Delhi District Court
By This Order vs Sayantan Chaterjee & Anr. 1 /22 on 6 June, 2015
IN THE COURT OF SH. RAJ KUMAR CHAUHAN, ADJ-04,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Ex. No. 22/2014
Ajit Kumar Dass
S/o Late Sh. P.B. Das
R/o C-6/33, Safdarjung Development Area,
New Delhi-16 ..........Decree Holder
vs.
(1) Sayantan Chaterjee
S/o Late Sh. Nagendra Nath,
R/o C-6/33, 2nd Floor,
Safdarjung Development Area,
New Delhi-110016
(2) Smt. Atasi Chatterjee
W/o Sh. Sayantan Chaterjee
R/o C-6/33, 2nd Floor,
Safdarjung Development Area,
New Delhi-110016 ..........Judgment Debtors
ORDER
1. By this order, I propose to dispose of the objections of the defendant Sayantan Chaterjee under Order 21 Rule 58 read with Section 47 CPC to the Execution Petition and also the prayer of the applicant/plaintiff in the Execution Petition.
Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 1 /22
2. The brief facts of the matter between the parties which gave rise to the filing of the objections under discussions are that the applicant/plaintiff has instituted the suit for permanent mandatory injunction against the objector/defendant No.1 inter-alia alleging that the plaintiff is the owner of property No. C-6/33, Safdarjung Development Area, New Delhi, having purchased the same on 20.10.1978 hereinafter the said property; the plaintiff subsequently constructed basement, ground floor and first floor on the said property and got it converted from leasehold to freehold on 22.03.2000. The plaintiff sold terrace rights on the first floor of the suit property to defendants No.1 & 2 vide Sale-Deed dated 25.05.2005; defendants are residing at the second floor of the said property after raising the construction on the terrace of the first floor; as per Sale-Deed, it was the plaintiff only, who would own the roof over the second floor and the defendants will have limited right of use to the third floor, as per clause 1 and clause 13 of the Sale-Deed; relevant extracts of which are reproduced herein:
"1. The VENDEES will not have any claim whatsoever or will not get any roof over the second floor except certain common facilities such as installation and inspection of water storage tank Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 2 /22 antenna with specific permission of the VENDOR or as mutually agreed between the VENDOR and VENDEES"
"13. That the roof above the second floor shall be commonly used by VENDOR and VENDEE for installation of overhead water tanks, antenna, or any other purpose like celebration of birthday party, marriage etc. "
3. It is further alleged that as per suggestion given by the defendants during construction of the second floor, plaintiff proceeded to United Kingdom on 28.03.2006 to reside with his brother and came back on 13.09.2006; the defendants have breached the provisions of Sale-Deed by carrying out the following constructions and installations on the terrace of the second floor without the permission of the plaintiff.
(i) construction of two store rooms and a toilet,
(ii) installation of iron structure grouted into the terrace floor,
(iii) installation of a commercial/industrial generator of 25KVA capacity, measuring 6 feet height, 8 feet length and 3 feet, 6 inches breadth, along with cable lines on the terrace.
Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 3 /22
4. It is further alleged that running of the generator was causing lot of vibrations and noise in the building and could weaken the foundation of the building and the installations of doors and windows; when the generator was being used, the plaintiff could not sleep properly throughout the night; generator has been illegally installed by the defendants without permission and knowledge of the plaintiff and despite the objections of the plaintiff to the same, defendants had failed to shift the generator. It is further alleged that the plaintiff had regularly been asking the defendants to handover the absolute possession of the store room at the third floor as it was the property of the plaintiff; defendants were using the illegal structure raised by them at the third floor i.e terrace of the second floor and were using the same without any right and in violation of Sale-Deed dated 25.05.2005. Hence, the present suit was instituted with the prayer to pass a decree for mandatory injunction against the defendants directing them to hand over the possession of one store room, to remove the generator and the iron swings installed at the terrace of the second floor of the said property as shown in red colour in the site-plan as 'Annexure-A'. Plaintiff has further prayed for a decree of permanent injunction in their favour and against the defendants restraining them from their entering Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 4 /22 and using the terrace of the second floor except the purposes mentioned in the Sale-Deed dated 25.05.2005.
5. In the written statement, defendant has taken preliminary objections that the suit has been filed in contradictions to Section 41(g) of the Specific Relief Act, 1963; the defendants have spent immense amount of money on constructions, beautification and regularization of the said property with the earlier permission, approval and acquiescence of the plaintiff for the benefit of the plaintiff himself; plaintiff has filed the suit after 6 years of alleged installations, constructions and has thus acquiesced into the same; defendants are the sole and rightful owners of the second floor of the said premises and the plaintiff holds no exclusive right over the roof above the second floor.
