Delhi High Court
Nalini Ranjan vs Aradhana Banga & Anr on 6 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1598/2010
Date of Decision: 06.07.2012
NALINI RANJAN
...... Petitioners
Through: Mr. Mansoor Ansari and
Ms. Bijayalaxmi, Advocate
Versus
ARADHANA BANGA & ANR ...... Respondents
Through: Mr. Harshvir Pratap Sharma,
Advocate.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution of India is filed
assailing order dated 19th July 2010 of the Additional District Judge
(ADJ) whereby the appeal filed by the respondents against order dated
11.02.2010 passed by the Civil Judge was allowed and the said order
dated 11.02.2010 was set aside.
2. Premises in question i.e. B-365, Chittranjan Park, New Delhi has
five apartments viz Basement, Ground Floor, First Floor, Second Floor
and Third Floor. Petitioner, her husband and her daughter are the
owners of basement and second floor of this premises. Defendant No. 1
and her husband are the owners of the ground floor. Other portions are
in possession of other persons. The dispute is regarding common
passage at the rear set back of the building where there are four
underground water tanks for four apartments. The petitioner had filed a
suit against the respondent No. 1 and erstwhile owner - respondent No.
2 Mr P.P. Sharma with the grievance that defendant No. 1 was illegally
obstructing the use of passage at the rear set back of the premises by
putting iron gates, building illegal extension and keeping junk material
thus making it impossible for the other owners to have access to the
water tanks and the pumps. In the said suit application Under Order 39
Rule 1 & 2 CPC was allowed by the Additional Senior Civil Judge
(ASCJ) vide her order dated 11.02.2010 in the following manner.
"The defendants are hereby restrained from
creating any kind of hindrance in using the rear
side passage of ground floor of property No. 365,
Chitranjan Park meant for common use. The
defendants are further restrained from putting lock
by installing any gate or putting any waste material
on the sides of common passage as shown in
colour red in site plan."
3. The respondent No. 1 preferred an appeal against the order which
was allowed by the ADJ vide the impugned order dated 19.07.2010 who
set aside the order of the ASCJ and allowed the appeal reasoning as
under:
"The fact that the water tanks of the other
occupants are installed within their courtyard, no
doubt leaves the occupants at the appellants'
mercy. But if the respondent No. 1 is aggrieved by
the same, she should make alternate arrangements.
She cannot insist on being permitted to barge in
the appellant's property on the pretext of getting
the water tanks cleaned or that the water pumps
has absorbed air bubbles."
4. The petitioner has assailed the impugned order of ADJ in this
petition.
5. I have heard learned counsel for the parties and perused the
record.
6. Clause 13 of the Sale Deed of the premises of the respondent No.
1 reads as under:
"That the Vendee shall have access to the top
terrace for inspection/repair/maintenance of
overhead water tanks, cable T.V. connection
and small dish antenna etc. at all reasonable
times, with or without workmen. Vice versa
the other occupants of the above floors will
have the rights to access the back courtyard of
ground floor for repair of water pump and
sewage."
7. Referring to the above clause it was submitted that the petitioner
like other occupants of the apartments has the right to assess to the back
courtyard at the ground floor of the premises in question for the purpose
of repair of their water pump and sewage. This specific Clause 13 of the
Sale Deed could not be denied by the respondent No. 1 or her counsel.
The allegations against the respondent No. 1 was that they were
obstructing the use of the passage on the rear side of the building by the
other occupants of the apartments of the premises including the
petitioners by putting iron gate on the rear side of the passage and by
keeping flower pots and other junk materials so that owners of other
apartments have no access to the water tanks and water pumps.
8. It was submitted that Mr. Keshav Aggarwal, the owner of an
apartment of third floor in the premises in question also had similar
grievance against this respondent No. 1 and had filed a petition against
her, her husband and Mr. P.P. Sharma in this Court being CM(M) NO.
941/2010 which came to be disposed by this Court vide its order dated
20.10.2010. In the said case also the injunction was granted against
these respondent by the Civil Judge on similar lines. However, the
appeal filed by the respondents against the order dated 11.02.2010 of the
Trial Judge was allowed by the Court of ADJ who vacated the said
injunction. This Court vide its order dated 20.10.2010 restored the order
of the Trial Court (Judge, Small Cause Courts) and set aside the order of
the First Appellate Court of ADJ. This Court in the said case had
reasoned as under:
"Since First Appellate Court has also held that
staircase and other amenities are for common of
all occupants and the water tank of petitioner is
installed in the courtyard of the ground floor
and no doubt it leaves the occupants at the
mercy of respondent nos.1 and 2 have full
proprietary rights of the entire ground floor of
the premises. Under these circumstances,
petitioner cannot be denied access to his water
tank and water pumps situated on the ground
floor."
8. The respondent No. 1 and her counsel could not deny this fact of
previous litigation of similar kind by Keshav Aggarwal and the order
passed by this Court, as noted above. Further, it is also noted that SLP
against the order of this Court dated 20.10.2010 was dismissed by the
Supreme Court on 06.01.2011. It is also brought to the notice of this
Court that Respondent No. 1 had also given her statement in the Court
in the case filed by Keshav Aggarwal that she will not create any kind of
hindrance in the use of the common passage and she will not put any
waste material on the side of the common passage. This statement of
respondent no. 1 recorded in the Court on 20.11.2010 is not disputed.
9. In view of the above factual matrix, I do not see the respondent
No. 1 having any cause to obstruct the petitioner like other apartment
owners to obstruct their user of water pump, sewage in the rear set back
of the premises. The reasoning given by the learned ADJ, as noted
above is perverse, whereas reasoning given by the learned Civil Judge is
just and according to law. The impugned order of the ADJ is, therefore,
liable to be set aside and that of the Trial Judge to be restored with some
modification which is to the extent that the petitioner and her family
members etc. would be entitled to enter the rear common passage only
for the purpose of repair, maintenance, cleaning etc. of the water pumps
and the sewage after giving due notice to respondent No. 1.
10. With this modification, the rest of the order of learned Civil Judge
is maintained and that of learned ADJ is set aside. The petition is
disposed accordingly.
M.L. MEHTA, J.
JULY 06 , 2012
awanish
