Delhi District Court
Vikas Khandelwa & Ors. vs . Anil Kathuria & Anr. on 3 October, 2011
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IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOM: DELHI
Suit No. 56/10
Vikas Khandelwa & Ors. Vs. Anil Kathuria & Anr.
ORDER
1 This order shall dispose of the application of defendant no. 1/counterclaimant moved application U/O.39 R.1 & 2 CPC. Vide which he is seeking adinterim injunction thereby restraining the plaintiffs from placing any goods in the commons passage and banging their door of flat no. 216 on the AC of the flat no. 217 of defendant no. 1 and from opening the door of windows fixed in their room and lobby of their above said flat no. 216, Navniti Apartments, 51IP Extension, Patparganj, Delhi91 towards the common passage by violating the laws and byelaws of the society till the final disposal of the counterclaim.
2 Facts necessary for disposal of the application of defendant no. 1/counterclaimant are that the that the Suit no. 56/10 1 of 5 2 plaintiffs/defendants are doing so many illegal acts in their flat and in commons passage which the plaintiffs/defendants have no right to do. The defendant no. 1/counterclaimant alleged that the plaintiffs/defendants have raised a wall unauthorizedly and illegally and extended their window in the common passage causing hindrance to the entry of defendant no. 1/counterclaimant and his family members as well as other persons who used to visit his house. The space covered by the plaintiffs/defendants is approximately 2 feet in common passage as per the photographs annexed as annexures. The defendant no. 1/counterclaimant further alleged that the plaintiffs have converted doors of two planks into one, which is not permissible. The said door causing hindrance to the AC of defendant no. 1/counterclaimant by banging on it. The defendant no. 1/counter claimant further alleged that the plaintiffs have extended one window annexed in their lobby, which is just adjacent to the bathroom of defendant no. 1/counterclaimant, which disturbs the privacy of the defendant no.1/counterclaimant. The defendant no. 1/counter claimant further alleged that plaintiffs have been illegally putting large objects such a wooden ladder, big wooden satee and other house hold articles in the commons passage. The defendant no. 1/counter claimant alleged that the illegal acts of the plaintiffs are causing Suit no. 56/10 2 of 5 3 hindrance in the peaceful use of his property. The counter claimant/defendant no. 1 prayed for issuing adinterim injunction. 3 The plaintiffs/respondent have filed reply to the counter claim stating therein that counterclaim is counterblast to the suit filed by them. It is denied that the AC is installed in the right place. It is denied that the plaintiffs have illegally opened one window in the common passage or have encroached the commons space. It is denied that the plaintiffs have covered about 2 feet of space in common passage. It is denied that the plaintiff have illegally converted an additional door of two planks into one. It is denied that the plaintiffs have illegally extended one window adjacent to the bathroom of defendant no. 1. In fact the window in question was already in place when the plaintiff moved in the said flat in 2008. The plaintiff/defendant further denied that the said window effects the privacy of defendant no. 1/counterclaimant and his family members. It is denied that plaintiffs goods are lying in common passage. In fact all the windows facing the common passage and open outwards same. On these grounds plaintiff/defendant prayed for dismissal of the counterclaim.
4 I have heard the arguments of Ld. Counsel for parties on
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interim application of defendant no.1/counter claimant and given my thoughtful consideration to the submissions made on behalf of the parties and also perused the record.
5 Through present application defendant no. 1/counter claimant is seeking three adinterim relief. The first adinterim relief is that the plaintiffs/defendants be restrained from putting the articles in the commons passage which is used for ingress and outgress. I have perused the photographs placed on record by the defendant no. 1/counter claimant as annexures 6A as well as 6B which shows that there there is one ladder as well as one satee as well as some other wooden planks are lying in the common passage. Though there is no fact on record on which date these phtographs were taken. But the defendant no. 1/counterclaimant is claiming that there articles are lying there. Plaintiffs/defendants is directed to remove the same. 6 The another adinterim relief that the plaintiffs/defendants be restrained from opening the door outside and to restrain the plaintiffs/defendants to bang the doors in the AC can not be granted at this stage as it will infructuous the suit of plaintiff as well as get effect the ingress and outgress of plaintiff though single gate entry.
