Delhi District Court
Sh. Joginder Singh vs Sh. Sanjeev Monga & Ors on 5 April, 2016
Joginder Singh V. Sanjeev Monga & Ors.
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (NORTH): ROHINI COURTS: DELHI
Suit No. 150/15
Sh. Joginder Singh
........Plaintiff
Versus
Sh. Sanjeev Monga & Ors.
....Defendant
Order:
Vide this order, I shall dispose of an application under section
151 CPC filed on behalf of the defendants for ensuring the compliance of
the order dated 12.10.15 by the plaintiff.
The brief facts of the case are as follows:
That the plaintiff is the owner and in absolute possession of the
built up property i.e. the second and third floor with roof rights of property
bearing no. 99, Gujranwala Town PartII, Delhi99, while the defendant no.1
is residing on the first floor of the property alongwith family members, who
are defendants no. 24 and the ground floor of the said property is occupied
by one Sh. Jaimal Singh. That the defendants have no concern with the
second and third floor as well as roof of the property. However, defendants
CS NO. 150/15 Page 1 of pages 8
Joginder Singh V. Sanjeev Monga & Ors.
were interfering in the same and accordingly the plaintiff filed the present
suit.
On the other hand, it is the case of the defendants that the
plaintiff is not the owner of the common passage and that they have already
lodged a complaint against the plaintiff before the NDMC as allegedly the
plaintiff was making unauthorised construction over the terrace.
Vide detailed order dated 12.10.15, which is the order in
question, an application u/o. 39 rule 1 and 2 cpc filed by the plaintiff was
disposed off with following observations:
In these circumstances the plaintiff, whether or not
they install any gate for the purpose of security at the
entrance of the second floor, they shall allow access to the
occupants of the remaining floors of suit property i.e. the
defendants to visit roof once in 15 days during reasonable
hours of the day in the presence of the plaintiff for the
limited purpose of maintenance and repairs of the water
tank TV antinas etc. It is clarified that this would not
amount to conferring any fresh right of ownership over the
roof or passage from the first floor to the roof with the
CS NO. 150/15 Page 2 of pages 8
Joginder Singh V. Sanjeev Monga & Ors.
defendants since they had the limited rights of ownership of
the passage from ground to first floor only as per their sale
deed. At the same time it is not disputed by the defendants
that the plaintiff is the owner and in portion of 2nd and 3rd
floor with roof rights. Every occupier of the has right to
enjoy and use his property without any unreasonable
hindrance and in these circumstances the defendants are
restrained from interfering in the peaceful use and
occupation of the suit property by the plaintiff. As is stated
above in case defendant have any grievance against the
alleged unlawful construction if any being made by the
plaintiff they are at liberty to avail appropriate remedy as
per law before the appropriate forum with these
observations application under order 39 Rule 1 and 2 CPC
is disposed off accordingly.
Nothing stated herein shall tantamount to an
expression of opinion on the merits of the case.
CS NO. 150/15 Page 3 of pages 8
Joginder Singh V. Sanjeev Monga & Ors.
It had been argued that the plaintiff in order to stop the
defendants from causing any interference or executing their repeated threats
wants to fix the door at the entrance of his second floor property.
Vide the instant application u/o. 151 C.P.C filed by the
defendants, it is submitted that the plaintiff is intentionally misusing and
violating the order dated 12.10.15 as the plaintiff has installed a gate in
between the staircase of the first floor and the second floor, which is
applicant's entrance and further blocked the access to a store room/ loft
belonging to the defendant on the first floor. That the entrance of the second
floor starts after/end of the gate of the loft as mentioned in yellow colour of
the site plan of the sale deed of the defendants, but the plaintiff is misusing
the order dated 12.10.15. Instead of installing the gate above the entrance of
the second floor he has installed the door in the common passage of the
defendants in front of the store room/loft at the first floor in between the
stairs. That the store room and loft is an important part of the property of
the defendants, which the plaintiff has mischievously obstructed the
defendants in using.
