Jagdish Kumar Kapoor & Anr. vs Anil Rohtagi & Ors.
2012 Latest Caselaw 1517 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      RSA NO. 24 OF 2008
                                   Date of Decision: 5th March, 2012


#     JAGDISH KUMAR KAPOOR & ANR.          ..... Appellants
                       Through: Mr. Arun Khosla,Advocate

                                Versus

$      ANIL ROHTAGI & ORS.                  ..... Respondents
^                      Through: Mr. Sunil Malhotra, Advocate

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                          ORDER

P.K.BHASIN, J:

This appeal under Section 100 of the Code of Civil Procedure,1908(„CPC‟ in short) filed by the appellants-defendants is directed against the judgment dated 17.10.2007 passed by the learned Additional District Judge in M.C.A. No. 4/2006 upholding the order dated 08.09.2006 passed by the learned Civil Judge in Suit No. 274/03 whereby the application under Order 12 Rule 6 CPC filed by the respondents-plaintiffs was allowed and a decree of permanent injunction was passed in their favour restraining the appellants- defendants from refusing to the respondents-plaintiffs access to the terrace over the third floor of property no. 28/27, East Patel Nagar, New Delhi(hereinafter referred to as „the terrace‟).

2. The facts leading to the filing of this second appeal may first be noted in brief. Appellants-defendants, who are father and son, are residing on the third floor of property no. 28/27, East Patel Nagar, New Delhi while the respondents-plaintiffs, out of whom respondents 2 and 3 are the sons of respondent no.1, are living on the second floor. Both the parties had purchased these floors from a builder Gursharan Singh in the year 1998. On the terrace, there are three water tanks out of which one was being used by both the parties and out of the other two tanks both the parties have been using one each exclusively. The respondents-plaintiffs admittedly had been going to the terrace for the repair/maintenance of the water tanks.

3. However, around September, 2002 the appellants-defendants started stopping the respondents-plaintiffs from going to the terrace. That led to the institution of a civil suit in August,2003, for declaration and injunction by the respondents-plaintiffs(out of whom respondents no.2 and 3 are the sons of respondent no.1). The relevant averments in the plaint are to be found in paras no.3 to 5 which are reproduced below:-

"3. As per clause 10 of the said registered sale deed dated 28.8.1998, the plaintiffs have the right to use, inter alia, the terrace of top floor of the said building for the installation of T.V. Antenna and maintenance, repair of water tank. Even otherwise, the defendants cannot raise any objection in this regard.

4. Admittedly, the water tanks belonging to the plaintiffs are installed on the terrace of the said building and water in those tanks is filled with the help of electric motor pumps. In fact, there are three water storage tanks installed on the said terrace, out of which,

one belongs to the plaintiffs, another to the defendants and the third is common to both the plaintiffs as well as the defendants.

5. Unfortunately, particularly since September, 2002, the defendants have unnecessarily been raising frivolous disputes with the plaintiffs by not allowing the plaintiffs to go up the said terrace of the Top Floor of the said building for, inter alia the maintenance/repair water tanks. Even the water tanks have not been cleaned making the said water supply unhygienic and hazardous to the health of the plaintiffs and their family members. In fact, being the defendants in order to harass the plaintiffs, slow down the flow and at times even completely stop the water supply from the plaintiffs water tanks to the plaintiffs water tanks to the plaintiffs properly from time to time. The plumbers and the sanitary and civil engineers of the plaintiffs are also not allowed to go up to the said terrace of the top floor of the said building."

4. Based on these facts pleaded in the plaint the respondents- plaintiffs had sought the following reliefs from the trial Court:-

"1. pass a decree of declaration declaring that the plaintiffs have the right to use, inter alia the terrace of top floor of the building no. 28/27, East Patel Nagar, New Delhi for the installation of TV Antenna and maintenance/repair of water tank, with the consequent relief of perpetual permanent injunction restraining the defendants by themselves and/or through their family members, and/or their servants and/or their agents from:

a) interfering in the plaintiffs said right to use the terrace on the top floor and

b) slowing down the flow of stopping the water supply from the water tanks belonging to the plaintiffs which are installed on the terrace of the said building to the plaintiffs' property and

c) illegally using the electricity supply from the plaintiffs' two electricity connections and meters bearing o. K 6407845 and K 11404521 0064 (Old K. No. 514 200 640790 Y) and

2. pass a decree of mandatory injunction directing the defendants to get repaired forthwith the floors of their portion on the 3rd floor."