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7 The third adinterim relief is sought by the defendant no.
1/counterclaimant that plaintiff/defendants be directed not to open windows in common passage. The counterclaimant/defendant no. 1 has not mentioned the description of the windows in his counterclaim. He has left the column blank in para D of its counterclaim. It has not been mentioned in para D which photograph specifically shows the windows. No site plan at all placed on record. Rather it seems that it is counterblast to the suit of the plaintiffs. This relief can not be granted as not specified in the counterclaim. The application of defendant no. 1/counterclaimant is partly allowed. 8 Nothing is stated herein tantamount on the expressions on the merits of the case as parties has yet to lead evidence and prove their case on merits.
(Announced in open Court (JAGDISH KUMAR)
today i.e 03.10.11) JSCC/ASCJ/GJ(East)
KKD COURTS
Suit no. 56/10 5 of 5
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IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ KARKARDOOM: DELHI Suit No. 56/10 Anil Kathuria & Anr. Vs. Vikas Khandelwa & Ors.
ORDER 1 This order shall dispose of the application of the applicant/plaintiff U/O.39 R.1 & 2 r/s Sec.151 CPC. Vide present application plaintiff is seeking adinterim injunction thereby restraining the defendant no. 1 from operating the AC installed adjacent to the plaintiffs' entry door during the pendency of the suit. 2 Facts necessary for disposal of the present application are that the plaintiff is the owner and resident of Flat no. 216, Navniti Aartments, 51, IP Extension, Patparganj, Delhi92 and residing therein since October, 2008. The defendant no. 1 is occupier/owner of the adjacent flat no. 217, Navniti Apartments, 51, IP Extension, Patparganj, Delhi92 and defendant no. 2 is the Group Housing Suit no. 56/10 6 of 5 7 Society where the flat of the plaintiffs as well as defendant no. 1 situates. It is submitted that defendant no. 1 installed a 1.5 ton window AC on the top of the window adjacent to the plaintiff's flat, projecting about 2 feet outside the window just close to the plaintiff's sole entry door to their flat. The AC obstructs the main door while opening outwards outside and door can be opened partially. Even while shifting to their flats the plaintiffs had removed their entry door to bring their bulky household items. It is submitted that during summer the said AC emits hot air, noxious gases and noise which causes great distress and discomfort to the plaintiffs. Even the dripping water of AC makes the floor wet and slipper near the plaintiff's flat. The plaintiffs can not even install an iron gate at their entry door for security purposes. The plaintiffs asserted that they have made many complaints to the concerned President of defendant no. 2 as well as requested to the defendant no. 1 for removal of the AC but the AC has not been removed by the defendant no. 1. The plaintiff asserted that the running of the AC during the summoner creates noise and releases hot gases and prayed for adinterim relief. 3 WS to the plaint of the plaintiffs filed by the defendant no.
1. It is alleged by the defendant no. 1 that suit of the plaintiff is not Suit no. 56/10 7 of 5 8 maintainable as the defendant no. 2 has provided ventilator on the top of the window where the AC is installed. There is no other ventilation or window provided in the room fresh aid or light. It is submitted by the defendant no. 1 that he has an absolute right to install his AC as per the building byelaws. The defendant no. 1 further stated in his WS that there is no obstruction in the opening of the door. The plaintiff has installed one folds door which has to be opened inside the room, but same is opened outside which is against the byelaws of society i.e. defendant no. 2. The defendant no. 1 further alleged that the plaintiff has installed a split AC outside the window of their room in the common passage which also exhausting hot air and raised the question if the hot air of the AC installed by the plaintiff himself is not harming the plaintiff then how the hot air of the AC installed by the defendant no. 1 can harm the plaintiff. The defendant no. 1 further replied in his WS that he has easementary rights of free air, only by the window provided in the room, as he has been using the same for last 13 years. The defendant no. 1 further stated that as per the approved plan of society the main door of the flat is suppose to open inside the house and not outside, which the plaintiffs are illegally demanding in the present suit. It is submitted that the AC is exhausting the same air with the help of fan at its back in the open Suit no. 56/10 8 of 5 9 area and not in the house of the plaintiff. The defendant no. 1 has prayed the dismissal of the present suit.
