Delhi District Court
Smt. Suman Gogia vs Smt. Chander Kanta on 9 November, 2022
IN THE COURT OF MS NEHA GARG, LD. CIVIL JUDGE-01,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No:-DLCT03-0001782016
CS No.593616/2016
Smt. Suman Gogia
W/o Shri Jagdeep Kumar Gogia,
R/o 70B, LIG Flats,
Prasad Nagar,
New Delhi. .............. Plaintiff
Versus
1. Smt. Chander Kanta
W/o Shri Bhagat Raj
2. Sh. Bhagat Raj
Both R/o 70-C, LIG Flats,
Prasad Nagar,
New Delhi.
And also at:-
R/o 16/429-H, Bapa Nagar,
Karol Bagh, New Delhi. ..........Defendants
Date of institution of suit : 10.05.2016
Date on which reserved for judgment : 30.09.2022
Date of pronouncement of Judgment : 09.11.2022
SUIT FOR PERMANENT PROHIBITORY INJUNCTION
JUDGMENT
1. The present suit has been filed for permanent prohibitory injunction. The brief facts of the case are that the plaintiff is the owner in possession of property/LIG Flat No. 70B, LIG Flats, Prasad Nagar, New Delhi, having been purchased the same from its erstwhile owner Smt. CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 1 of 18 Maya Mana through a Conveyance Deed executed on 02.12.2005. That the flat of the plaintiff consists of three rooms and that plaintiff is paying the house tax. That the said flat of the plaintiff is situated at the first floor and there is a flat on the second floor bearing Flat No. 70C and thereafter there is a roof where the water tanks have been fitted and all the residents of Flat No. 70A, on the ground floor, Flat No. 70B, on the first floor have a right to see their water tanks on the roof of the flat No. 70C. That earlier owners have constructed a room on the part of the roof of the Flat No. 70C and recently they have sold the flat to defendants No.1 and 2 who are now occupying the same. That after occupying the same, since December 2012, the defendants No.1 and 2 have started saying that they want to construct the room above said third room of the flat of the plaintiff and in the process of the same, they will demolish the walls of their flat which are in a very dilapidated condition. That the plaintiff and her husband objected to the same as firstly the flat of the defendants is in a very bad condition and by removing the walls, the whole flat can fall on the plaintiff's flat or on the passersby or the resident of Flat No. 70-A and also the defendants can only construct a room on the roof which they already constructed and they have no right to construct any room on the third floor of the plaintiff's flat. Even otherwise, plaintiff has also fitted the water tanks on the roof of the third floor. That initially the defendants assured the plaintiff and her husband that they are not going to do so after the plaintiff and her husband made a complaints dated 03.12.2012 and 04.12.2012 but now again with the starting of the January month, the defendants again started threatening the plaintiff to construct a room on the third floor of the plaintiff's flat and to demolish the walls of their own flat and even threatened the plaintiff and her husband of dire consequences if they object to the same. That taking the benefit of the holidays of 12th and 13th January, 2013, they started removing a tree which is on their flat in order to demolish the wall and to start the CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 2 of 18 construction on the third room of the plaintiff. That in these circumstances, the plaintiff filed a suit for permanent prohibitory seeking restraint order from demolishing the walls of Flat No. 70C as well as making any construction on the third floor of the plaintiff's Flat bearing No. 70B. Prasad Nagar, LIG Flats, New Delhi which is now pending in the Court of Sh. V.K. Meena, the then Ld. Civil Judge, Central, Delhi. That plaintiff also filed an application u/O 39 Rule 2A CPC against the defendants for violating the order dated 22.01.2013, 24.01.2013 and 29.01.2013, which is also pending in the same Court. That water is leaking from defendant's flat to the walls of the flat of the