Delhi High Court
Hemant Kumar vs Sadhna Shrma & Ors. on 15 May, 2013
Equivalent citations: 2013 (3) ADR 105, (2013) 129 ALLINDCAS 481 (DEL), (2013) 2 CHANDCRIC 258, (2013) 2 DLT(CRL) 795, (2013) 200 DLT 632
Author: M.L. Mehta
Bench: M.L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) Nos. 3015/2012
Date of Decision: 15.05.2013
HEMANT KUMAR ........Plaintiff
Through: Mr. Amiet Andlay & Mr.
Arun Kumar Sharma, Advs.
Versus
SADHNA SHRMA & ORS. ......Defendants
Through: Dr. R. Sasan, Adv. for D1.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
I.A. Nos. 18259/2012, 23201/2012 and 3480/2013
1. This is a suit for permanent and mandatory injunctions. Along with the suit, the plaintiff filed I.A. No. 18259/2012 under Order XXXIX Rule 1, 2 and 3 seeking an interim injunction. The plaintiff also filed an Application under Order XXVI Rule 9 for appointment of Local Commissioner to carry out inspection of the suit premises. Vide Order dated October 1, 2010, this Court passed an ex-parte injunction as under:
"In view of the arguments urged on behalf of the plaintiff, defendant nos. 1 and 2 are directed to remove any obstruction caused to the plaintiff from accessing of his overhead water C.S. (O.S.) Nos. 3015/2012 Page 1 of 13 tanks and the terrace in the property bearing no. B-54, South Extension Part - II, New Delhi. Defendants no. 1 and 2 are also restrained from in any manner causing any obstruction or stoppage of water supply to the plaintiff from the overhead water tanks situated on the terrace."
2. Vide the same Order, this Court also appointed Mr. Rohit Nagpal as a Local Commissioners to visit the suit premises and report if the plaintiff's water supply lines are in any manner being interfered with so as to cause the situation of the plaintiff not receiving any water supply in the ground floor premises. Thereafter, the plaintiff, alleging non-compliance of the aforesaid order by the defendant, filed a Contempt Petition No. 108/2012. Meanwhile, the defendant has also filed an I.A. 3480/2103 under Order XXXIX Rule 4, seeking the vacation of the ex-parte injunction dated October 1, 2010. The plaintiff has also filed I.A. 23201/2012 under Sec. 151 seeking permission to have access to the overhead water tanks placed on the terrace floor of the suit premises.
3. The plaintiff submits that he is the lawful owner of the suit premises i.e. the ground floor of the property bearing No. B-54 South Extention Part -I which comprises of three bedrooms, drawing cum dining room, kitchen, lobby, front veranda, open space in the front as well as the backyard, garage and 50% of the terrace rights with the right to use the common stair case and common entrance. The plaintiff submits that he has purchased the ground floor of the suit C.S. (O.S.) Nos. 3015/2012 Page 2 of 13 property from Sh. Ashok Prakash Sharma, jointly along with defendants no. 3 and 4, who are being proceeded as proforma parties. Defendant no. 2, Sh. Vinod Prakash Sharma, is the brother of the said Sh. Ashok Prakash Sharma, and that defendant no. 1 is the wife of defendant no. 2; who resides in the first floor of the said property. The plaintiff submits that the suit property was earlier owned by one Sh. Sugan Chand Sharma, who died intestate on February 16, 1984 leaving behind a widow, daughter and two sons. Subsequently, the widow and the daughter of the deceased relinquished their 2/4th of the undivided share of the said property in favour of the two sons of the deceased.
4. The plaintiff submits that the said Sh. Ashok Prakash Sharma and the defendant no. 2 partitioned the entire suit property amongst them vide a duly registered Partition Deed dated July 7, 2002. And that as per the said Partition Deed, Sh. Ashok Prakash Sharma, became the absolute owner of the ground floor of the suit property comprising of bedrooms, drawing cum dining room, kitchen, lobby, front veranda, open space in the front as well as the backyard, garage and 50% of the terrace rights with the right to use the common stair case and common entrance, which portion was sold to the plaintiff vide a Sale Deed dated July 12, 2010. The plaintiff also submits that pursuant to the purchase of the ground floor and half of the terrace rights on the first floor along with 50% of the indivisible ownership rights of the land underneath the property, the defendant no. 1 and 2 purportedly approached the plaintiff with C.S. (O.S.) Nos. 3015/2012 Page 3 of 13 proposal to re-develop the property and dissuaded the plaintiff from using the ground floor. During which time, the plaintiff submits that he was allowed to freely use the common stair case and other common areas of the property without any objection from defendant no. 1 and 2.