5. The appellants-defendants had contested the suit by filing a written statement. Their replies to para nos. 3 to 5 of the plaint of the written statement are also being reproduced below:-

"3. Para no.3 of the plaint is correct to the extent that the plaintiffs have the alleged right to use the terrace of top floor for TV Antenna and repair of the water tanks. In this connection it is submitted that the plaintiffs have only the latitude of going to the top of the third floor only for periodical repair or maintenance of the water tank but have no right to use the roof of the top floor of the defendants' property for any other purpose nor any right has ever been vested in them.

4. Para no. 4 of the plaint is admitted to the extent that the water tanks are installed at the top floor of the third floor portion of the property of the defendants, but the roof top of the third floor portion of the defendants is the ownership of the defendants, and the plaintiffs keep on the switch on of the motor pump to over flow the water out of the tank and the said over flow has damaged the roof of the top floor of the third floor and the defendants have always been requesting the plaintiffs to switch off the electricity through whom the motor works, but the plaintiffs have miserably failed to accede the requests of the defendants. Rest of the para under reply is wrong and denied and the plaintiffs be put to strict proof of the same.

5. That the contents of para no.5 of the plaint are false, wrong and denied. In this connection it is submitted that on Ist of September, 2002, defendants went to the plaintiffs and requested them not to operate the water motor pump in such a way as it was damaging the flat of the answering defendants and requested them to get the flat of defendants repaired because it was damaged by the illegal and nefarious acts and omissions of the plaintiffs but the plaintiffs became furious and they threatened the defendants with dire consequences in case the defendants over complained to the plaintiffs about their illegal and unlawful acts and the plaintiff Anil Rohtagi immediately caught hold of the collar of the defendants and asked the plaintiff no. 2 and his henchmen who brought iron rods and they both again threatened the defendants showing the rods that they would break the head of the defendants in case the defendants tried to open their mouth against plaintiffs and they further asked the defendants to sell their flat at a throw away price to the plaintiffs as they are in need of accommodation and the house of the defendants is just very suitable to the plaintiffs because it is situated in the same premises. On hearing

this the defendants were so alarmed that they could not do anything and only went to their house because defendants were frightened by the plaintiffs to the extent for which they never imagined. It is wrong that the defendants have been unnecessarily raising frivolous disputes with plaintiffs by not allowing them to go up the terrace of the top floor for the alleged maintenance or repair of water tanks. Plaintiffs were always accommodated by defendants in making the water supply hygienic to the health of plaintiffs and their family. It is wrong that the defendants ever stopped the water supply from the water tanks of plaintiffs to plaintiffs. It is wrong that the plumbers and sanitary or civil engineers of plaintiffs were not allowed to go up the said terrace of the top floor of the said building. The allegations are false to the knowledge of the plaintiffs. "

6. In view of the above-quoted para no. 3 of the written statement an application under Order 12 rule 6 CPC came to be filed by the respondents-plaintiffs for passing a decree on the basis of admission regarding their right to use the terrace. The relevant paras from the application are also reproduced below:-

"6. It is pertinent to mention here that the defendants have categorically admitted the rights of the plaintiffs to use, inter alia, the terrace of the Top Floor of the said building No. 28/27, East Patel Nagar, New Delhi for the installation of T.V. Antenna and maintenance and repair of water tank, in para 3 of the reply on merits of their written statement, which is being reproduced hereunder for ready reference:

"Para No. 3 of the plaint is correct to the extent that the plaintiffs have the alleged right to use the terrace of top floor for TV Antenna and repair of the water tanks. In this connection it is submitted that the plaintiffs have only the latitude of going to the top of the third floor only for periodical repair of maintenance of the water tank but have no right to use the roof of the top floor of the defendants property for any other purpose nor any right has ever been vested in them."