plaintiff which has been causing seepage in the walls and floors and other parts of the flat of the plaintiff and cracks have developed and due to which POP etc., has been totally damaged for which the plaintiff engaged a valuer who gave a report of damage amounting to Rs. 4,90,000/- and plaintiff filed a suit for damages which is now pending in the Court of Sh. Gurinder Pal Singh, the then Ld. ADJ, Central, THC. That as the damages continued and plaintiff got again engaged a valuer for assessing the same at Rs. 6,40,000/-, therefore, the plaintiff filed a Civil Suit for recovery of balance amount of Rs. 1,50,000/- as damages in the Court of Sh. Gurinder Pal Singh, the then Ld. ADJ, Central, Delhi. That the roof existing on the Flats No. 70A to 70C is common for all the residents of these flats including that of the plaintiff on which the DDA has fixed a water tank but the defendants are not allowing the plaintiff, her husband or their any employee or associate to visit the roof as stated above due to which even the officials of North Delhi Municipal Corporation challaned the plaintiff for not keeping the water tank properly to which the plaintiff has shown her inability on account of the fact that the plaintiff could not visit the roof as the defendants have locked the door going towards the roof. That not only this, the defendants now recently damaged the water bell fixed in the water tank of the plaintiff installed at the roof and have CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 3 of 18 damaged the water pipe going to the water tank and also removed the water from the said tank only with a view to harass and humiliate the plaintiff and her family members. That as and when the plaintiff or any of her family members tries to go to the roof of their flat, the defendants pick up quarrel with them and they refuse to allow them to go to the roof for maintenance of their water tank. That the defendants have installed four tanks on the roof of the Flats No. 70A to 70C and after filling of the said tank by the water, the water kept on flowing on the walls of the plaintiff's flat and the defendants failed to accede to the request of the plaintiff to take steps in this regard. That recently in the last week of April, 2016 when the plaintiff requested the defendants to allow her employee to go to the roof/terrace to replace the water bell and to maintain her water tank and also to remove the lock put on the door fixed by the defendants, the defendants instead of acceding to the requests of the plaintiff started picking up quarrel with her and also refused to allow the plaintiff or any of her family members to the roof, despite the fact that plaintiff is also having the right as per law to go to the roof for maintenance and upkeep of the water tanks etc. That the defendants have no right to install the door or put any lock to restrict the entry of the plaintiff or her family members in any manner and this is also the violation of her legal rights. That during the pendency of the present suit, the NDMC had initiated proceedings for demolition of the portion/room which was constructed by the plaintiff beyond the original structure. That the plaintiff thereafter applied for regularization of the said construction of her Flat No. 70B with the NDMC along with the owner of Flat No. 70A namely Smt. Amarjeet Kaur vide application dated 02.09.2016 and deposited necessary charges for regularization, copy of which is annexed with the plaint. That said application was allowed by the NDMC and above said flat of plaintiff has been regularized by the NDMC under the Self Assessment Scheme vide File CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 4 of 18 No. 212/Reg./SAS/B/KBZ/2017 vide letter No. D/AE/(B)/KBZ/2017/86 dated 25.01.2017 that copy of the same is also filed with the plaint. Hence the present suit.
2. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court. Thereafter the matter was listed for filing of Written Statements on behalf of defendants.