5. Plaintiff further submits that the said arrangement to redevelop the property never fructified, and thereafter, the plaintiff decided to reside in the first floor of the said property and moved into the premises in September 2012 along with his wife and two small children. The plaintiff submits that to his sheer disbelief, the defendants no. 1 and 2 had allegedly bricked up the door from the ground floor opening into the common stair case lobby, which is the only way to go to the terrace in the first floor of the suit property. And that despite requesting the defendants no. 1 and 2, they refused to remove the brick wall, thereby preventing the plaintiff's access to the terrace. The plaintiff also submits that the defendant no. 1 often called upon the local police by making false allegations against the plaintiff. The plaintiff submits that due to the prevalent situation, he installed a small iron gate in the lobby verandah which is exclusively in the possession of the plaintiff. And also had installed CCTV cameras in the ground floor, which eventually became a bone of contention between the plaintiff and the defendants no. 1 and 2, leading to several other scuffles and altercations before the police. The plaintiff states that he has tried to reason with the C.S. (O.S.) Nos. 3015/2012 Page 4 of 13 defendants on many occasions, but the efforts apparently went in vain.
6. The plaintiff submits that on September 26, 2012, defendants no. 1 and 2 illegally disconnected the water supply from the overhead water tanks connecting to the ground floor. Since the plaintiff is residing in the ground floor with his family including small children, the plaintiff was forced to resort to a temporary arrangement to establish a direct connection for the municipal water to the ground floor. Since the water pressure is slow, the plaintiff submits that this arrangement was not sufficient for his daily chores and is causing immense hardship to his family.
7. In the written statement filed by the defendant no. 1, it is submitted that the instant suit is a collusive litigation between the plaintiff as well as defendants no. 2 to 4 in order to take forcible possession of the terrace suit property. The defendant also submits that the plaintiff has not approached this Court with clean hands to the effect that he has concealed that there is no water tank in the first floor terrace which provides water supply to the ground floor premises, and that the ground floor premises has been provided with an exclusive water tank over the bathroom at the ground floor, since the time of Late Sh. Sugun Chand Sharma. The plaintiff submits that in light of the decision of the Apex Court in the case of S.P. Changal Varaya Naidu v. Jagan Nath, AIR 1994 SC 853, this suit is liable to be dismissed. The defendant also contends that C.S. (O.S.) Nos. 3015/2012 Page 5 of 13 the plaint is liable to be rejected under the provision of Order VII Rule 2 of the CPC because there is no cause of action to file the present suit against defendant no. 1. The defendant also submits that the suit is bad for non-joinder of necessary parties as Sh. Ashok Prakash Sharma, from the whom the plaintiff has purchased the suit property has not been made party to the instant suit, because if any rights happen to accrue in favour of the plaintiff, arise from the erstwhile owner, Sh. Ashok Prakash Sharma and that the plaintiff should claim possession from him.
8. The defendant also submits that she has been granted relief of injunction by the Mahila Court at Saket, New Delhi in the petition under Domestic Violence Act against the defendant no. 2 and others to restrain them from dispossessing her from her possession of the suit property. The defendant also submits that her daughters have also been granted stay of possession in a civil proceeding against defendant no. 2.
9. The defendant also states that the plaintiff's predecessor in interest, had no right of way to the terrace of the suit property because the door from the lobby was closed by a brick wall even before the plaintiff purchased the property. And that the arrangements for water supply to the ground floor premises were also made over the bathroom much before the plaintiff purchased the premises. The defendant alleges that the plaintiff and his associates are property dealers, financers and builders who purchase disputed properties, C.S. (O.S.) Nos. 3015/2012 Page 6 of 13 and that they have purchased the suit property with a view to dispossess the replying defendant forcibly. She also submits that she is a housewife living alone with one handicapped daughter of marriageable age and a son. And that she does not receive any maintenance from her husband and has no financial strength.
