Delhi High Court
Ramina Kumar Minocha vs Arun Dewanwala & Ors. on 8 August, 2013
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ F.A.O. No.245/2009
Decided on : 08.08.2013
RAMINA KUMAR MINOCHA ...... Appellant
Through: Ms.Anita Sahani, Advocate.
Versus
ARUN DEWANWALA & ORS. ...... Respondents
Through: Mr.Rama Shankar, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is an appeal against the order dated 04.04.2009 passed by the learned ADJ in Suit No.116 of 2009 titled Arun Dewanwala & Ors. Vs. Mrs.Ramina Kumar Minocha & Anr., by virtue of which the prayers of the respondents/plaintiffs under the application Order 39 Rules 1 & 2 CPC have been granted. In addition to this, the appellant/defendant has been restrained from installing the iron grills and gates leading to the common terrace area. It may be pertinent to mention that the prayer in the application of the F.A.O. No.245/2009 Page 1 of 11 respondents/plaintiffs under Order 39 Rules 1 & 2 CPC was that the appellant/defendant, her legal heirs, servants, associates, agents and family members be restrained from encroaching upon the common portion/terrace at the second floor, putting malba and garbage in the common portion, preventing, interfering, creating hindrance and nuisance in the use of common facilities and staircase, terrace at the second floor and at the top of the flat of the appellant/defendant No.1 situated in the property bearing No.E- 492, Greater Kailash-II, New Delhi and raising any construction, installing, erecting any fixtures and fittings in the common portion of the property.
2. Briefly state the facts of the case are the respondents/plaintiffs are claiming to be the owners or purchasers of various flats out of total five flats existing on property No.E-492, Greater Kailash-II, New Delhi. It has been alleged that in their documents of title purported to have been executed by their vendors, they have been given the right not only over the common portion but also the user of common terrace on the second floor of the suit property where water tanks and other common amenities such as TV antenna are F.A.O. No.245/2009 Page 2 of 11 placed. It is alleged that the appellant/defendant had purchased a flat no.301 on the third floor opposite the common terrace in or around the year 2007 and thereafter she had installed iron grill and a gate on the staircase leading to her flat for the purpose of her security as a consequence of which ingress and egress of the respondent/plaintiffs to the common terrace area opposite her flat, which is one floor lower and where common water tanks and TV antenna of the residents have been installed, has been stopped. Since the matter could not be resolved by the parties, the respondents/plaintiffs, who are three in number, were constrained to file a suit for declaration, permanent and mandatory injunction claiming themselves to be the lawful users of the common terrace area as being common portion and also seeking mandatory injunction for the removal of the iron grills and the gate purported to have been put up by the appellant/defendant in the staircase of the second floor.
3. The appellant/defendant filed her written statement and contested the claim. She has stated that the documents of purchase of the property of the respondent/plaintiffs showed that they had their F.A.O. No.245/2009 Page 3 of 11 servant quarter in the basement and only the water tanks were kept on the second floor. It was also alleged that one of the respondent/plaintiffs had pitched a structure on the terrace where he had located his servant who used to pose a security hazard to the appellant/defendant. In addition to this, he would also bathe and do all kinds of things which would not be approved of by any woman.
4. On the basis of these pleadings, the suit was filed. Along with the plaint, the respondent/plaintiffs had filed an application seeking an ad interim relief which was similar to the main relief claimed in the plaint except that no prayer for removal of iron grills and the gate was made.
5. The reply to the application was filed and the learned ADJ, after hearing the arguments, observed that the concern of the appellant/defendant pertaining to her security was understandable, but under the garb of security, she could not create hurdles in the enjoyment of the common terrace on the second floor of the building where common facilities like water tanks and TV antennas were installed as that were common to all the residents of the F.A.O. No.245/2009 Page 4 of 11 building. Accordingly, the learned ADJ observed that all three parameters for grant of any injunction were satisfied it restrained the appellant/defendant in terms of the prayer clause of application under Order 39 Rules 1 & 2 CPC. In addition to this, the learned ADJ also restrained the appellant/defendant from installing the iron grills and the gate in the way leading to the common terrace area
6. The appellant/defendant, feeling aggrieved, has preferred the present appeal against the impugned order.
7. I have heard the learned counsel for the appellant as well as the learned counsel for the respondents.
8. The main grievance of the learned counsel for the appellant is with regard to the factum of the direction passed by the learned ADJ that the appellant/defendant was restrained from installing any iron grills and the gate in the staircase which she contended was in derogation to the averments made by the respondent/plaintiffs themselves. In this regard, the attention of the court was drawn to the prayer clause in the plaint of the respondent/plaintiffs to say that the respondent/plaintiffs themselves were claiming mandatory injunction for removal of the iron grills and the gate which clearly F.A.O. No.245/2009 Page 5 of 11 shows that on the date when the impugned order was passed the iron grills and the gate were in existence while as by passing a restraint order the learned ADJ has not only ignored the pleadings but has also given an impetus to the respondents/plaintiffs to remove the said iron grills and the gate. It has been stated that as a matter of fact under the garb of this interim order, the respondents/plaintiffs have removed the gate on the staircase as a consequence of which, the security of the appellant/defendant has been threatened. Learned counsel has also referred to the report of the local commissioner appointed by the trial court wherein it has been clearly reflected that there was a gate in existence in the staircase going to the terrace of the second floor. It was also urged by the learned counsel for the appellant/defendant that the terrace did not form a part of the sale transaction between the Respondent No.3 and Ms.Usha Chadha. In this regard, she has drawn the attention of the court to the said relevant documents.