3. A joint Written Statement has been filed on behalf of defendants, wherein it is stated that that the present suit is not maintainable in as much as the injunction is a relief in equity and the one who seeks equity must do equity. That the plaintiff is guilty of raising unauthorised construction in her flat which has been booked by MCD for demolition on the direction of Sh. Kishore Kumar, Ld. CJ, Delhi in a suit now transferred to the Court of Sh. G.P. Singh, Ld. ADJ, Delhi. That the plaintiff has mentioned about filing a suit now pending in the Court of Sh. V.K. Meena, Ld. CJ, Delhi but has deliberately concealed that in that suit she also moved an application regarding clearing and maintenance of water tank on the roof alleging that the defendants are restraining her from going up to roof for the maintenance of cemented water tank. That the said application was filed in a suit bearing No.11 of 2013 pending before the Court of Ms. Ruchi Aggarwal Asrani the then Ld. Civil Judge, Delhi and at that time the plaintiff made statement to the effect that she has no objection if the door to the terrace is opened in between 7:30AM and 9:30AM and further undertook that either her husband or her office boy namely Nirdosh and the plumber will visit the terrace to clean the water tanks, if required. That the statement of the defendants and their counsel was also recorded and the application was disposed off by directing that the parties have agreed that the plaintiff can access the terrace without the permission of the defendants in between 7:30AM to CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 5 of 18 9:30AM every day and the defendants shall leave the door of the terrace open during that time. That the defendants since than have been obeying the Order which can be seen from the fact that the plaintiff never alleged disobedience by defendants since 2013. That the said order is still in force. That the plaintiff having agreed an arrangement regarding the water tank is now stopped from asserting any further right as the said order is still in force. That the present suit has been filed as a counter blast to an application u/S 151 CPC field by the defendants in Civil Suit No.11 of 2013 whereby the defendants stated that after 13.11.2013, plaintiff or anyone else on her behalf never visited the water tank which can be seen by seeing its current status. That the leaking water from the tank of plaintiff is damaging the flat of the defendants and prayed that plaintiff may kindly be directed to remove the cemented water tank on the roof of the flat of defendant bearing No. 70-C, Prasad Nagar, New Deli. That it is only after the filing of the said application under Section 151 CPC by the defendants in the said Civil Suit bearing No.11 of 2013 that the plaintiff filed the present suit. That the flat of the plaintiff as well as that of the defendants were originally constructed and allotted by DDA and comprised of only two rooms and the third room and store alleged by the plaintiff in the plaint is an unauthorised addition which she herself has constructed but she does notf want defendants to avail the same facility. That the flats of the plaintiff and defendants were constructed by DDA were provided with a cemented water storage tank and the plaintiff has in addition to the said cemented water storage tank put five more plastic tanks in the space outside the kitchen of the defendants above the store of plaintiff which the plaintiff alleges as "roof of the third room", besides putting flower pots there for harassing and grabbing the part of the flat of defendants. That the plaintiff had put the aforesaid water tanks and flower pots after the defendants purchased the flat and the flower pots were put by the plaintiff on the space forming CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 6 of 18 part of Flat No. 70-C of the defendants. That the defendants have no objection if the plaintiff wants to seek her cemented water tank on the roof of the flat of the defendants but she has no right to unauthorisedly encroach upon the space of defendants flat by putting water tanks and flower pots. That the said encroachment made by plaintiff is causing immense pain, hardship and difficulty to the defendants and plaintiff is liable to pay damages for the same. That the flat purchased by defendant No.2 is in the same shape as was sold to her by the previous owner except for permissible repairs and construction covered by Order dated 22.01.2013 of Smt. Ruchi Aggarwal Asrani, the then Ld. CJ, Delhi. That plaintiff herself has constructed the third room and does not want the defendants to do so. That the plaintiff or her husband has got no right to object to the construction of third room by defendants as they are bound by their own act of constructing a third room already. That even the daughter of the plaintiff Smt. Manshi who is also living in the same locality at a little distance has also constructed a third room exactly at the same place and in the same manner as done by the plaintiff but she is objecting to the defendants doing the same. That since the plaintiff herself has unauthorizedly constructed a third room in her flat she is stopped from seeking injunction, a relief in equity against the defendants. That it is denied that defendants have installed four tanks on the roof of flat No. 70A to 70 C and after the tank is filled the water keeps flowing on the walls of the plaintiff flat. That it is denied that the plaintiff in April 2016 requested the defendants to allow her employee to go to the roof to replace the water bell and maintain water tank and also to remove lock put by defendants but the defendants refused rather they started quarreling with the plaintiff. That there never was any such occasion and the allegations here are all false. That it is denied that the defendants have no right to install the door or put any lock to restrict the entry of plaintiff or her family. That the lock and door are in existence CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 7 of 18 since last more than 40 years. That the defendants for their security are entitled to put lock and door.
4. Replication was filed on behalf of the plaintiff to the written statement filed on behalf of defendants wherein all the averments made in the plaint were reaffirmed and contents of Written Statement of defendants were denied.