10.The defendant also submits that defendant no. 2 along with his younger brother, Sh. Ashok Prakash Sharma harassed her and tried to forcibly evict her from the suit premises. And that the said Sh. Ashok Prakash Sharma even went to the extent of filing a suit dated July 16, 2007 for possession, mesne profits, damages and injunction against her and her children qua the suit premises and the right of way to the terrace. However, she states that the said suit was dismissed for non-prosecution on September 29, 2009. Thereafter, the said Sh. Ashok Prakash Sharma made various attempts to forcibly and unlawfully dispossess the defendant from the suit property, for which reason, the defendant was left with no other option but to seek the intervention of the Mahila Court.
11.The defendant also submits that her daughters Ms. Anu Sharma and Ms. Meena Sharma have filed a suit no. 108/10 titled as "Anu Sharma & Ors. v. Ashok Prakash Sharma & Ors." seeking a declaration and permanent injunction against Sh. Ashok Prakash Shamra. She further submits that Sh. Ashok Prakash Shamra has sold his alleged share of the property to the plaintiff and defendant no. 3 and 4 on July 12, 2007 at throw away price as the property C.S. (O.S.) Nos. 3015/2012 Page 7 of 13 was tagged as disputed. The defendant also submits that she has filed a Civil Suit under Suit No. 339/2012 before the Civil Judge, Saket, New Delhi regarding the installation of an extra gate as well as CCTV cameras and tampering of MTNL telephone as well as electricity lines by he plaintiff. The defendant has also raised objections to the Local Commissioners Report dated November 8, 2012, stating that the Local Commissioner has acted upon the instructions of the plaintiff's counsel.
12.I have heard the counsels for the parties at length. I have also perused through the documents placed on record including the Report of the Local Commissioner dated November 8, 2012 as well as the Complaints made to the local police by the parties, from time to time. I am sensitive of the fact that the right to have access to water supply is essential. However, based on a careful examination of the documents paced on record, I find that the intention of the plaintiff in the instant case is questionable and malafide. Although this application has been filed under the guise of securing water supply for the ground floor premises, it is rather apparent to me that the ulterior motive of the plaintiff is to gain access to the common areas of the suit property, including the terrace; the access of which denied by the defendant to not only the plaintiff, but also his predecessor in interest.
13.At the very outset, it must be noted that the plaint does not disclose the presence of any water tanks over the bathroom in the ground C.S. (O.S.) Nos. 3015/2012 Page 8 of 13 floor premises. Moreover, even while mentioning about the direct connection of the municipal water connection to the ground floor premises, the plaintiff has concealed the presence of the water tanks over the bathroom. However, during the oral arguments, the counsel for the plaintiff has conceded to the existence of the water tanks above the bathroom in the ground floor premises, albeit the plea that the pressure of the water is low and not conducive for usage in the faucets and commode. Furthermore, the water bills of the ground floor premises show that there is ample supply and consequent consumption of water at the ground floor. Although the Local Commissioner has not reported about the existence of the aforesaid alternative arrangement for water supply for the ground floor premises, it must be borne in mind that the mandate of this Court to the Local Commissioner was limited to investigating and reporting if the plaintiff's water supply lines were in any manner being interfered with so as to cause the situation of the plaintiff not receiving any water supply from the water tanks situated in the terrace. Moreover, the defendant no. 1 has placed on record a photograph of the water tank installed above the bathroom in the ground floor premises.
14.The defendant no. 1 in paragraph 10 of the Written Statement specifically states that the predecessor in interest of the plaintiff, Sh. Ashok Prakash Sharma had no right of way to the terrace as the door from the lobby was closed by brick walls. Undisputedly, a suit for possession, mesne profits, injunction and damages qua the suit C.S. (O.S.) Nos. 3015/2012 Page 9 of 13 premises including the terrace rights was filed by Sh. Ashok Prakash Sharma against defendant no.1, which was eventually dismissed for non-prosecution. That being the case, it comes out to be that even Sh. Ashok Prakash Sharma was not in possession of the terrace at the time he sold the premises to the plaintiff. In the said suit filed by Sh. Ashok Prakash Sharma, it was averred by him that defendant no.1 is in unauthorised occupation of the terrace along with the barsati and has put a lock on the door connecting the common lobby to the staircase. And that the entire terrace was in the possession of defendant no. 1, albeit unauthorisedly. Therefore, it cannot be said that the plaintiff was given the physical possession of the terrace by A. P. Sharma. The plaintiff would step into the shoes of the predecessor in interest as regards the title and possession of the suit premises.