9. So far as the respondents/plaintiffs are concerned, the learned counsel has contended that Ms.Usha Chadha has not only transferred her interest in one of the flats in question to Respondent F.A.O. No.245/2009 Page 6 of 11 No.3 but has also given him servant quarter along with user of open toilet on the terrace of the second floor and, therefore, Respondent No.3 has every right to use the terrace on the second floor as well as the open toilet.
10. I have carefully considered the submissions of the learned counsel for the parties and have also gone through the record.
11. So far as the right of the Respondent No.3, who has derived his right to the property from Ms.Usha Chadha, is concerned, no doubt in her sale deed Ms.Usha Chadha has mentioned that apart from the flat in question, she has given a servant quarter and an open toilet on the terrace of the second floor to the said respondent/plaintiff but merely because this is mentioned in his document would not suffice because Ms.Usha Chadha must originally have the right to have a servant quarter and user of open toilet on the terrace of the second floor. The dictum which is well known and often quoted is that nobody can pass on a title better than what he has.
12. The learned counsel for the respondents/plaintiffs has not been able to point out to the court any document which would show that Ms.Usha Chadha had a right to have a servant quarter and user of F.A.O. No.245/2009 Page 7 of 11 open toilet on the terrace of the second floor. In such a contingency, it was totally inappropriate on the part of the learned counsel for the respondents/plaintiffs to contend that Respondent No.3 has a right on the terrace of the second floor to erect or user of a servant quarter. This does not, in my view, detract from the user of the terrace on the second floor as a common area because admittedly common facilities like water tanks, TV antennas etc. have been installed over the said area to which respondents/plaintifffs have to be given access but this access to the said terrace is not be unhindered, unrestricted and unregulated. The person who is living opposite the common terrace of the second floor has every right to regulate the entry, and more so in the instant case, when she happens to be a woman living alone with her children.
13. It is common knowledge that security of woman is a big concern in a city like Delhi. All and sundry try to commit crime against women. Under these circumstances, the appellant/defendant was well within her rights to protect herself and it was with this intention that she seemed to have erected the iron grills and the F.A.O. No.245/2009 Page 8 of 11 gate in the staircase to protect herself and provide some kind of security. It is strange that the respondents/plaintiffs have themselves in their suit for declaration, permanent and mandatory injunction claimed that a direction be issued to the appellant/defendant to remove the iron grills and gate, clearly meaning that at the time when the suit was filed, the iron grills and the gate were in existence at the place in question. Yet the learned ADJ seemed to have inadvertently omitted this fact and passed a restraint order against the appellant/defendant that she should not erect the iron grills and the gate so as to stop the access of the respondent/plaintiffs. The existence of the iron grills and the gate at the place in question is also verified prima facie by the report of the local commissioner who has stated that there was a gate in existence and photographs in this regard have been placed on record. Therefore, to that extent, the order which has been passed by the learned ADJ is not sustainable and accordingly that portion of the order which restrained the appellant/defendant from installing the iron grills and the gate at the place in question in the staircase is set aside and so far as the other portion of the impugned F.A.O. No.245/2009 Page 9 of 11 order regarding unhindered access to the terrace floor for the purpose of maintenance of common facilities of water tanks, TV antennas etc. is concerned, respondents/plaintiffs will be provided access by the appellant/defendant.
14. Needless to say that this has to be regulated and it cannot be unregulated so as to cause hindrance in the enjoyment of flat by the appellant/defendant or to impinge upon on her privacy or to create a security threat to her. I have been informed that during the pendency of the suit, and after passing of the order, the respondents/plaintiffs have removed the iron grills and the gate, which, of course, has been denied by the learned counsel for the respondents/plaintiffs but the fact of the matter remains that the iron grills and the gate is not in existence and the interim order in this regard has been set aside. Therefore, the status quo ante must be permitted to be restored by the appellant/defendant which normally the respondents/plaintiffs ought to have been asked to do. I, accordingly, in this regard, permit the appellant/defendant to have the status quo ante restored which was in existence at the time when the suit was filed. With this modification, the order of the F.A.O. No.245/2009 Page 10 of 11 learned ADJ stands modified and the appeal stands allowed partially.
15. A copy of the order be sent to the trial court for information.
V.K. SHALI, J.
AUGUST 08, 2013 dm F.A.O. No.245/2009 Page 11 of 11