5. On completion of pleadings, following issues were framed in the present matter by Ld. Predecessor of this Court on 07.12.2016:-
1. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
3. Whether the plaintiff has not approached the Court with clean hands and has suppressed the material facts? OPD
4. Relief.
Evidence:-
6. Thereafter the matter was listed for recording of plaintiff's evidence. In order to prove his case, the plaintiff got herself examined as PW-1. PW-1 tendered her evidence by way of affidavit Ex.PW1/A. PW- 1 relied on the following documents:-
Mark A, B, C, D, E & F: Copy of orders dated 22.01.2013 to 23.08.2013..
Mark G : Copy of plaint filed in other suit.
Mark H : Copy of WS filed in other suit.
Mark I : Copy of replication filed in other suit.
Mark J(colly) (13 pages): Copy of report of Local Commissioner
with documents filed by Ms. Deepa
CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 8 of 18
Kaushik, LC.
Mark K(colly) : Copies of 23 photographs of the suit
property.
Mark L, M, N & O : Copies of police complaints dated
respectively 13.06.2013, 02.08.2013, 14.02.2016 and
27.02.2016.
PW-1 was duly cross examined.
Sh. Ramesh Kumar was examined as PW-2. PW-2 is the
summoned witness. PW-2 proved on record the photographs Ex.PW2/1 to Ex.PW2/9. PW-2 was duly cross examined.
Sh. Akash, Ahlmad from the Court of Ms. Sonam Singh, Ld. Civil Judge was examined as PW-3. PW-3 is the summoned witness, who brought on record the summoned record the Ex.PW3/A(colly).
PW-3 was duly cross examined.
Thereafter, the PE was closed on 11.04.2022 vide separate statement of Ld. Counsel for plaintiff. Thereafter the matter was listed for defendant's evidence.
7. In defendant's evidence, Sh. Bhagat Raj was examined as DW-1. DW-1 tendered his evidence by way of affidavit Ex.DW1/A. DW-1 was duly cross examined.
Therefore, defendant's evidence was closed on 01.09.2022 on separate statement of defendant No.2 and the matter was fixed for final arguments.
8. Final Arguments were heard at length and the record is carefully perused by this court.
After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record and after hearing the submissions of both the sides, my issue wise finding in the present CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 9 of 18 matter is as follows:
Since all the issues are interconnected, the same shall be taken up together.
Issue No.1:- Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP Issue No.2:- Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP Issue No.3:- Whether the plaintiff has not approached the Court with clean hands and has suppressed the material facts? OPD
9. The burden to prove issues No.1 & 2 is on plaintiff and the burden to prove issue No.3 is on defendants. It is the case of plaintiff that she is the owner of Flat No. 70-B, First Floor, LIG Flats, Prasad Nagar, New Delhi-110005 and has been residing therein since 1990. That defendants are residing at Flat No. 70-C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005 after purchasing the same through Sale Deed dated 06.11.2012 Ex.DW1/P2. It is the case of plaintiff that the roof of Flat of defendant (hereinafter referred to as 'the terrace') is common for the residents of Flat No. 70-A, LIG Flats, Prasad Nagar, New Delhi-110005 situated on Ground Floor, Flat No. 70-B, LIG Flats, Prasad Nagar, New Delhi-110005 (plaintiff's flat) situated on First Floor and that the residents of aforesaid flats have the right to inspect their water tanks installed on the roof of Flat No. 70-C. It is further the case of plaintiff that defendants have illegally started constructing and renovating their flat and have further carried out construction on the terrace. That plaintiff has constructed, much before the defendants came to reside in their flat, a room adjacent to her Floor with the consent of the person residing at the ground floor and had applied with MCD for regularization of the same. That on the roof of the said room constructed by her, she has put flower pots and water tanks. It is further the case of plaintiff that CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 10 of 18 defendants intended to construct a room on the roof of the room that was constructed by her and therefore a suit for Permanent Injunction was filed by her against the defendants in the year 2013.
