Delhi District Court
Jai Parkash Gupta & Ors. vs . N. S. Dang & Ors. on 6 January, 2011
IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOMA COURTS: DELHI
Suit No. 677/09
Jai Parkash Gupta & Ors. Vs. N. S. Dang & Ors.
ORDER
1 This order shall dispose of the application of the plaintiff moved u/o 39 Rule 1 & 2 r/w Section 151 CPC. Vide this application plaintiff is seeking adinterim injunction against the defendants thereby directing the defendant no. 1 and 2 to allow the plaintiffs from cleaning the sewerage system and further not to lock the jaali affixed illegally by the defendants no. 1 and 2 on the open space/shaft, till the final disposal of the suit. 2 Facts necessary for the disposal of application are that the plaintiff no. 1 is the husband of plaintiff no. 2. The plaintiff no. 1 has purchased the property property no. C205, First Floor, Block C, Railway Board Employees Cooperative Housing Building Society Ltd., Anand Vihar, Delhi92 in the name of plaintiff no. 2 through a Suit no. 677/09 Page 1 of 7 registered sale deed. It is submitted that while delivering the possession of the first floor portion by Sh. R. K. Tangri has withheld the possession of one of the Mezzanine/store room adjacent to the staircase leading to the said room because of certain personal reasons and promised to vacate and hand over the peaceful and vacant possession of the same to the plaintiff very soon. But despite requests and demands Mr. R. K. Tangri did not vacated the said mezzanine room/store room and has not handed over the peaceful and vacant possession of the store room to the plaintiffs. It is submitted that at the time of selling out the ground floor portion either to defendant no. 1 or to defendant no. 2, Sh. R. K. Tangri had hand over the possession of the store to the plaintiffs, however the plaintiffs have not put their lock on the aforesaid room. The defendants no. 1 and 2 by taking undue advantage put their own lock.
3 It is submitted that about 2 years back, the defendant no. 1 and 2 had raised unauthorized construction on the kitchen and the kitchen shifted to open space generally called as shaft/open space which has been used to affixation of waste pipes. The defendants Suit no. 677/09 Page 2 of 7 no. 1 and 2 have also removed the sewerage affixed/installed in the open space/shaft and have affixed that sewer 6 ft. away from the original position due to which entire sewer system has been disturbed. It is submitted that the defendants no. 1 and 2 converted the original kitchen into a dinning room. It is submitted that the defendants no. 1 and 2 have also raised unauthorized construction on the back side portion of the property. It is submitted that no resident of locality has any right to cover the open space. The plaintiffs further submitted that defendants no. 1 and 2 not only change the original position of kitchen and has constructed the kitchen unauthorized and covered the same with three feet jaali. One toilet and bath room has also been constructed illegally by the defendants no. 1 and 2. It is submitted that the shaft is common to the residents of the ground floor, first floor and the second floor as there is a sever existing in the aforesaid shaft. There is one window has been provided to the residents of every floor leading to the shaft. It is submitted that defendants no. 1 and 2 asked the plaintiffs to sell the first floor portion but every time the plaintiffs had flatly refused to sell his first floor portion to them. It is submitted that due to which the defendants started to harass the plaintiffs.
Suit no. 677/09 Page 3 of 7 4 The plaintiffs further alleged that due to covering of open space/shaft with iron jaal and fiber sheet and due to the locking of the same, by the defendants no. 1 and 2 from inside the plaintiffs are not in a position to enter into the shaft. The plaintiffs further alleged that the sewerage system got blocked. Even the defendant no. 1 deliberately and intentionally blocked the sewerage line on 08.04.08. A police complaint was also made to this effect. The defendants again blocked the sewerage on 27.01.09 with malafide intention. The plaintiffs are facing great hardship due to blockage of sewerage line. Hence, the plaintiff the plaintiff is seeking adinterim relief against the defendants.