6. It is further alleged that on 06.03.2006, the defendant undertook to purchase a generator and asked for it to be installed on the roof. The plaintiff duly agreed stating that all such cost were to be borne by the defendant. While the generator was being installed, the plaintiff was present and supervising the installation of the generator. The defendant further being wary of power cuts in the area offered a connection of the generator to the plaintiffs which they agreed subject Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 5 /22 to the fact that all fuel costs would be borne by the defendants. Hence the plaintiff himself has been using the generator during power cuts since the past 6 years at the sole expense of the defendants. This leads to acquiescence of the fact of installation of the generator worth Rs. 4 lacs.
7. On merits, all the averments in the plaint have been controverted and denied stating that the defendants have not violated any terms and conditions of the Sale-Deed and the suit of the plaintiff is liable to be dismissed.
8. Alongwith his suit, plaintiff has also filed an application under Order XXXIX Rules 1 & 2 CPC with the prayer for an interim injunction restraining the defendants from entering and using the terrace of the second floor of the said property except for the purposes mentioned in the Sale-Deed dated 25.05.2005. Further, prayer for ex-parte ad - interim mandatory injunction against the defendants directing them to remove the generator and the iron swings installed unauthorisedly on the terrace of the said property. Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 6 /22
9. My Ld. Predecessor vide order dated 08.03.2013 disposed of the said application with the observations as under:-
"As far as the prayer for removal of the generator is concerned, defendant is directed to remove the generator as it is causing noise and air pollution and the running of which is causing vibrations and noise causing disturbance to plaintiff and his family."
10. The order dated 08.03.2013 wherein the defendant was directed to remove the generator was challenged by the defendant/objector in FAO No. 255/13 for setting aside or modifying the impugned order dated 08.03.2013 whereby the appellant/objector herein has been directed to remove the generator from the suit premises.
11. The said FAO alongwith C.M. No. 9263/13(stay) and 18831/13 (vacation of interim order) were disposed of by the Hon'ble High Court of Delhi vide order dated 23.04.2014 as under:-
"23.04.2014
1. After arguments, the appeal and applications are disposed of with the observations that the impugned order disposing of the injunction application of the appellant/plaintiff will stand, however, any observation made in the impugned order is not a reflection on the merits of the cases of either of the parties and the case will be decided at the stage of final arguments after evidence is led by the parties uninfluenced by any observations which are made in the impugned order.
2. Counsel for the respondent states that review application filed Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 7 /22 seeking review of the impugned order before the trial Court is not being pressed by the Respondent/defendant and that review application will be withdrawn on the next date of hearing before the Court below.
3. Appeal is disposed of in terms of the aforesaid observations as not pressed, leaving the parties to bear their own costs."
The said order has become final as the same is not further challenged by either of the parties.
12. On 13.05.2014, plaintiff/applicant filed the present Execution Petition No. 22/2014 with the prayer to issue directions whereby directing the defendant/objector herein to remove the generator from the terrace of the second floor, C-6/33, Safdarjung Development Area, New Delhi. The applicant has further prayed for grant Police aid in case the premises was found locked and to break open the lock and the doors in case there is any obstructions created by the defendant in executing the order dated 08.03.2013.
13. Notice of the execution was issued to the defendant/JD, who has filed the present objections inter-alia alleging that on the date of hearing i.e 23.04.2014 before the Hon'ble High Court, both the parties had agreed that all the rights and contentions of both the parties will be decided at the stage of final arguments after recording of the Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 8 /22 evidence; Ld. Counsel for the defendants had agreed not to press the first appeal and as such the Hon'ble High Court was pleased to dispose of the first appeal by passing the aforesaid order dated 23.04.2014. It is further alleged that the DH/plaintiff contrary to the consent given before the Hon'ble High Court, instead of withdrawing their review application in the suit proceedings, had filed the present Execution Petition seeking execution of the directions inter-alia given by the trial Court while dismissing the application under Order 39 Rules 1 & 2 CPC to remove the generator from the roof of the said property.
14. The execution of the said order is objected on the ground that the order on interlocutory application cannot be executed independently till the passing of the final decree; execution of the order as sought in the present petition will render the suit infructuous; the defendant has been directed to remove the generator as the same is causing noise and air pollution and its running is causing vibrations and noise thereby disturbance to the plaintiff and his family; but the generator is silent generator which had been installed on 06.03.2006 on the terrace of the said property with the consent of the plaintiff and the plaintiff has been enjoying the facility of the generator since its Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 9 /22 installation and hence the interim order/directions for removal of the generator cannot be independent of the final order/decree, which will be passed only after trial and adjudication of the suit and as such the same cannot be executed at this stage. It is, therefore, stated that the execution is not maintainable in view of the objections so filed and is liable to be dismissed.