CS NO. 150/15 Page 4 of pages 8
Joginder Singh V. Sanjeev Monga & Ors.
Vide the instant application u/s. 151 Cr. P.C. defendants seek the
direction to be given to the concerned SHO to remove the door and its frame
(chowkhat) installed in the common passage of the defendants in front of the
store room/ loft at the first floor portion. There is also another relief
regarding installation of water tank by the plaintiff.
Heard. Record perused.
At the very outset, as regards the water tank, the detailed order dated
12.10.15had been passed, whereby plaintiff had been given directions for giving access to the defendants to use the water tanks for the purposes of maintenance and repairs and also clear observations had been made qua the water tank and thus, both the parties are directed to obey order dated 12.10.15 in this regard. None of the parties has challenged the order qua water tanks before the Appellant Forum reportedly.
Ld. counsel for the plaintiff had also argued that the defendants has already preferred an appeal seeking similar relief as sought by him u/s 151 Cr. PC before the ld. Appellant court, however, def.no. 2 and 3 submitted before the court on 31.03.16 that they are not pressing appeal before the ld. Appellant court.
CS NO. 150/15 Page 5 of pages 8 Joginder Singh V. Sanjeev Monga & Ors.
As regards the installation of the door/gate in front of the store room/ loft at first floor, the status report had been called from the concerned SHO PS Model Town, whereby, vide the status report dated 15.01.16 it is reported that the plaintiff has installed one gate in the common passage before the store room/ loft, which is a part of the first floor belonging to the defendants and thus has blocked the access of the defendant to the said store room.
The defendants also filed some photographs and as per the first photograph at internal page no. 3, it clearly reveals that a fresh door has been installed right next to the store leading to the first floor to the second floor and not at the entrance of the second floor as was allowed to the plaintiff for the purpose of his security.
Even in the reply filed on behalf of the plaintiff to the instant application, the plaintiff has not specifically denied that he has not misused the order. Nowhere in the reply the plaintiff has been able to assess that the door installed is right at the entrance of the second floor for the purposes of his safety and security as was allowed.
As per the photographs filed and the specific report of the SHO, it is clear that the plaintiff has misused the orders of the court and installed the CS NO. 150/15 Page 6 of pages 8 Joginder Singh V. Sanjeev Monga & Ors.
gate instead of the entrance of the second floor way below in front of the store room at the first floor and court cannot be used as an instrument to achieve such mischievous ends. Neither can courts permit a wrong to pertpetuate.
Under these circumstances, plaintiff is directed to immediately remove the door installed in front of the store room at the first floor and give his compliance on affidavit within two weeks from today, failing which it is clarified that opportunity granted to him for installation of the gate right at the entrance of his second floor for the purpose of the security vide orders dated 12.10.15 would stand vacated.
Further there appears to be some litigations pending between the parties before the MCD Tribunal and it appears that some demolition orders had been passed which although have now been stayed vide order of the ld. MCD Tribunal presided over by Sh. Sanjeev Kumar, Tis Hazari courts dated 15.03.16. It is clarified that the removal of this door, which has been wrongly done by the plaintiff upon/misusing the liberty granted by this court vide orders dated 12.10.15, does not in any way amount to demolition or alteration in the structure of the property as it exists and the order passed by this court today be read harmoniously and in consonance CS NO. 150/15 Page 7 of pages 8 Joginder Singh V. Sanjeev Monga & Ors.
with/and subject to the order of ld. MCD Tribunal dated 15.03.16.
Ahlmad is directed to send the file back to the concerned ld. Appellant court of ld. Senior Civil Judge, (North) on or before 19.04.16 as directed vide orders dated 30.03.16 passed by the ld. Senior Civil Judge (North) in MCA no. 4/16.
Application is disposed off accordingly.
To come up for further proceedings on 28.05.2016. Pronounced in the open court today on 05.04.16 (SHEFALI SHARMA) CIVIL JUDGE (NORTH) ROHINI, DELHI/ 05.04.2016 CS NO. 150/15 Page 8 of pages 8