 62 of 77 to be common i.e. staircase herein is available for the common use of both the plaintiff and the defendant. Since the obstruction has been created during the pendency of the suit itself, plaintiff is directed to remove the same.
60. In view of the discussion made above, it is also opined that defendant has a right to access the water tanks on the terrace above the third floor without seeking any prior permission from the plaintiff. In case plaintiff is found to have locked the door/gate, a duplicate key shall be handed over to defendant to access the terrace or else there shall be no lock on the same. Accordingly, issue no. 2 & 3 are decided accordingly.
61. Issue No. 4. Whether there is any car garage in Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 63 of 77 the property and if so where and whether the defendant is entitled to any relief qua the plaintiff with respect to the same.
62. It has already come on record that there is no car garage in existence and it has been demolished by MCD and, therefore, there is nothing to decide with respect to this issue.
63. Issue No. 5. Whether the defendant is entitled to object to the installation of the genset and the cell tower by the plaintiff on the terrace above the 3 rd floor?
64. Plaintiff has installed the genset and cellular tower on the terrace above 3rd floor, however, Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 64 of 77 defendant has objected to the same on the ground that cellular tower emits electromagnetic radiations which are harmful for the residents and further genset installed therein is dangerous to the stability of the building and, therefore, plaintiff be restrained from using the genset and cellular tower and same be removed. Alongwith documents, defendant has filed a copy of letter of purportedly issued by Residents Welfare Association (RWA) of the said area though, it has not been proved or exhibited, but since this is a document of the defendant, same can be relied upon. It appears from reading of said letter that clarification was sought by defendant no. 1 from RWA regarding seeking of any permission by plaintiff for installation of the cell tower. The body of the letter issued by RWA to defendant no. 1 is reproduced herein as under: Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 65 of 77 " Sub: Clarification regarding permission given to Mrs. Rajender Jaina for installing cell tower and a generator over the terrace Sir, We are in receipt of your abovesaid communication and we would like to apprise you that Mr. Rajender Jaina has not sought any permission for installation of cell tower or generator set in the property bearing no. B 54, Greater KailashI, New Delhi. As regards permission by MCD, you may kindly approach the Municipal Corporation of Delhi for the said information."
65. The reading of the contents of the letter clearly shows that they had asked the defendant to approach the MCD to check whether any permission has been sought from the MCD or not. Defendant failed to produce further evidence on record or to call any Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 66 of 77 witness from MCD to show that any such permission was not sought. On the contrary, plaintiff has produced certified copy of order dated 04.02.2010 of Hon'ble High Court of Delhi wherein Hon'ble High Court had given opportunity to MCD to issue show cause notice clearly pointing out the requirements/permission which plaintiff herein or cellular operator is required to fulfill and thereafter MCD was given opportunity to take appropriate action. Alongwith this order, plaintiff has filed photocopy of application given by Idea Cellular to the MCD South Zone seeking permission to erect a tower alongwith DD of Rs. 1,00,000/, this photocopy of which is also annexed herein. Same is also accompanied by office order issued by MCD dated 20.11.2003. This documents have been exhibited as Ex PW1/23. The photocopy of a certificate regarding Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 67 of 77 structural stability of the said premises has also been issued by IIT department of Civil Engineering regarding the stability of the building. Though, these documents have not been proved by calling the concerned person, however, it appears that during the exhibition of these documents they were not objected by defendant. Even otherwise, relief of removing cell tower was sought by defendant and defendant was duty bound to show that same was installed without any authority. As far as permission of occupants are concerned, defendant no. 1 has failed to put forth any rules or byelaws showing that the consent of occupants was required for installing cell tower at the time of its installation. As far as genset is concerned, defendant had stepped into witness box and he stated that he is still living in Jammu. He has given his address of Jammu in his deposition though he Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 68 of 77 has stated that vibration comes to his floor also but his testimony shows that he has not been residing there. He has not been able to prove any other complaint of any of the other resident of the same building showing that anyone is having any difficulty with the genst put on the terrace of the third floor, therefore, this issue is decided against the defendant and in favour of plaintiff.
66. Apart from these issues, suit plaint contained some reliefs which are not mentioned herein and they are also being dealt herein as under:
67. Relief no. 1 & 4 sought in plaint.
(1) A decree of perpetual injunction be issued in favour of plaintiff and against the defendants thereby restraining the defendant no. 1, his agents, employees etc from causing any obstruction in the Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 69 of 77 repair/maintenance/user/operation of the lift in the premises no. B54A, Greater Kailash1, New Delhi110048.
and (4) Decree for money be passed in favour of the plaintiff to the tune of Rs. 70,000/ for the damages caused alongwith interest @ 18% p.a.