5 Summons of the suit and notice of the application U/O.39 R.1 & 2 r/w Sec.151 CPC were issued to the defendants and defendant no. 1 no. 2 have filed his reply. The defendants no. 1 and 2 replied in their WS that plaintiff has no right or title or interest in the mezzanine floor. The defendants no. 1 and 3 alleged that there was seepage from the premises of the plaintiffs to the premises of defendants but despite request the plaintiffs have not got repaired the seepage. The defendants no. 1 and 2 further replied in the WS Suit no. 677/09 Page 4 of 7 that whatever construction has been done by them against which they have filed an application with MCD for regularization. The defendants no. 1 and 2 have stated in their WS that they have not changed the shaft area. The defendants no. 1 and 2 further denied that shaft is commons to the residents of ground floor, first floor and second floor. It is further stated by the defendants no. 1 and 2 that the window installed at ground, first and second floor is for the purpose of ventilation and not for entering each other's house through shaft or for coming down or going out into other's house. Defendants no. 1 and 2 have denied that they have blocked the sewerage line as arranged by the plaintiffs.
6 Defendant MCD has not filed any WS, however MCD has filed status report stating therein that the ground floor is regularized under the self assessment policy of the corporation. But it is also stated in the status report by the MCD that the owner of the ground floor has concealed the fact for getting regularized the sanctioned plan and MCD will take appropriate action for cancellation of regularization Suit no. 677/09 Page 5 of 7 7 I have heard the Ld. Counsel for parties and gave my thoughtful consideration to the submissions made by the parties. 8 It is admitted facts on record that the sewerage line of first floor and second floor are installed in the shaft. Which are merged in the main sewerage line at the ground floor. The plaintiffs have seriously alleged that several times, their sewerage line got blocked. During the course of arguments it is admitted that shaft is common. No one can be stopped to get clear his sewerage line. Every person has right to utilize his property up to the maximum utility. So, I am of the considered view that plaintiffs have prima faice case in their favour. Balance of convenience in also in favour of plaintiffs. They will suffer irreparable loss if sewerage line from their property leading to the main sewerage line is blocked. Because they will not utilize their property up to minimum utility standard. The defendants no. 1 and 2 are directed to facilitate the cleaning of the sewerage whenever it is blocked and further directed not locked the jaali affixed over the shaft specifically shown in site plan at the property bearing no. C205, First Floor, Block C, Railway Board Employees Cooperative Housing Building Society Ltd., Anand Vihar, Suit no. 677/09 Page 6 of 7 Delhi92. This order is made till final disposal of the suit. 9 Nothing is tantamount to the expression of view on the merits of the case, as the parties still have to prove their case by leading their evidence.
(Announced in open Court (JAGDISH KUMAR)
today i.e 06.01.12) JSCC/ASCJ/GJ(East)
KKD COURTS/ DELHI
Suit no. 677/09 Page 7 of 7
Suit No.677/09
06.01.12
Present: Counsel for plaintiff.
Proxy counsel for defendants no. 1 and 2 with son of defendants.
Counsel for MCD.
Arguments heard on applications of plaintiff U/Sec.151 CPC as well as application of the defendants no. 1 and 2 U/Sec.151 CPC. Arguments also heard on behalf of behalf of parties on application U/O. 39 R1 & 2 CPC.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS06.01.12
At 4.00 p.m.
Present: Plaintiff in person.
None for defendants.
Vide separate order the application of plaintiff U/O.39 R.1 & 2 R/W Sec.151 CPC is allowed. The defendants no. 1 and 2 are directed to facilitate the cleaning of the sewerage whenever blocked and further directed not locked the jaali affixed over the shaft Suit no. 677/09 Page 8 of 7 specifically shown in site plan at the property bearing no. C205, First Floor, Block C, Railway Board Employees Cooperative Housing Building Society Ltd., Anand Vihar, Delhi92. This order is made till final disposal of the suit.
Applications of plaintiffs and defendants no. 1 and 2 U/Sec. 151 CPC are dismissed vide separate order.
Put up on 08.02.12 for framing of issues.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/06.01.12 Suit no. 677/09 Page 9 of 7 IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ KARKARDOOMA COURTS: DELHI Suit No. 677/09 Jai Parkash Gupta & Ors. Vs. N. S. Dang & Ors.
