Delhi District Court
Kamini Kaushal vs Gurdial Nayar on 31 August, 2019
IN THE COURT OF MS TANIA SINGH,
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
Suit No.599850/2016
Kamini Kaushal
D/o Sh. Kishori Lal
R/o 9A, 31 Ground Floor,
West Extn, Area Karol Bagh,
New Delhi110005 .............. Plaintiff
Versus
1. Gurdial Nayar
R/o 9A, 31, First Floor
Right Side, West Extn Area
Karol Bagh, New Delhi110005
2. Rama Luthra
W/o Sh. Pramod Luthra
R/o 9A, 31. Second Floor
West Extn, Area, Karol Bagh,
New Delhi110005
3. Mamta
W/o Sh. Ashwini Maichand
R/o 9A, 31, Third Floor,
West Extn, Area Karol Bagh,
Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 1 of 14
New Delhi110005
4. Fitness World(Gym)
Through its proprietor/owner
Sh. Vinod Kumar
R/o 9A, 31, Basement,
West Extn, Area,
Karol Bagh, New Delhi110005
5. BSES Yamuna Power Ltd
Through its Division Manager
Central, Shanker Road,
New Delhi. .........Defendants
Date of institution of suit : 13.10.2015
Date of pronouncement of Judgment : 31.08.2019
SUIT FOR PERMANENT INJUNCTION AND MANDATORY
INJUNCTION
JUDGMENT
1. As per plaint the plaintiff is the lawful owner and in possession of free hold property bearing No. R/o 9A, 31 West Extn, Area, Karol Bagh, Ground Floor, New Delhi110005(two side open) area measuring 182'4" Sq. Feet(9'6X19') (hereinafter referred to as 'suit property'). It is averred that the Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 2 of 14 defendant No. 1 to 3 are the other residents of their respective floors of property bearing No. 9A, 31 West Extn, Area, Karol Bagh, New Delhi 110005 and the defendant No.4 Sh. Vinod Kumar is owner of the basement of the said property and defendant No.5 is the electricity supply company(BSES). It is further averred that before 2011 the electricity meters of defendant No. 1 to 3 were installed inside of their house in common passage but on the directions of defendant No. 1 to 3 defendant No.5 has removed the said electricity meters from inside of their house and installed them on the center of the plaintiff's wall without permission of the plaintiff. It is further stated that in the year 2011 defendant No.5 had installed an iron junction box(415 Voltage) in front of the suit property, without taking consent of the plaintiff. It is further averred that the plaintiff has made repeated written complaints for both of the aforesaid issues to defendant No.5 dated 05.04.2011, 15.04.2011, 19.04.2011, 14.06.2011 and on 01.09.2011 but of no avail. It is further averred that defendant No.4 who is running a gym illegally in the said residential property has occupied the property of plaintiff by fixing his sign board and air conditioner on the plaintiff's wall without the permission of plaintiff and damaged the property of the plaintiff, for which the complaint dated 13.06.2011 was made by the plaintiff in the concerned police station. It is further averred that the defendant No.1 to 4 are creating nuisance in the peaceful possession of the plaintiff and extending threats of dire consequences against which the plaintiff has approached the police on various occasions but of no avail. Hence, the present suit.
Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 3 of 142. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court upon which the defendants had put their appearance and thereafter the matter was listed for filing of Written Statements on behalf of defendants.
3. A Joint Written statement was filed on behalf of defendant No.2 & 3. It is stated in the WS that the electricity meters of defendants No.1 to 3 were duly installed at the present position by defendant No.5 about 6 years back because there was an incident of fire in the property and the electricity meters from the previous place had to be removed and were installed at the present place, that at the time of installation of electricity meters no objections were raised by the plaintiff, therefore the installation of electricity meters were installed rightly and correctly by the defendant No.5 and therefore, no cause of action has arisen in favour of plaintiff to file the present suit.