15. The applicant/plaintiff has filed reply to the said objections stating that the objections are nothing but an attempt to circumvent the order passed by this court. Even after dismissal of the first appeal, the objector has filed an application for modification of the order raising same plea as has been raised in the present objections vide C.M. No. 11517/14 moved in FAO No. 255/2013. Vide order dated 21.07.2014, Hon'ble Mr. Justice A.K. Pathak, High Court of Delhi, has dismissed the same holding that there was no ambiguity in the order dated 23.04.2014 and the said order requires no clarification. It is further stated that the Objector moved another application for review being C.M. No. 12852/14 for review of the order dated 23.04.2014 and the said application was dismissed on 22.08.2014. After dismissal of even review application, JD/Objectors have preferred the present objections Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 10 /22 despite their failure in two attempts made before the Hon'ble High Court of Delhi on the same grounds and, therefore, the objections are nothing but gross abuse of process of law and are liable to be dismissed at the thresh hold itself.
16. On merits, the averments/objections have been controverted and denied stating that the execution has been filed under Section 36 CPC, according to which, the Execution Petition can be filed in respect of interlocutory order and as such the present execution was maintainable. The plaintiff/applicant has prayed for dismissal of the objections and allowing of the Execution Petition.
17. On 06.09.2014, the plaintiff has withdrawn the review application dated 08.03.2013 by making statement in that regard and in view of the statement of the Ld. Counsel for the plaintiff, the application under Section 151 CPC for review of the order dated 08.03.2013 was dismissed as withdrawn. On 16.03.2015, Ld. Counsel for the plaintiff has placed on record computerized order dated 13.10.2014 of the Hon'ble Supreme Court of India stating that SLP of Objector wherein they have challenged the order dated 22.08.2014 of the Hon'ble High Court of Delhi has also been dismissed as withdrawn. Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 11 /22
18. On 09.05.2013, the plaintiff had moved an application under Order 39 Rule 2A CPC. Reply to the same was filed on 08.04.2015.
19. I have proceeded to decide the Execution Petition first and after disposal of the objections to this execution petition, the contempt application will be considered and both the Ld. Counsels had agreed to that preposition. Thereafter, I heard the Ld. Counsels for the Objector as well as for the applicant/plaintiff. Both the Ld. Counsels have also filed written arguments in support of their contentions.
20. Sh. Jatan Singh, Ld. Counsel for the Objector, at the very outset, argued that the Execution Petition was not maintainable because the plaintiff has already filed contempt application under Order 39 Rule 2A CPC. It is further argued that the execution of the interim order is not maintainable especially in the circumstances when remedy available to the plaintiff for initiating contempt proceedings has already been initiated under Order 39 Rule 2A CPC. Ld. Counsel further argued that the Objector/defendant has already filed a counter claim in the main suit which has to be treated as separate civil suit and because of provision of Order 21 Rule 29 CPC, the present Execution Petition has Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 12 /22 to be stayed under the said provision till the decision on the counter claim/suit of the defendant. It was further argued that the Execution Petition is not maintainable on the ground that the generator in question is silent generator and is not violating any norms regarding emission of smoke and no noise pollution is being caused because of its operation.
21. In his written arguments, Ld. Counsel for the Objector has argued that the impugned order is nothing but a preliminary decree which is not severable from the final decree and cannot be executed independently. A court cannot go behind the decree but the court has got power and jurisdiction under Section 47 of CPC to constitute a decree in order to ascertain its precise meaning, acting however, within its well known limitation. Reliance has been placed in that regard on the case of Mohd. Serajuddin vs. Mohd. Abdul Khalique, AIR 2005, Gau 40.
22. It is further argued in the written arguments that the Execution Petition is filed by the plaintiff under Order 21 Rule 36 CPC and same is not filed under Section 36 of CPC because without aid of Order 21, the provision of Section 36 CPC are not sufficient to grant relief claimed therein. Ld. Counsel for the Objector has also argued Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 13 /22 that Section 36 CPC is applicable in case of interim injunction simplicitor only and not in case of interim mandatory injunction as is being claimed in the present execution.