15.Furthermore, it can be seen from the plaint that the plaintiff purchased the suit property in July, 2010, but moved into the ground floor premises only in September, 2012. However, it is interesting to note the statement of the plaintiff in the first police complaint dated September 16, 2012:
"Till date, we are use [sic] the common entrance stair for going towards the terrace of the first floor thereby obstructing the ingress and egress of the undersigned of the 50% terrace right of the property in question. She is also obstructing the undersigned in using the common area of the said property."C.S. (O.S.) Nos. 3015/2012 Page 10 of 13
16.In light of the backdrop of events between the parties, it becomes amply clear that the defendant no. 1 was in exclusive possession of the terrace even before the suit premises were sold by Sh. Ashok Prakash Sharma to the plaintiff. Therefore, it cannot be said that the plaintiff had free access to the terrace before the September 16, 2012. This is further corroborated by the fact that the defendant was filing a counter-complaint at 4.40pm in the evening of the same day when the plaintiff had filed a police complaint i.e. September 16, 2012.
17.Furthermore, the plaintiff has also filed a subsequent police complaint on September 27, 2012 in which he states:
"Smt. Sadhna Sharma has bricked up the passage to the terrace from the common area on the ground floor as a result of which I am unable to go to the terrace and access the water tanks installed on the terrace/roof."
However, it can be seen from the plaint that the plaintiff alleges that he found the door from the ground floor opening into the common staircase lobby bricked up on the very day when he shifted to the ground flood premises. However, this allegation has not been raised in the earlier police complaint dated September 16, 2012.
18.Therefore, I find that the actions of the plaintiff reek of malafide intention. I find it pertinent to reproduce the observation of the Apex Court in the S.P. Chengal Varaya Naidu Case (supra), which C.S. (O.S.) Nos. 3015/2012 Page 11 of 13 pithily states the doctrine of clean hands as followed by the Courts in India:
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
19.I find that the plaintiff has approached this Court with unclean hands by concealing the existence of the water tanks above the bathroom in the ground floor premises of the suit property. I am also of the opinion that the non-impleadment of the predecessor in interest, Sh. Ashok Prakash Sharma strongly suggests the existence of collusion between him and the plaintiff. In any event, I am inclined to accept the argument of the defendant to the extent that the plaintiff's rights in the suit property with respect to the common staircase, terrace and roof rights, etc. is derived from his predecessor in interest. This suit filed by Sh. Ashok Prakash Sharma having been dismissed vide order dated September 29, 2009; the prima facie view is that defendant no. 1 is in exclusive possession of the terrace to the exclusion of the plaintiff. In the present proceeding, the legality or otherwise of the said possession by defendant no. 1 cannot be looked into, being the subject matter C.S. (O.S.) Nos. 3015/2012 Page 12 of 13 of other appropriate legal proceedings. Further, the plaintiff also seems to be indirectly trying to establish his title and possession over the terrace floor, which as noted above is in the possession of the defendant no. 1.
20.Thus, from the above, it is comes out to be that the plaintiff has not been able to establish prima facie, that he was in possession of the terrace floor. The plaintiff, as stated above already has a water tank installed above the bathroom for his ground floor premises. Thus, the balance of convenience lies in maintaining the status quo as regards the terrace floor, till such time the rights of the plaintiff are determined by a competent Court. As the plaintiff is getting supply of water, he is not suffering irreparable loss.
21.Thus, from the above, both the applications of the plaintiff are dismissed. And the defendant's application under Order XXXIX Rule 4 is allowed. The ex parte injunction granted on October 1, 2010 stands vacated.
M.L. MEHTA, J.
MAY 15, 2013 kk C.S. (O.S.) Nos. 3015/2012 Page 13 of 13