A Joint Written Statement of defendant No.1 and 4 was filed, in which the facts averred in written statement of defendant No.2 and 3 are reiterated and same objections are undertaken.
4. Separate written statement was filed on behalf of defendant No.5, wherein it is stated that the present suit is liable to be dismissed being barred by time. It is further stated that the plaintiff has intentionally concealed the Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 4 of 14 material facts from this Court and the true facts of the case are that there are many electricity connections in the property in question including that of the plaintiff and the defendant No.5 has installed the electricity meters at the instance of various consumers and also at a place accessible to the defendant No.5, that plaintiff is having interse disputes with other defendants and the defendant No.5 is unnecessarily dragged in to the present litigation, that the junction box has been installed by the defendant No.5 at the time of upgradation of the electrical system in Delhi before the Commonwealth Games in Delhi, that the same is installed at a public place with the consent and approval of the appropriate authorities, that the said junction box is essential for distribution of electricity in the area in question and is not causing any trouble to the plaintiff, that no easementary rights of the plaintiff are being affected.
5. Replication was filed on behalf of the plaintiff to the written statement of defendant No.2&3, wherein all the averments made in the plaint were reiterated and contents of written statement were denied.
6. On completion of pleadings, following issues were framed by Ld. Predecessor of this Court vide order dated 27.09.2016:
1. Whether the plaintiff is entitled to the decree of mandatory injunction thereby directing the defendant No.5 to remove the electricity meters of defendant No. 1 to 3 from the wall/property of the plaintiff?OPP
2. Whether the plaintiff is entitled to the decree of Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 5 of 14 mandatory injunction against the defendant No.5 to remove the Iron Junction Box from the front of the plaintiff's shop?OPP
3. Whether the plaintiff is entitled to any damages from the defendant No. 1 to 5 from the date of installation of meters and air conditioner on the plaintiff's wall?OPP
4. Whether the plaintiff is exclusive owner of the disputed wall/common wall of the property?OPP
5. Relief.
7. Record shows that vide order dated 13.02.2016 settlement negotiations took place between the parties and terms were recorded separately qua defendant No.1&5 as per the original memo of parties.
Record further shows that vide order dated 04.08.2016 the prayer clause (a) was deleted upon recording of separate statement of Ld. Counsel for the plaintiff to this effect. Vide separate statement recorded of Ld. Counsel for plaintiff on 09.07.2019 defendant No.1(as per the original memo of parties) was deleted from the array of parties and amended memo of parties is filed on 31.08.2019.
Evidence:
8. In order to prove her case, the plaintiff examined herself as PW1. PW1 tendered her evidence by way of affidavit Ex.PW1/A and relied upon following documents:
(i)Ex.PW1/1(OSR) : Copy of Sale Deed,
(ii)Ex.PW1/2 : Photos of electricity meter, Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 6 of 14
(iii)Mark A : Copy of complaints,
(iv)Ex.PW1/4 : Photos of iron junction box,
(v)Mark B : Copy of complaint dated 17.06.2011,
(vi)Mark C(colly) : Copy of complaint dated 01.09.2011, 10.08.2015, 22.09.2015 and 07.10.2015,
(vii)Mark D : Copy of shifting orders from defendant No.5,
(viii)Mark E(colly) : Copy of complaints dated 03.10.2015 and dated 07.10.2015,
(ix)Mark F : Copy of charges of water connection paid to DJB
(x)Mark G : Copy of police complaint dated 11.10.2015.
PW1 was duly cross examined by defendant No.5 and discharged. However, PW1 was not cross examined by defendant No.1 to 4 despite opportunities and therefore the right of defendant No.1 to 5 to cross examine PW1 was closed vide order dated 09.10.2018.
9. In defendant's evidence on behalf of defendant No.5, Sh. Devi Lal, Assistant Manager, Power Supply, BSES YPL, Division Shanker Road, New Delhi has been examined as DW1. DW1 tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents:
(i) Ex.DW1/1(colly) : photographs of the suit property,
(ii)Mark A : copy of letter dated 22.09.2015 issued by other defendants to BSES YPL for not shifting the electricity meters.
Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 7 of 14DW1 was duly cross examined by Ld. Counsel for the plaintiff. Opportunity to lead defence evidence on behalf of other defendants was closed vide order dated 17.01.2019.
10. Final Arguments were heard at length and the record is carefully perused by this court.
Issuewise findings: Issue No.1 and 4 are taken up together for consideration.
1.Whether the plaintiff is entitled to the decree of mandatory injunction thereby directing the defendant No.5 to remove the electricity meters of defendant No. 1 to 3 from the wall/property of the plaintiff?OPP
4.Whether the plaintiff is exclusive owner of the disputed wall/common wall of the property?OPP
11. Onus to prove both of these issues was cast upon the plaintiff. The plaintiff has placed on record registered sale deed (Ex.PW1/1) qua the suit property by virtue of which she is an absolute and exclusive owner. Perusal of the sale deed reveals that the suit property has been conveyed in favour of the plaintiff as a free hold property and the plaintiff is having exclusive rights over the suit property which is two side open having a area of 157 square yards, so therefore, when the suit property belongs to the Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 8 of 14 plaintiff the plaintiff is automatically the owner of inner and outer walls of the suit property. As is revealed from the pictures filed on record and also it is an admitted position that the electricity meters of defendant No. 1,2,3 are affixed on the outer wall of the plaintiff. It has come in the WS of defendant No.2 & 3 that the aforesaid electricity meters were duly installed by the defendant No.5 on the wall of the plaintiff six years back as there was a fire incident in the property and the electricity meters were removed to be installed at the present place. It is further stated that at the time of shifting of the electricity meters there was no objection raised by the plaintiff. Defendant No.5 also alleges the same position. However, no evidence has been brought on record by either of the defendants to show the mishappening of fire at the property in question. It has come in the cross examination of the plaintiff that she has no knowledge of the aforesaid fire incident. Further the plaintiff has brought on record letter dated 01.09.2011, 10.08.2015 & 07.10.2015, wherein she has brought to the notice of the BSES i.e. defendant No.5 her objections to the installation of electricity meters at the present position. On the other hand, defendants have not brought on record any evidence to show that the wall on which the present meters are placed is not the exclusive property of the plaintiff. Ld. Counsel for defendant No.5 argues that it is a convenient place for department officials to place the electricity meters at a place which is accessible for meter reading. Further it is Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 9 of 14 argued that the staircase of the property in question is congested with a single floor of 3ft and therefore it is not practical to install the meters near the stair case. Ld. Counsel for defendant No.5 further argues that installation of the meters on the wall does not infringe upon any of legal easementary rights of the plaintiff, therefore, she has no locus to raise this issue. However, this argument is unsustainable in view of the aforesaid finding of the Court that the outer wall of the ground floor is the exclusive property of plaintiff. Further, plaintiff has reiterated in her complaints made to defendant No.5 that she wishes to construct windows for proper ventilation in the wall.
12. Ld. Counsel for plaintiff has filed on record certain photographs which shows that there are proper wooden cabinets fixed for the purpose of electricity meters just near the entry for the ground floor near the staircase. Keeping in mind the facts and circumstances of the case the defendant No.5 is directed to shift the electricity meters of defendant No.1,2 & 3 placed on the exclusive wall of the plaintiff to one place specially designated for electricity meters near the staircase, which is a common area. Issue No.2: Whether the plaintiff is entitled to the decree of mandatory injunction against the defendant No.5 to remove the Iron Junction Box from the front of the plaintiff's shop?OPP Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 10 of 14
13. It is the case of the plaintiff that an iron junction box was fixed in the year 2011 just outside the property of the plaintiff which is infringing upon the movement of her clients from entering and exiting into and from the shop and there is an alternative sufficient space to install the said box at some distance from her property.