23. Ld. Counsel for the Objector further put reliance on the case of Hon'ble Apex Court in Kanwar Singh Saini vs. High Court of Delhi 2012(4) SCC 307, wherein Para 26, it was held that "An application under Order XXXIX Rule 2A CPC was maintainable in a case where there was a violation of interim injunction passed during the pendency of the suit." In Para 17, it was held that "An application under Order XXXIX Rule 2A lies only where disobedience/breach of injunction granted or order complained of was one that is granted by the Court under Order XXXIX Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and if the case is ultimately dismissed, the interim order stands nullified automatically."
24. Ld. Counsel has further relied upon the case of Hon'ble High Court of Andhra Pradesh in B. Chandra Sekhar Reddy & Ors. vs. K. Naga Raju Yadav & Anr. 2013 (1) ALT 532. In Para 25, it was held Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 14 /22 that "When the word 'Decree' is used in Order XXI Rule 32 is only referable to a Decree passed in a suit for permanent injunction after conducting necessary trial, an Order passed in an interlocutory application under Order XXXIX Rules 1 & 2 CPC cannot be equated with that word "Decree" for the purpose of taking recourse under the former provision when there was violation of interlocutory order."
25. Ld. Counsel has vehementally argued that the plaintiff/applicant has necessarily filed the present execution under Order 21 Rule 32 CPC as the same is of no worth, if independently considered under Section 36 of CPC and as such the relief claimed cannot be granted unless and until the directions to remove the generator are passed at the time of final disposal of the suit. It was further argued that the same thing was reiterated by the Hon'ble High Court of Delhi wherein the Objector preferred not to press their appeal because the plaintiff has agreed for deciding the controversy at the final stage. It is, therefore, submitted that Execution Petition is liable to be dismissed.
Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 15 /22
26. Ms. Jaya Goyal, Ld. Counsel for the plaintiff/applicant, on the other hand, argued that as per Provision of Section 36 CPC, the interim order passed under Order 39 Rules 1 & 2 CPC is executable order by filing an application in that regard and Execution Petition is maintainable because the directions given to the defendant to remove the generator by this court has been upheld by the Hon'ble High Court of Delhi wherein the FAO of the Objector has been dismissed. It is further argued that all grounds taken by the Objector in the present objections were taken by the Objector in the interim application for modification of the order and thereafter for review of the order of the Hon'ble High Court of Delhi but the said interim applications were also dismissed. Thus, the objections raised in the present execution application has already been adjudicated by the Hon'ble High Court of Delhi and re-agitating of the said objections already adjudicated is nothing but a gross misuse of process of law by the Objector/defendant.
27. In the written arguments, it is argued that the executing court cannot go into the merits of the case while hearing objections and a bare perusal of the objections filed by the defendants will show that the only grounds for filing the objections pertain to the merits of the Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 16 /22 case, hence, objections are untenable at this stage and are liable to be rejected. Reliance has been placed on the case of Kavita Chaudhri vs. Eveneet Singh and Anr. 2012(130)DRJ 83.
28. Ld. Counsel for the plaintiff has further put reliance on the case of Andhra Pradesh High Court in Yarlagunta Bhasker Rao v. Bommaji Danam 2014(1) ALD 309, wherein it has been held that ".... a party, who obtained temporary injunction orders, and is complaining of violation of such orders, may file not only an execution petition under Order XXI Rule 32 CPC or an application under Order XXXIX Rule 2A of CPC seeking attachment and / or arrest of the violator for Contempt of Court....."
29. In support of her arguments, seeking help of Section 36 of CPC, Ld. Counsel for the plaintiff has put reliance on the case of Division Bench of Bombay High Court in Satyapal v. Sanjay and Ors. (W.P. No. 735 of 2010) decided on 08.02.2010, MANU/MH/0131/2010 wherein it was held in Pare 15 that " In substance, an order under Order 39 Rules 1 & 2 and Order 39 Rule 2A operates into two different eventualities only because such litigant has filed an Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 17 /22 application under Order 39 Rule 2A CPC for alleged breach of injunction, his prayer for execution of the temporary injunction order within the parameters of Section 36 read with Order 21 of the Code, cannot be refused."
