Ashok Rai vs Trilok Nath
1996 Latest Caselaw 140 Del

JUDGMENT

S.K. Mahajan, J.

(1) This order will dispose of the application of the plaintiff under Order 39 Rules 1 and 2 Civil Procedure Code for grant of an injunction restraining the defendant from causing any obstruction or interfering in any manner with the peaceful enjoyment by the plaintiff of the roof of the first floor of the premises being No. S-55, Panchsheel Park, New Delhi. The facts, in short, giving rise to the present controversy between the parties are that :- M/s. kaleen International of which plaintiff is the sole proprietor is a tenant under the defendant in respect of the first floor of the premises No. S-55, Panchsheel Park, New Delhi, open balcony, servant quarter on top of the garage block and terrace at a monthly rent of Rs. 2,500.00 p.m. The premises was let out to the plaintiff with effect from 1st March, 1987 at a rent of Rs. l,900.00 p.m. and since then the rent is being increased from time to time and the last rent is stated to be Rs. 2,500.00 p.m. It is alleged that the roof of the first floor is in exclusive possession of the plaintiff. The overhead tanks are located and installed on the roof. Two T.V. antennas are also installed on the roof and the plaintiff is allegedly using the roof for drying of clothes, etc. The only access to the roof had been either through the window of the servant quarter on the second floor over the garage or through the wooden ladder from the tenanted premises of the plaintiff on the first floor. There was no other way to reach the roof. It is alleged that the defendant started putting up iron staircase from the landing of the concrete staircase at the first floor level of the servant quarter to the roof and on enquiries being made by the plaintiff, the defendant informed him that he was making the staircase only with a view to clean the overhead tanks as it caused inconvenience to him to go through the window of the servant quarter to the roof for cleaning the overhead tanks, etc. On 12th January, 1993 the defendant started fixing an iron Rolling on a portion of the ledge over the kitchen and brought an iron door at the site with the sole object of obstructing the plaintiff's access to the roof. The plaintiff, therefore, filed the present suit alleging that the defendant did not have any right to obstruct the plaintiff from having access to the roof which had been in his exclusive possession, use and enjoyment and the sole object of the defendant in fixing the iron Rolling and the door was to cause harassment to the plaintiff. It is alleged that number of suits/petitions were pending between the parties and the defendant with a view to evict the plaintiff from the tenanted premises is preventing the plaintiff from use and enjoyment of the roof with ulterior designs. The plaintiff has, therefore, sought a decree for perpetual injunction restraining the defendant from blocking or in any manner obstructing the plaintiff's access to the roof through the window/opening from the servant quarter in his tenancy and from locking the iron door so as to deny access to the roof through the iron staircase and from raising any construction over the roof of the first floor.

(2) Alongwith the suit, an application for temporary in) unction was filed for the grant of above reliefs during the pendancy of the suit. By an ex parte order of injunction passed on January 15, 1993, this Court had directed the parties to maintain status quo as on that day with respect to the suit premises. By the same order, the Court had also appointed a local Commissioner to visit the premises in question on that day itself and make his report about the existing state of affairs.

(3) The stand of the defendant in the written statement is that the roof of the first floor does not form part of the tenancy of the plaintiff and in fact the terrace mentioned in the lease deed is open space on the first floor which has been described as balcony by the plaintiff in the plaint. According to him, there is no mention of the roof of the first floor to be a part of the tenanted premises in the lease deed. It is alleged that the litigations which are pending between the parties are on account of the fact that the defendant requires the premises for his bonafide need and the plaintiff had himself agreed that he would vacate the premises before 1st March, 1987. It is also alleged that plaintiff had no right to install any antenna on the roof. He states that the plaintiff does not have any access to the roof and access to the roof is only for the defendant, who approaches the same through the staircase made on the side of the property. He states that going to the roof by any person other than the defendant would in fact amount to trespass. It is also stated that the window opening in the servant quarter is meant for ventilation and not for going to the roof of the first floor. According to the defendant, the iron staircase had been in existence since long for the exclusive use of the defendant and the plaintiff has made a wrong statement in saying that the same had been put up only recently. The grill, according to the defendant, had been put up on the wall for security reasons and the plaintiff has no right to object to the same. On these facts, the defendant states that the plaintiff is not entitled to any reliefs in the suit and in fact no cause of action has arisen for filing the suit.

(4) The local Commissioner appointed by this Court vide order dated 15th January, 1993 after inspection of the premises has filed his report. As per the report of the local Commissioner, the staircase from the side entrance have been extended to the second floor terrace of the main building with the help of a newly built iron staircase. According to the local Commissioner, the other way to reach the second floor of the main building was the window in the second floor servant quarter in possession of the plaintiff. New iron grill has been installed from the second floor terrace to the main building.

(5) The relevant clause of the lease deed showing the tenancy premises which had been let out to the plaintiff reads as under :- "THAT the Lessor hereby leases to the lessee the first floor premises alongwith the fittings and fixtures as listed in the attached sheet and installed at the first floor premises, built on Flat No. S-55, Panchsheel Park, New Delhi, consisting of two bed-rooms; attached bath rooms; drawing-cum-dining room, kitchen, store room, terrace and a separate servant quarter located on the top of the garage on the same premises."

(6) In terms of the lease deed what had been let out to the plaintiff was the first floor premises, terrace and a separate servant room located on the top of the garage in the same premises. There is a dispute about the word "TERRACE" appearing in the lease deed. While the contention of the plaintiff is that the terrace is the terrace above the first floor, according to the defendant, this terrace is the open space on the first floor itself which has been described as balcony by the plaintiff in the plaint. From a perusal of the report of the local Commissioner it appears that the defendant had put up the iron staircase only recently with a view to go from the side entrance of the first floor to the roof above the first floor. A look at the photographs, which have been filed alongwith the suit as well as photographs which have been filed alongwith the report of the local Commissioner, also shows that at the landing of the stairs of the second floor, an iron door is being installed. On the roof of the first floor, there are antennas and admittedly one of the antennas belong to the plaintiff. Some clothes were also hanging on the rope on the second floor terrace and these clothes are stated to be belonging to the plaintiff.

(7) At this stage, without sufficient evidence on record, it may not be possible for the Court to come to the conclusion as to whether terrace mentioned in the lease deed is a terrace above the first floor or is a terrace on the first floor. Nor it will be possible to conclusively hold that the terrace above the first floor is under the exclusive tenancy and possession of the plaintiff. However, on the basis of material available on record and on the basis of the report of the local Commissioner, what can be, prima fade, observed is that the defendant has installed an iron staircase recently for going through the first floor landing to the second floor and is also trying to install an iron door at the landing of the stairs at the second floor. No objections to the report of the local Commissioner have been filed and there is, therefore, no reason as to why I should not believe the report of the local Commissioner. In terms of the said report, the plaintiff has his antenna on the roof of the first floor and his clothes were also hanging on the rope for being dried on the said roof. Before the staircase had been installed from the landing of the first floor to the second floor, it is not disputed, the only way to go to the second floor was either to use the wooden ladder or to go from the window of the servant quarter on the top of the garage. In case, the defendant is allowed to install the iron door and is allowed to block the window, it will not be possible for the plaintiff to use the terrace and he will be deprived of its user. Prima fade, I feel that the plaintiff had been using the terrace and it will; therefore, not be proper to deprive him of the said user till it is finally decided as to whether the terrace forms part of the tenanted premises or not.

(8) For the aforesaid reasons, order dated 15th January, 1993 is made absolute till the disposal of suit and the defendant is further restrained from interfering with the user of the roof by the plaintiff.

(9) Any observation made in this order will not affect the merits of the case.