Delhi High Court

Motor Industries Company Ltd vs Seth Associates Pvt Ltd & Ors on 16 January, 2012

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 16.01.2012

+     CM(M) 1332/2009

      MOTOR INDUSTRIES COMPANY LTD       ..... Petitioner
                  Through  Mr. Sandeep Sethi, Sr.
                           Advocate with Mr. Kalyan
                           Vadlamani, Adv.

                      versus

      SETH ASSOCIATES PVT LTD & ORS        ..... Respondents
                   Through   Mr. Ravinder Sethi, Sr.
                             Advocate with Mr. P.R.
                             Rajhans and Mr. Puneet
                             Sharma, Adv.

+     CM(M) 1333/2009


      MOTOR INDUSTRIES COMPANY LTD       ..... Petitioner
                  Through  Mr. Sandeep Sethi, Sr.
                           Advocate with Mr. Kalyan
                           Vadlamani, Adv.

                      versus

      SETH ASSOCIATES PVT LTD & ORS        ..... Respondents
                    Through  Mr. Ravinder Sethi, Sr.
                             Advocate with Mr. P.R.
                             Rajhans and Mr. Puneet
                             Sharma, Adv.
+     CM(M) 1334/2009

      MOTOR INDUSTRIES COMPANY LTD       ..... Petitioner
                  Through  Mr. Sandeep Sethi, Sr.
                           Advocate with Mr. Kalyan
                           Vadlamani, Adv.

                      versus

      SETH ASSOCIATES PVT LTD & ORS              ..... Respondents
CM(M) No. 1332/2009                                Page 1 of 6
                          Through     Mr. Ravinder Sethi, Sr.
                                     Advocate with Mr. P.R.
                                     Rajhans and Mr. Puneet
                                     Sharma, Adv.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

13.10.2009 vide which three applications filed by the plaintiff and

one application filed by the defendant had been disposed of. The

petitioner before this court is the plaintiff in the Trial Court. He is

aggrieved by the rejection of his three applications under Order

14 Rule 5 of the Code of Civil Procedure (hereinafter referred to

as „the Code‟), a second application under Order 11 Rules 12 & 14

of the Code and a third application under Order 11 Rule 1 of the

Code seeking discovery of interrogatories.

2. Record shows that the present suit is a suit for mandatory

and permanent injunction filed by the plaintiff Motor Industries

Company Ltd. against Seth Associates P. Ltd.; there are five

defendants. The suit property is a property at the Rishyamook

Commercial Complex 85/A. Punchkuin Road, New Delhi-110001.

The parties had entered into an agreement dated 30.07.1986 by

virtue of which the defendant/builder had agreed to construct the

property of the plaintiff and the parties were thereafter to share

the building; upper basement, second floor and third floor has

fallen to the share of the plaintiff and the lower basement and the

ground floor had fallen to the share to the defendant. The

agreement dated 30.07.1986 was followed by another document

executed between the parties on 30.04.1988 by virtue of which

the plaintiff had confirmed to the defendant that part of the

possession of the suit property which had fallen to his share has

been taken over by him. There were admittedly certain spaces

which were common to both the plaintiff and the defendant.

3. This court shall first deal with that part of the impugned

order which had rejected the application of the plaintiff under

Order 14 Rule 5 of the Code. Record shows that the issues had

been framed on 26.07.2004; the application seeking an

amendment of the issues had been filed in 2009; evidence of the

plaintiff was in progress on that stage. Learned counsel for the

petitioner has drawn attention of the court to the averments made

in para 3 of the plaint when it has been specifically averred that

the plaintiff has the right over the common areas which include

the foyer of the building on the ground floor of disputed property;

contention is that this plea has not been incorporated in the issues

which had been framed on 26.07.2004 and accordingly an

amendment has been prayed for. Further contention is that there

is no specific denial in the corresponding para of the written

statement and this amendment is thus necessitated. This

contention is vehemently opposed; learned counsel for the

respondent submits that there is unexplainable delay in filing this

application; even otherwise the powers of superintendence under

Article 227 of the Constitution of India which are vested with this

court are for correction of a jurisdictional error and unless and

until there is manifest error or injustice which has occurred to the

other party; no interference is called for. To support this

submission he has placed reliance upon the judgments of the Apex

Court reported in (2002) 1 SCC 319 titled as Ouseph Mathai and

Ors. vs. M. Abdul Khadir and (2003) 3 SCC 524 titled as Sadhana

Lodh and National Insurance Co. Ltd. & Anr. .

4. The pleadings have been perused as also the admitted

agreement between the parties dated 30.07.1986 as also the

confirmation of possession letter dated 30.04.1988. The issues

framed on 26.07.2004 have also been perused. Para 3 of the

plaint categorically sates that the right of the plaintiff has accrued

to him over the common areas including the common area on

foyer the ground floor which is in terms of part B of the

Agreement dated 30.07.1986. Part B of the said agreement has

been perused; it has to be read in conformity with the subsequent

possession letter dated 30.04.1988. In view thereof, the

amendment in issue No. 3 is necessitated. It shall accordingly

read as hereinunder:-

"Issue No.3. Whether there is a hindrance/obstruction to the plaintiff regarding the use of common pathways, passages, staircases, lifts and the like in terms of part B of the Agreement dated 30.07.1986 which has to be read inconformity with the subsequent letter dated 30.04.1988? OPP"

5. No other argument has been urged qua this application.

Impugned order on the application under Order 14 Rule 5 of the

Code is modified to the above extent.

6. The petitioner is also aggrieved by the orders passed on his

application under Order 11 Rule 12 & 14 of the Code; his

contention is that he had moved an application seeking

impleadment of the MCD which had been declined. His contention

is that the plan of the disputed premises sanctioned by the NDMC

has not been placed on record. Learned counsel for the

respondent submits that a true copy of the same has been placed

on record; a perusal of this document shows that it is not a

certified copy; in handwriting it has been written therein that this