4 The defendant no. 1 has also filed the counterclaim alleging that plaintiff is doing so many illegal acts in his flat and in commons passage which plaintiff has no right to do. The defendant no. 1 alleged that the plaintiff has raised a wall unauthorizedly and illegally and extended his window in the common passage causing hindrance to the entry of defendant no. 1 and his family members as well as who ever comes to visit his house. The space covered by the plaintiff is approximately 2 feet in common passage as per the photograph annexed as annexures. The defendant no. 1 further alleged that the plaintiffs have converted doors of two planks into one which is not permissible. The said door causing hindrance to the AC of defendant no. 1 by banging to the AC. The defendant no. 1 further alleged that the plaintiffs have extended one window annexed in their lobby which is just adjacent to the bathroom of defendant no. 1 which disturbs the privacy rights of the defendant. The defendant no. 1 further alleged that plaintiffs have been illegally putting large objects such a wooden ladder, big wooden satee and other house hold articles in the commons passage. The defendant no. 1 alleged that Suit no. 56/10 9 of 5 10 the illegal acts of the plaintiffs are causing hindrance in the peaceful use of his property.
5 The WS has also been filed by the defendant no. 2 in which defendant no. 2 has replied that the AC installed by the defendant no. 1 abutting the only entry of flat no. 216 and was creating hindrance to the entry of plaintiffs. It is further replied by the defendant no. 2 that defendant no. 1 was advised by its high power committee to remove the said AC.
6 MCD has not filed any WS rather status report has been filed stating therein that defendant no. 1 has installed an AC illegally. 7 Replication to the WS of defendants no. 1 and 2 filed by the plaintiff in which he denied the averments of the defendants made in the WS and reiterated and reaffirmed the contents of the plaint. 8 I have heard the arguments of Ld. Counsel for parties and given my thoughtful consideration to the submissions made on behalf of the parties and also perused the record.
9 It is admitted by the defendant no. 1 that he has installed
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the AC in the window. It is also admitted by the defendant no. 1 that the door of the plaintiff bangs to the AC. But it is stated by the defendant no. 1 in his WS that as per the byelaws of the society the door has to be opened inside the house and not outside the house. But no such byelaws and rules has been placed on record. The rules als0 not placed on record by defendant no. 1 that only two planks door can be installed by the residents of the society, occupier the flats. Admittedly, the AC used to release the hot air which is harmful to the health. The AC is just installed in front of the entering door of the plaintiffs, which obstructs the opening of the door of the plaintiffs. The plea of the defendant no. 1 that the window is meant for fresh air and light can not be accepted as defendant no. 1 himself has installed the AC at the site of window. The situation may be different if AC is not installed there. As then the air and light could have opened to the defendant no. 1. So, I am of the view that prima facie case is in favour of the plaintiff. There will be irreparable loss to the plaintiffs and they will also suffer irreparable lost if adinterim injunction is not granted. So, defendant no. 1 is restrained to operate the AC installed in the window just nearby the opening gate of the plaintiff till the final disposal of the suit.
10 Nothing is stated herein tantamount on the expressions
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on the merits of the case as parties has yet to lead evidence and prove their case on merits.
(Announced in open Court (JAGDISH KUMAR)
today i.e 03.10.11) JSCC/ASCJ/GJ(East)
KKD COURT
Suit no. 56/10 12 of 5
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Suit No. 56/10
03.10.11
Present: Counsel for plaintiff.
Counsel for defendant.
Arguments heard on application of plaintiff as well as defendant U/O.39 R.1 & 2 CPC.
Put up at 4.00 p.m. for order.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/03.10.11 At 4.00 p.m. Present: Proxy counsel for parties.
Vide separate order the application of plaintiff U/O.39 R.1 & 2 CPC is allowed. Defendant no. 1 is restrained to operate the AC installed in the window just nearby the opening gate of the plaintiff till the final disposal of the suit.
Application of defendant no. 1 U/O.39 R.1 & 2 CPC is partly allowed. Plaintiffs/defendants is directed to remove his articles lying in the common passage.
Put up on 16.11.11 for framing of issues and A/D of documents.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/03.10.11
Suit no. 56/10 13 of 5