ORDER 1 This order shall dispose of an application U/Sec.151 CPC moved by defendants no. 1 and 2. By present application defendants no. 1 and 2 is seeking direction against the plaintiffs thereby directing the plaintiffs to remove the malba from the roof of the bathroom and store and ensure no malba is again dumpt on the roof of the premises of the defendants. The defendants no. 1 and 2 further seeks removal of the plants from the window of the mezzanine room (which is owned and occupied by the defendants and used as a pooja room) of the defendants and also the plants kept along with the all of mezzanine room. The applicants/defendants no. 1 and 2 further seeks direction that plaintiffs be restrained from stopping the defendants from installing the grills on the ground floor (at ceiling level) of the property in question.
Suit no. 677/09 Page 10 of 7
Reply to the said application has not been filed by the respondent/plaintiffs. Counsel for plaintiffs argued the application straightaway.
I have heard the Ld. Counsel for parties and give my thoughtful consideration to the submissions made by the parties.
First of all there is no counterclaim in the present suit on behalf of the applicants/defendants no. 1 and 2. The Court U/Sec.151 CPC can use the inherent power for the ends of justice and to prevent abuse process of law. The dispute in the present suit between the plaintiffs and defendants no. 1 and 2 whether the plaintiff is entitled for possession of one store room situated on the first floor and forming part of the first floor of the suit property. The another dispute between the parties are that the defendant no. 1 and 2 may be directed to restore the original position of the entire ground floor as per the sanctioned site plan approved by the MCD. The third dispute between the parties is whether the jaali installed by the defendants no. 1 and 2 at the shaft/open space is removable. The present application has been moved in the form of application U/O.39 R.1 & 2 CPC but there is no counter claim on the part of the defendant in the present suit. The Suit no. 677/09 Page 11 of 7 order is also not required to be passed on this application as same is not relevant for the proper adjudicate of the dispute involved in the present suit. It seems that the application has been moved only to complicate the suit and to delay the proceedings. I am not inclined to use the discretionary power U/Sec.151 CPC, as, same is not required to be used, as the order will not helpful to adjudicate the dispute involved between the parties. I am of the considered view that the application of the applicants deserves dismissal. Same is dismissed.
(Announced in open Court (JAGDISH KUMAR)
today i.e 06.01.12) JSCC/ASCJ/GJ(East)
KKD COURTS/ DELHI
Suit no. 677/09 Page 12 of 7
IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ KARKARDOOMA COURTS: DELHI Suit No. 677/09 Jai Parkash Gupta & Ors. Vs. N. S. Dang & Ors.
ORDER This order shall dispose of the application of the plaintiff U/Sec.151 CPC. Vide this application plaintiff is seeking the direction from the Court thereby directing the defendants no. 1 and 2 to remove the jaali and to affix the same either on the roof level of the first floor or on the top of both the shafts.
The dispute in the present suit between the plaintiffs and defendants no. 1 and 2 whether the plaintiff is entitled for possession of one store room situated on the first floor and forming part of the first floor of the suit property. The another dispute between the parties are that the defendant no. 1 and 2 may be directed to restore the original position of the entire ground floor as per the sanctioned site plan approved by the MCD. The third dispute between the parties is whether the jaali installed by the defendants no. 1 and 2 at the Suit no. 677/09 Page 13 of 7 shaft/open space is removable.
Reply to the said application has not been filed by the defendants. Counsel for defendants argued the application straightaway.
I have heard the Ld. Counsel for parties and give my thoughtful consideration to the submissions made by the parties.
The relief sought by the plaintiffs is beyond pleadings and it is established law that no relief can be granted beyond pleadings. It seems that the application has been moved only to delay the proceedings. I am of the considered view that the application of the plaintiffs deserves dismissal. Same is dismissed.
(Announced in open Court (JAGDISH KUMAR)
today i.e 06.01.12) JSCC/ASCJ/GJ(East)
KKD COURTS/ DELHI
Suit no. 677/09 Page 14 of 7
Suit no. 677/09 Page 15 of 7