30. In reply to the contentions of the Ld. Counsel for the Objector that Section 36 read with Order 21 is not applicable in case of interim mandatory injunction, Ld. Counsel for the plaintiff has put reliance upon Kavita Chaudhri vs. Eveneet Singh and Anr. (Supra). In the said case, the respondent, who was daughter-in-law of appellant was directed by an interim mandatory injunction, to vacate the 'shared house' and to shift to the alternative suitable accommodation. Regarding the legality of the said order or the said orders were executable or not, the Hon'ble High Court was pleased to hold in Para 14 as under:
"14. Coming back to the meat of the case at hand wherein this Court is to examine as to whether the said two orders dated 20.12.2010 and 29.4.2011 passed by the learned Single Judge are in the nature of decree and can be enforced against the judgment debtor or not. Section 36 of the Code of Civil Procedure, 1908 makes it abundantly clear that the provisions of Order XXI are equally applicable with all force to the execution of an order. Section 2(14) Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 18 /22 of the Code defines an 'order' to be the formal expression of any order of a civil Court which is not a decree. A combined reading of Section 36 with Section 2(14) would make it clear that unless in an order there is a formal expression of decision of a civil Court, the same will not become executable. Under Order XXI Rule 32 any decree passed by the civil Court for specific performance for restitution of conjugal rights or for injunction can be enforced in the manner provided therein. Section 36 was enacted on the statute book to clarify the provisions relating to the execution of a decree or order. The underlying principle of this provision is that every Court has inherent power to have its order carried out, as otherwise, the orders would be a mere force. The word execution means enforcement of decrees or orders by process of Court so as to enable the decree holder to reap fruits of the judgment or orders passed by the Court in his favour therefore, it cannot be said that the word execution is relevant only so far as the execution of the decree is concerned, vide order dated 20.12.2010 a detailed order was passed by this Court while disposing of the applications filed by the parties in the said two suits i.e CS (OS) No. 505/2010 and CS(OS) No. 1307/2010 and the order dated 29.4.2011 is in continuation of the said order dated 20.12.2010 being a clarification in nature. The Court in the said order has given detailed reasons after placing reliance on various judgments passed by the Hon'ble Apex Court and other High Courts and also referred to the relevant provisions of the Domestic Violence Act and therefore both the said orders clearly fall within the definition of Section 2(14) of the Code of Civil Procedure and Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 19 /22 therefore it cannot be said that they are not executable or enforceable in nature as argued by the Counsel for the judgment debtor. Therefore, the first objection raised by the Counsel for the judgment debtor lacks merit and is therefore rejected."
31. I have considered the rival submissions and gone through the entire record carefully.
32. In view of the law laid down by the Hon'ble High Court of Delhi in the case of Kavita Chaudhri vs. Eveneet Singh and Anr. (Supra), the execution of ad-interim mandatory injunction passed under Order 39 Rules 1 & 2 CPC is maintainable. In view of the law laid down of the Hon'ble Bombay High Court in case of Satyapal v. Sanjay and Ors. (Supra), the execution of an order of ad-interim injunction passed under Order 39 Rules 1 & 2 CPC is maintainable alongwith contempt proceedings under Order 39 Rule 2A CPC.
33. With regard to the arguments of the Ld. Counsel for the Objector for staying of the present execution under Order 21 Rule 29 CPC, I am of the considered opinion that the said provision is not applicable to the present execution because the status of the applicant/plaintiff in the present execution petition is not of a decree Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 20 /22 holder as he has merely sought execution of an order under Section 36 of CPC with the assistance of Order 21 of CPC. For the above reasons, the said objection is not tenable.
34. In view of the above discussions, I am of the considered opinion that notwithstanding of the filing of the application under Order 39 Rule 2A CPC by the applicant/plaintiff, the present Execution Petition for execution of the order dated 23.04.2014 by the plaintiff, is maintainable. I do not find any substance in the objections filed by the defendant and the same are, accordingly, rejected.
35. Vide order dated 23.04.2014 sought to be executed herein, the defendant was directed to remove the generator as it was causing noise and air pollution and running of which was causing vibrations and the noise causing disturbance to the plaintiff and his family. Defendant has not complied with the said order, hence, the present Execution Petition was filed by the plaintiff. In view of the aforesaid discussions made by me, the prayer of the plaintiff in the present execution petition as mentioned in prayer clause 'A' is allowed and the defendants are directed to remove the generator from the terrace of the second floor of C-6/33, Safdarjung Development Area, New Delhi Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 21 /22 within a period of 7 days from today. In case, the defendant does not comply the present order, his defence will be liable to be struck of under Section 151 of CPC. Further, the plaintiff will be at liberty to move an application for appointment of Bailiff by this court, who with the assistance of some technical person would remove the generator from the terrace of the second floor of the above mentioned property after dismantling the same, if so required.
36. Put up for compliance of the directions given to the defendant today and further proceedings on 30.06.2015.
Announced in the open court. (RAJ KUMAR CHAUHAN)
Dated:06.06.2015 ADJ-04 (South)
Saket Courts/New Delhi
Ex. No. 22/2014 Ajit Kumar Das vs. Sayantan Chaterjee & Anr. 22 /22