10. The main grievance of the plaintiff is that the terrace has been provided by the DDA for keeping water tanks to residents of all the floors including the plaintiff and that she has the right to go to the terrace to maintain her water tanks but that the defendants are not allowing her, her husband and her employees to go to the terrace as defendants keep the door of the terrace locked all the time. It is further the case of plaintiff that defendants have damaged the bell fixed in the water tank for stopping the overflow of water and have damaged the water pipe resulting in her tank having no water. That defendants intentionally leave the water flowing from their tanks installed on the terrace with the purpose to cause damage to her flat. That in the last week of April 2016, plaintiff requested the defendants to allow her employee to go to the terrace to replace the water bell and had therefore requested the defendants to remove the lock put on the door of the terrace by them, on which defendants quarreled, used abusive language and did not allow her and her employees to go to the terrace. That many a times the defendants picked up quarrels and police complaints dated 13.06.2013, 02.08.2013, 14.02.2016 and 27.02.2016 were filed.
11. Per contra, it is the case of defendants that plaintiff is not entitled to the equitable relief of injunction as she has raised unauthorised construction in her Flat which was booked by MCD for demolition. That in the suit filed by plaintiff in the year 2013, plaintiff had moved an application regarding the subject matter of the present suit i.e., cleaning and maintenance of the water tanks installed on the terrace on the ground that defendants are restraining her from going to the terrace for CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 11 of 18 maintenance of the cemented water tank. That the Court of Ms. Ruchi Aggarwal, Ld. CJ, Delhi had vide Order dated 13.01.2013 allowed the aforesaid application with the directions that plaintiff can access the terrace without the permissions of the defendants in between 7:30AM to 9:30AM every day and that defendants shall leave the door of the terrace open during that time. That plaintiff never alleged disobedience of the said Order since 2013 and that in fact, after 13.01.2013, plaintiff never visited the terrace for inspection of the water tank. That the water tank installed on the terrace is dirty, is breeding ground for mosquitoes and is leaking heavily from all sides which has caused damage to the flat of defendants. Defendants have submitted that plaintiff be directed to remove her cemented water tank installed on the terrace. It is the case of defendants that there is nothing like roof of the third room of the plaintiff and that same forms part of the flat of the defendants. It is submitted by the defendants that the flats of the parties were constructed by DDA and were provided with cemented water storage tanks and that plaintiff has in addition to the cemented water storage tank put five more plastic tanks and flower pots in the space outside the kitchen of the defendants above the construction carried out by plaintiff in her flat. It is further submitted by defendants that the flat of defendants was in the same shape as was sold to defendant No.1 by the previous owners except the permissible repairs and constructions so carried out. Defendants have denied that there is any leaking of water from the flat of defendants to the walls of the flat of plaintiff or that any damage has been caused to the flat of plaintiff by any act of defendants.
12. It is not denied by the defendants in their Written Statement that the flats of the parties were constructed and allotted by DDA and that cemented water storage tanks have been installed on the terrace of flat No. 70-C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005.
CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 12 of 18Defendant No.1/DW-1 has admitted in her cross examination that the water tank of plaintiff is still situated on the terrace of Flat No. 70-C. The grievance of the defendants is that the plaintiff in addition to the aforesaid cemented tank has also installed plastic tanks on the roof of the alleged unauthorised construction carried out by her in her flat. Though DW-1 has denied in her cross examination that she has installed a gate on the terrace and that she had put locks on the terrace but it is submitted by the defendants in para 11 and 12 of reply on merits of their Written Statement that the said lock and door are in existence since last more than forty years and that defendants for their security are entitled to put lock and door. DW-1 has admitted in her cross examination that there is a door with a lock as shown in photograph Ex.DW1/P1 installed on the stairs leading to the terrace.
13. DW-1 has denied in her cross examination that she has constructed two rooms, kitchen and toilet at the terrace of her Flat No. 70-C and she has deposed that the aforesaid construction was in place when she had purchased her flat. DW-1 has further deposed in her cross examination that one of the rooms situated on terrace is used by her and another room has been let out to a tenant. Sale Deed dated 06.11.2012 Ex.DW1/P2 in favour of defendant No.1 is accompanied by a site plan. Ex.DW1/P2 proves that only Flat No. 70-C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005 was purchased by defendant No.1. Neither the Sale Deed dated 06.11.2012 nor the site plan accompanying the Sale Deed mentions any construction existing on the roof of Flat No. 70-C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005. Therefore, it appears that defendants have constructed two rooms, kitchen and toilet on the roof of their Flat No. 70-C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005 after purchasing the same on 06.11.2012 and that she has let out one of the rooms to a tenant. In view of the categorical admission CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 13 of 18 made by defendants in their Written Statement that they are entitled to put lock and door on the terrace for security purpose, it further becomes clear that defendants have put a lock on the door of the terrace on which they have raised construction.