14. It is the further the case of the plaintiff that the said junction box can be hazardous or dangerous to her life. To prove her case, plaintiff has filed on record the complaints dated 05.04.2011, 15.04.2011, 19.04.2011, 14.06.2011 and 01.09.2011 addressed to defendant No.5 complaining about the fixation of iron junction box without her consent and further requesting defendant No.5 to shift the same to some other position.
15. Admittedly, the said electric junction box was installed at the present place in 2011 against which several complaints were written to defendant No.5 in 2011 itself. Therefore, the relief of mandatory injunction is hopelessly time barred as the present suit is filed in 2015, which is beyond the period of three years from the date of accrual of cause of action in favour of the plaintiff. Ld. Counsel for plaintiff submits that the cause of action is subsisting as the plaintiff has been making various complaints to defendant No.5 and one such complaint has been made in 2015. However Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 11 of 14 record reveals that the complaint made to defendant No.5 in 2015 pertains to the issue of electricity meters and not the iron junction box.
16. Further, perusal of all the pictures Ex.PW1/4 shows that entry and exit of the plaintiff is from the right side and therefore no easementary right is affected by the said iron junction box. In her cross examination it has come out that the staircase used for her entry and exit was earlier placed on the left side which was later shifted to the right side due to the obstruction created by iron junction box. However, the statement made by the plaintiff is beyond her pleadings and there is no evidence on record in support of her contention and therefore same cannot be considered. Admittedly, the said iron junction box is not on the premises of the plaintiff but on a public place, the plaintiff is, therefore, not entitled to relief of mandatory injunction for shifting of iron junction box as it is installed as per the approval and regulations of the government. Further, it is admitted by the plaintiff in her cross examination that there is a fixed iron grill on the back side of the junction box. The picture (Ex.PW1/4) also reveal that there is an electricity pole behind the iron junction box, therefore, the argument of the plaintiff that the iron box can be shifted to an alternate position is unsustainable. Further, plaintiff has not placed on record any sanction site plan of her property and from bare Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 12 of 14 perusal of the picture of the property it is evident that the plaintiff has undertaken 100% coverage of the suit property. The stairs placed near the entry are iron stairs which are also placed on the public property. It is a settled position that relief of injunction is discretionary and equitable and one who seeks equity must do equity. It is also settled that in order to seek relief of injunction the plaintiff must aver and establish the existence of legal rights, the infraction or likely infraction of which entitle him to the relief of injunction. Plaintiff has failed to show any legal right which is being affected by positioning of iron junction box at the present position on the public property. In the present case, where the plaintiff herself has not come to the Court with clean hands the court cannot grant the relief of injunction in her favour.
Issue No.3 Whether the plaintiff is entitled to any damages from the defendant No. 1 to 4 from the date of installation of meters and air conditioner on the plaintiff's wall?OPP
17. The plaintiff has not brought any evidence on record for this court to assess the amount of damages, which she claims from defendant No.1 to 4 from the date of installation of the electricity meters and air conditioner on the wall of the plaintiff. Further, perusal of the plaint clearly reveals that the suit has not been valued for the purpose of damages. In these circumstances issue Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 13 of 14 No.3 is decided against the plaintiff.
Issue No.5 Relief:
18. In view of the findings given on the aforesaid issues, suit of the plaintiff is partly decreed for mandatory injunction against defendant No.5 with directions to remove the electricity meters of defendant No. 1 to 3 from the wall of the plaintiff to the common area near the staircase.
19. Respective cost of litigation to be borne by the parties.
20. Decree sheet be drawn accordingly.
21. File be cosigned to the record room after due compliance.
Announced in the open Court (TANIA SINGH)
on this 31.08.2019. Civil Judge01/Central,
Tis Hazari Courts/Delhi
Kamini Kaushal vs Love Kumar Seth Suit No.599850/2016 Page 14 of 14