Delhi District Court
Sunita Bhatia vs Savita Yadav on 24 December, 2018
IN THE COURT OF SH. HASAN ANZAR, ADJ06
WEST DISTRICT,TIS HAZARI COURTS
MCA No. 09/18
Sunita Bhatia
W/o Latit Bhatia
R/o WZ 106/106
(Ground floor and first floor)
Rajouri Garden Extension
Delhi
.........Appellant
Versus
Savita Yadav
W/o Zile Singh Yadav
R/o WZ 106/106 (Third floor)
Rajouri Garden Extension
Delhi
........Respondent
Date of Institution : 26.02.2018
Date reserved for Order: 24.12.2018
Date of Order : 24.12.2018
ORDER
1. The appellant/defendant impugns the interim order dated 06.02.2018 passed by Civil Judge (2) West District, THC, New Delhi in CS no. 380/17 tiled as Savita Yadav vs Sunita Bhatia.
2. The respondent / plaintiff has filed a suit for permanent and MCA No 09/18 Sunita Bhatia Vs Savita Yadav Page 1/7 mandatory injunction seeking to restrain the defendant no 13 from locking the iron gates in the stilt parking, making construction in the strilt parking area and other relief.
3. The plaintiff has filed an application under Order 39 rule 1 and 2 CPC seeking the relief of interim injunction to restrain the defendant from not permitting the plaintiff to park his vehicle in the stilt parking and other relief. It has been averred that common stilt parking in the suit property is for the use of all occupants to park their vehicle and no one can claim his / her exclusive right.
4. It has been averred in the application that since February 2017, defendant no 13 have stopped the plaintiff to park his car in the stilt parking.
5. It is also relevant to mention that earlier the plaintiff has filed an application under Order 39 rule 1 and 2 CPC which was disposed of on 19.09.2017. On 19.09.2017, defendant no 1 has made the statement that no illegal construction would be made in the stilt parking area and defendant no 1 has also made the statement that there would be no hinderance ingress and egress of the plaintiff from the suit property through small iron gate.
6. The ld counsel for appellant / defendant has submitted that the present plaintiff/ respondent has filed the second application under Order 39 rule 1 and 2 CPC when the first application was disposed of primarily MCA No 09/18 Sunita Bhatia Vs Savita Yadav Page 2/7 on the statement of defendant no.1.
7. Ld counsel for appellant / defendant submits that the second application under Order 39 rule 1 and 2 CPC is not maintainable and the application should have been dismissed by Ld Trial Court and as the applicant / plaintiff is precluded from filing the second application.
8. Notice of the appeal was issued to the respondent / plaintiff.
9. Counsel for respondent / plaintiff has submitted that the present application is based on the fact that defendants are not permitting the plaintiff to park his vehicle in the stilt parking of the suit property.
10. I have considered the rival submissions made by both the parties and also perused the judgments as filed by counsel for respondent / plaintiff. Ld counsel for respondent has relied upon the judgments i.e Anup Mittal (HUF) vs Kanungo cooperative group housing society ltd 228(2016) DLT528(DB) and Nahalchand Laloochand Pvt Ltd vs Panchali Cooperative Housing Society Ltd AIR 2010 SC 3607.
11. The submission of counsel for appellant is that second application under Order 39 rule 1 and 2 CPC is not maintainable is liable to be rejected as order 39 rule 1 and 2 CPC has not placed any embargo on any party from moving the successive application provided that same is maintainable under law. The reading of plaint and other circumstances MCA No 09/18 Sunita Bhatia Vs Savita Yadav Page 3/7 clearly depicts that in the plaint has set out the grievances that he is not able to use the common area although he has been residing in the flat since 2011 and even the gates were locked by defendants to prevent the plaintiff from using the said passage.
12. The order dated 19.09.2017 would clearly indicate that on the statement of defendant no 1 the first application was disposed of with the direction that plaintiff would be permitted to use the said small iron gate as placed on the main gate.