14. Plaintiff has filed on record copy of various complaints dated 13.06.2013, 02.08.2013, 14.02.2016 and 27.02.2016 (Mark L, M, N, O) in support of her plea that she, her husband and her employees have been restrained by the defendants from going to the terrace. Complaint Mark M and N which bears the stamp of the concerned IO P.S. Prasad Nagar lends support to the averments of the plaintiff that she is stopped by the defendants from going to the terrace where admittedly her cemented water tank has been installed. Nothing has come in cross examination of plaintiff to disbelieve her averments that she is restrained by the defendants from going to the terrace and from inspecting her water tanks. It is clear from the facts of the case that the terrace of Flat No. 70- C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005 is common and plaintiff has right to go and inspect her cemented water tank installed thereon and that hindrance has been created by defendants in plaintiff's right to go to the common terrace.
15. Defendants have raised two-fold objections to the suit of plaintiff. Firstly, that plaintiff has herself carried out unauthorised construction in her flat by constructing a third room and that she has placed plastic water tanks and flower pots on the said construction carried out by her. It is submitted by the defendants that the roof of the said construction raised by plaintiff forms the part of the flat of defendants. It is the case of defendants that plaintiff is not entitled to the equitable relief of injunction as she has not approached the court with clean hands as she has carried out unauthorised construction in her flat. During the course CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 14 of 18 of final arguments, Ld. Counsel for the plaintiff has argued that the construction raised by plaintiff in her flat has been regularized by MCD and in support of her averments Ld. Counsel has filed on record letter dated 25.01.2017 issued by Assistant Engineer (Building), NDMC, Karol Bagh Zone, New Delhi regularizing the construction carried out by the plaintiff in the suit property. DW-1 has deposed in her affidavit of evidence Ex.DW1/A that she has no objection if plaintiffs wants to go to the roof to inspect her cemented water tank but she has no right to encroach upon the space of defendant's flat by putting water tanks and flower pots. It is clear from the aforesaid statement of the defendant that defendants are denying the plaintiff the access to the terrace as plaintiff has put plastic water tanks and flower pots on the roof of the construction raised by her. It is pertinent to mention here that admittedly the parties to the present suit have multiple litigations pending against each other and the construction raised by plaintiff in her flat or any dispute with respect to the roof of the construction raised by plaintiff is not the subject matter of the present suit. The present suit is filed only with respect to the common rights to use the terrace of Flat No. 70-C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005 by the plaintiff. Therefore, I find no substance in the averments of the defendant that plaintiff is not entitled to the relief of injunction as she has not raised some construction is her flat.
16. The second objection raised by defendants is that in the suit filed by the plaintiff in the year 2013, the Ld. Civil Judge, Ms. Ruchi Aggarwal Asrani had allowed an application filed by plaintiff in the said suit with directions that the parties have agreed that the plaintiff can access the terrace without the permission of the defendants in between 7:30AM to 9:30AM every day and that defendants shall leave the door of the terrace open during that time. That the plaintiff has never alleged CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 15 of 18 the disobedience of the said order and in fact that after passing of the said order the plaintiff never visited the water tanks installed on the terrace. It is admitted by plaintiff/PW-1 in her cross examination that an application was moved in the Court of Ms. Ruchi Aggarwal Asrani, Ld. Civil Judge, Delhi regarding the obstructions by the defendants in plaintiff's access to the terrace of the second floor and that the plaintiff was granted time between 7:30AM to 9:30AM for going to terrace of second floor. It is also deposed by plaintiff in her cross examination that the tenants of the defendants did not permit them to go to the terrace as she was a teacher and used to leave early in the morning and lock the terrace. The record of Civil Suit No. 94829/2016 (old CS No. 11/2013) is Ex.PW3/A and a bare perusal of the plaint of the said suit reveals that the said suit was filed with the prayer that defendants be restrained from demolishing the wall of their Flat No. 70-C or from making any construction on the third room of plaintiff's flat. The matter in issue in the present suit and in the said civil suit is not the same and therefore, any interim Order passed by the Ld. Civil Judge in the said suit does not operate as res judicata and does not completely and effectively adjudicate the dispute with respect to which the present suit has been filed. Furthermore, the contention of defendants that no violation of the said Order was ever reported and hence it stands proved that plaintiff has set up a false case, cannot be accepted in view of the evidence of the present case. As stated above, plaintiff has been able to establish on the basis of preponderance of probabilities that defendants have put lock on the door of the terrace and that plaintiff, her husband and her employees are obstructed by the defendants from accessing the common terrace, where her cemented water tank is installed.
