Manjit Singh And Ors. vs Alex C. Joseph
2004 Latest Caselaw 1191 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an application under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (in short `the CPC') seeks an ad-interim order in favor of the plaintiff and against the defendant. The suit has been filed by the plaintiff for eviction of the defendant from the premises.

2. The crux of the averments in the application are that in view of the parking of 8 to 9 cars inside the driveway of the premises bearing No. 7, Jor Bagh, New Delhi and locking the main gate by the defendant herein, who is the tenant in respect of the ground floor of the aforesaid premises, the plaintiff landlord is unable to enjoy or let out the rest of the property. The access to the first floor and the occupation thereof has become difficult, if not impossible and as per the Lease Deed dated 30th May, 2002(in short `the lease'), there was no provision for the parking of vehicles in the driveway. Accordingly a prayer was made to clear the driveway of cars parked by the defendant.

3. Mr. Ravi Gupta, the learned counsel, appearing for the defendant has submitted that even though the lease does not contain any provision for parking of the cars, this was not a necessary incident of the lease and in any case a letter was sent to the plaintiff on 1st October, 2002 by which the rights to park to 6o 7 vehicles were reiterated by the defendant and there was no response, leaving to a conclusion that the plaintiff/applicant had accepted the aforesaid terms indicated in the defendant's letter dated 1st October, 2002. He also says that the lease cannot be taken into account as it was not a registered lease and in fact the defendant had filed a companion suit, i.e., CS(OS) No. 1720 of 2003 entitled as Alex C. Joseph v. Manjit Singh, seeking registration of the draft Lease Deed dated 1st March, 2003(in short `the draft lease') even though the said draft lease also did not include the provision for parking of vehicles.

4. Considering the averments of the parties, I am not inclined to accept the plea of the plaintiff's counsel that the plaintiff/applicant that the defendant was devoid of any rights of parking vehicles in the driveway at this stage. A necessary incident of enjoyment of a bungalow in such a place such as Jor Bagh that cars would be parking in the driveway. Just as there was no provision for parking of the cars in lease, similarly there was no exclusion of the rights of the tenant in parking his cars in the driveway. Accordingly, even though the lease does not stipulate that cars could be parked in the driveway, it has to be read as a necessary incident of the lease that the reasonable space be provided for parking vehicles. It is settled law that the terms of the unregistered lease can be read for collateral purposes.

5. Considering the photographs of the driveway, annexed with the application, the claim of the plaintiff/applicant that the letter dated 1st October, 2002 which was not responded to gave him rights to park 6 to 7 vehicles, cannot be accepted as this was the unilateral proposal and was not accepted by the plaintiff. Furthermore the written agreement/lease dated 30th May, 2002 whose terms can certainly be relied upon for collateral purpose as already noticed above show that the defendant does not have the rights to park any two cars leave alone six cars. Taking into account the overall situation and the nature of the property in question which is situated at Jor Bagh, New Delhi, the appropriate order would be that both the plaintiff/applicant and the defendant are permitted to park two cars each in the premises in question. The main door of the premises situated at 7, Jor Bagh, New Delhi can be locked but the keys of the common lock shall be retained by each of the parties. The party, staying on the ground floor in the premises shall be entitled to parking of its 2 vehicles in the half portion of the driveway adjoining the building and the parking for 2 cars on the portion of the driveway away from the building shall be with the party, staying in first & second floor in the premises. No vehicle shall be parked within 10 ft. of the closed garage. This order shall come into effect with effect from 10th November, 2004 so as to enable the defendant to make arrangements for removal of all its cars except two.

6. The application stands disposed of accordingly.

IA.No. 5702/04(under Section 151 CPC for proponment of the hearing)

Dismissed as having become infructuous.

CS(OS) No. 1159/03

List the matter on 29th November, 2004.

Defendant to appear in Court on the next date.