13. The present application apart from the fact is based on the new cause of action and also his claim to use the common stilt parking as plaintiff is not being permitted to use the stilt parking for parking his car.
14. I have perused the impugned order dated 06.02.2018 whereby ld Trial court has painstakingly has considered the submission as to why the restrain order should be passed by directing the defendants to provide parking space for one of the car of the plaintiff in the stilt parking.
15. Before proceeding to decide on this aspect as to whether impugned order is liable to be upheld or not it would be apposite to refer and rely upon the following passage of the judgment of Hon'ble Supreme court in Wander Ltd and Anr Vs Antox Ltd 1990 (supp)1SCC 727 held that :
"the appellate court will not interfere with the MCA No 09/18 Sunita Bhatia Vs Savita Yadav Page 4/7 exercise of discretion of the first court of instance and substitute it on discretion except whether the discretion has been shown to have been exercise arbitraly or capitiously or whether the Court had ignored to settle the principle of law regulating the ground or refusal of inter locutory injunctions. The appeal against exercise of discretion is said to be appeal of discretion. The appellate court will not reassess the material and seek to reach the consequence different from one reched by the Court below if the one reached by that court was reasonably possible on the material."
16. Considering the law laid down by the Hon'ble Supreme Court while considering the appeal to an order passed by the Court while dealing with the injunction application in the present fact and circumstances in referrence to the present case my answer is that Ld Trial court has rightly exercised its discretion.
17. The impugned order has taken note of each and every aspect as to why the interim relief should have been granted to the plaintiff. It is note worthy to mention that defendant no. 2 have sold the flat to one Mayadevi and the said Mayadevi in turn has sold the said flat to the plaintiff.
18. It is also to be noted that when Sunita Bhatia i.e defendant no 2 MCA No 09/18 Sunita Bhatia Vs Savita Yadav Page 5/7 has sold the property WZ 106/106 , III Floor to Mayadevi the sale deed has described that the property was sold with the free hold rights of the land thereto and when the third floor in the suit property was sold to the plaintiff the same mentions that same is being sold along with the rights in the stilt parking.
19. When defendant no.2 has sold one of the flat of the suit property with rights of the land (freehold) and the said title was passed by Mayadevi to present plaintiff, then defendants would not have any right to prevent or stop the plaintiff from using the stilt parking which is basically the common area.
20. Ld counsel for appellant has submitted that the fact of parking was not mentioned in the sale deed executed in favour of Mayadevi and so the present plaintiff who has purchased the suit property cannot be permitted to park the vehicle in the stilt parking.
21. It cannot be ignored that common area is meant to be used by all persons who are basically the resident of property bearing no. WZ 106/106, Rajouri Garden Extension. The fact as to what would be the cosequence of not mentioning the factum of the parking in the previous sale deed is an issue which requires adjudication and at a interim stage not much discussion can be made and it would not be possible to pass an order that instead of parking the vehicle in the common area, plaintiff should park the vehicle on street. I am conciously not discussing the two judgment as MCA No 09/18 Sunita Bhatia Vs Savita Yadav Page 6/7 cited by counsel for respondent / plaintiff as to whether the plaintiff ultimate entitlement would depend on the conclusion of trial and at this stage it would amount to prejudging the issue.
22. Prima facie both sale deed shows that apart from the flat the plaintiff has right / interest in the land beneath thereto and once this particular fact is considered, at this stage, it cannot be said discretion was wrongly exercised by Ld Trial court.
23. Nothing stated herein above shall tantamount to the expresion of the opinion on the merits of the case.
23. In view of the abovementioned discussion, the appeal filed by the appellant is dismissed. The interim order dated 06.02.2018 as passed by Ld Trial court is upheld.
Appeal file be consigned to Record Room TCR be send back to the Ld Trial court along with the copy of order.
Announced in the Open Court on 24.12.2018.
(Hasan Anzar) Additional District Judge06 West District, THC MCA No 09/18 Sunita Bhatia Vs Savita Yadav Page 7/7