17. Plaintiff has also averred that defendants have installed four tanks on the terrace and water from the said tanks keep flowing on the walls of CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 16 of 18 plaintiff's flat. Accordingly, plaintiff has prayed that defendants be directed to take appropriate steps to evolve a mechanism to stop the flow of water from their tanks to the walls of plaintiff's flat. Plaintiff in order to prove her case has placed on record photographs Ex.PW2/1 to Ex.PW2/9 of the terrace in question. DW-1 has admitted in her cross examination that photograph Ex.PW2/1 (also Ex.DW1/P1) pertains to the door installed at the terrace. However, no question was put to DW-1 with respect to photographs Ex.PW2/2 to Ex.PW2/9. PW-3, who was the photographer who took the pictures, has deposed in his cross examination that he does not know the number of the premises of which photographs have been placed on record and there is no identification mark to determine the premises to which the photographs pertain. Accordingly, plaintiff has failed to prove that photographs Ex.PW2/2 to Ex.PW2/9 pertains to the roof of Flat No. 70-C, Second Floor, LIG Flats, Prasad Nagar, New Delhi-110005. Plaintiff has also not filed on record any photograph showing the seepage of water in her premises. In light to the aforesaid discussion, it is clear that plaintiff has failed to prove that the tanks of the defendants installed on the terrace overflows and that the water from the same seeps into the walls of the plaintiff's flat. Therefore, no injunction can be granted in favour of the plaintiff and against the defendants directing them to take appropriate steps/to evolve a mechanism to stop the water flowing from their tanks to the walls of plaintiff's flat.
18. In light of the aforesaid discussion, Issue No. 1 is decided in favour of plaintiff and against the defendants. Issue No. 2 is partly decided in favour of the plaintiff and against the defendants. Issue No.3 is decided against the defendants and in favour of the plaintiff. Defendants, their agents, servants etc. are directed to remove their locks put on the door of the terrace common to Flats No. 70-A to 70-C, LIG CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 17 of 18 Flats, Prasad Nagar, New Delhi-110005. Defendants, their agents, servants etc. are permanently restrained from locking the door of the terrace common to Flats No. 70-A to 70-C, LIG Flats, Prasad Nagar, New Delhi-110005.
RELIEF:-
19. In view of the findings on the aforesaid issues, the present suit is decreed in favour of the plaintiff and against the defendants in the following terms:-
Defendants, their agents, servants etc. are directed to remove their locks put on the door of the terrace common to Flats No. 70-A to 70-C, LIG Flats, Prasad Nagar, New Delhi-110005. Defendants, their agents, servants etc. are permanently restrained from locking the door of the terrace common to Flats No. 70-A to 70-C, LIG Flats, Prasad Nagar, New Delhi-110005.
Cost of the suit is awarded in favour of the plaintiff to be paid by the defendants.
Decree sheet be drawn up accordingly.
File be consigned to the record room after due compliance.
Announced in the open Court (NEHA GARG)
on 09.11.2022. CIVIL JUDGE-01/CENTRAL
TIS HAZARI COURTS/DELHI
CS No.593616/2016 Smt. Suman Gogia vs. Smt. Chander Kanta & Another Page 18 of 18