68. Plaintiff has alleged that when the lift was installed, employees of defendant at his instructions, demolished the portion of the intervening wall between lift well and one of his rooms, causing damages to the lift well on the 2nd floor (in his own portion) in order to stall the functioning of the lift. It is stated that lift stopped and complaint dated 17.01.2008 was given to the SHO which is Ex PW1/16. It is stated that thereafter repair was temporarily done, however, on 23.01.2008, Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 70 of 77 defendant no. 1 demolished the balance portion of the wall while security officer of the plaintiff namely R.S. Dabas was using the said lift and complaint was again made by him on 24.01.2008 which is Ex PW1/16A. Thereafter, it was again repaired and cost of Rs. 20,000/ was incurred in fitting steel frame on the damaged portion and on 31.01.2008 it was also broken and proceedings were initiated before Ld MM. In this regard, it is stated that first of all these complaints were not proved in accordance with law as no witness was summoned from police department to prove whether these complaints were received or not by concerned police station. Secondly, author of these complaints (Sh. R.S. Dabas) had not entered into witness box to prove these complaints. It is pertinent to mention here that R.S. Dabas who was allegedly the security officer of Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 71 of 77 the plaintiff had made complaint. Neither it is alleged that he is not available nor any document has been shown to prove that he was employee of the plaintiff. Further plaintiff has relied upon video recording/photographs in order prove damage, however, it is pertinent to mention here that said video recording is also not proved. It is not shown as to how representative of the plaintiff entered the 2 nd floor of the defendant which does not belong to the plaintiff. CD cannot be believed in order to show that the damage was caused by defendant no. 1. However, at the same time, during the pendency of this suit, Local Commissioner was appointed and he filed his report. As per report, at the time of visiting premises by Local Commissioner, the lift well was found to be damaged and repairing work of the lift well was done from inside Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 72 of 77 the premises of the defendant and, therefore, it can be said that certain repairs were done in lift well, in the portion of the defendant, in the presence of the Local Commissioner. There is no objection to report of Local Commissioner by defendant. Since some damage was found which was inside the premises of the defendant to which plaintiff had no access, therefore, in order to secure the rights of the plaintiff to use the lift uninterruptedly, defendant no. 1 or his employees are restrained from causing any obstruction in the repair/maintenance/user/operation of the lift.
69. At the same time, decree of money has been sought for recovery of Rs. 20,000/ towards installation of steel fitted frame and Rs. 50,000/ towards mental agony. As far as recovery of Rs. 20,000/ is concerned, Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 73 of 77 bill has been filed on record which is filled by hand but same has not been proved by the supplier who allegedly supplied the same. The said supplier was not summoned as witness to prove the said bill of Rs. 20,000/ and, therefore, this amount cannot be awarded. Further no evidence has been led by plaintiff to show that mental harassment was caused to the plaintiff or his family at hands of the defendant no. 1 and, therefore, relief sought for recovery cannot be granted.
70. As far as relief no. 2 regarding defendant no. 2 (SHO) is concerned, concerned SHO cannot be expected to ensure the compliance or peaceful function of the lift in a private property. His duty is to discharge sovereign functions and not to keep a constant vigil Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 74 of 77 over private disputes. Therefore, this relief cannot be granted.
71. Relief no. 3 has already been dealt with in issue no. 1 framed on 20.01.2009 as discussed above and need not be decided separately.
Reliefs.
72. Suit of the plaintiff is partly decreed in terms of following reliefs: Defendant no. 1 and his employees are restrained from causing any obstruction in the repair/maintenance/user/operation of the lift.
Defendant no. 1 shall be liable to pay regular running expenses of the lift as and when invoices shall Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 75 of 77 be raised upon him by plaintiff.
Rest of reliefs are declined.
73. Counter claim of the defendant is partly allowed to the following extent: Defendant no. 1 is allowed to use elevator/lift installed at the cost of the plaintiff without paying any cost of installation.
Defendant no. 1 shall be entitled to use the common staircase leading to the terrace.
Defendant no. 1 shall have a unhindered right to access the water tanks on the terrace above the third floor.
Rest of the reliefs sought in counter claim is declined.
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 76 of 77
74. Decree sheet be prepared accordingly.
75. File be consigned to Record Room after due compliance.
Digitally signedby VANDANA
VANDANA JAIN
Announced in the open JAIN Date: 2020.03.18
court on 05.03.2020 16:16:05 +0530
(VANDANA JAIN)
ADJ07/SE/SAKET COURTS/
NEW DELHI/05.03.2020
Rajender Jaina Vs. Sanjay Aggarwal & Anr Page 77 of 77