7. The defendants have further claimed in para 5 of reply on merits of their written statement to the effect that the defendants have

never stopped the water supply from the water tanks of the plaintiffs to the plaintiffs property. Even on this claim of the defendants, the plaintiffs are entitled to a decree forthwith as prayed.

8. Even in the copy of the alleged sale deed dated 3.7.1998 favouring the defendants herein in respect of the third floor of the said building No. 28/27, East Patel Nagar, New Delhi, it has been categorically stated as under:-

"xxxxxxxxxxxxxx, the stair case, passage and sewerage connection of the above mentioned property are common and shall remain common. xxxxxxxxxxxxxxxxx. The vendor and other occupant of the other floors of the said property can install the T.V. Antenna on the terrace roof of the top floor of the said property and shall also go to the terrace roof of the top floor for the repair of water tank, etc. which had been installed on the terrace roof of the top floor of the said property. The vendees shall not raise any objection in this regard. xxxxxxxxxxxxxx."

9. Accordingly, on the defendants' own showing, the ownership possession, if any, of the third floor the said building by the defendants, if any, is clearly subject to the rights of the other occupants of the said building to common staircase, passage and sewerage connection etc. etc. and also subject to use of terrace roof the said property by the other occupants (including the plaintiffs) of the other floors of the said building for, inter alia, installation of T.V. Antenna and repair/maintenance of water tanks etc. installed in the said terrace roof of the top floor said building."

7. It appears that before the application under Order XII Rule 6 CPC could be decided the appellants-defendants also filed a separate suit for permanent and mandatory injunctions against the respondents- plaintiffs(being suit no.12/2005) with the following prayers:-

"i. decree of Permanent Injunction in favour of the plaintiff and against the defendant thereby restraining the defendants, their family members, agents, servants from entering the third floor flat in property No. 28/27, East Patel Nagar, New Delhi. ii. A decree of Mandatory Injunction be passed in favour of the plaintiff and against the defendants no. 1 to 4 thereby directing

the defendants to make their separate stair case by extending the stair case going from the ground floor till the third floor in the area exclusively marked for the staff case for which the provision is already there in the building at their own cost. iii. A decree of Mandatory Injunction be passed in favour of the plaintiff and against the defendants no. 1 to 3 thereby directing them to use the terrace above the third floor only from their own stair case to be constructed by them for limited purpose of maintaining the tank and that too not at odd hours i.e. before sunset for the purpose of security and safety. Cost with any other further relief which this Hon'ble Court may deem fit and proper under the circumstances of the case may also be passed in favour of the plaintiff."

8. That suit also came to be transferred to the same Court which was already seized of the case filed by the respondents-plaintiffs. However, instead of proceeding with the two suits together the learned Civil Judge chose to first dispose of the application under Order XII Rule 6 CPC filed by the respondents-plaintiffs in their suit and allowed the application under Order XII Rule 6 CPC vide impugned order dated 08.09.2006. The relevant portions of that order are reproduced below:-

"5. The present suit for declaration and injunction has been filed by the plaintiffs on the ground as mentioned in the present application herein above. In para no.3 of the reply on merits of the written statement the defendants have submitted: "Para no.3 of the plaint is correct to the extent that the plaintiffs have the alleged right to use the terrace of top floor for TV Antenna and repair of the water tanks. In this connection it is submitted that the plaintiffs have only the latitude of going to the top of the third floor only for periodical repair or maintenance of the water tank but have no right to use the roof of the top floor of the defendants' property for any other purpose nor any right has ever been vested in them.

6. In para no. 5 of the reply on merits, of the written statement it has been stated that the defendants have never stopped the water supply from the water tanks of the plaintiffs to the plaintiffs property.

7. Certain clauses of the sale deed also contain the provisions such as that ".........the staircase, passage and sewerage connection of the above mentioned property are common and shall remain common.....................The vendor and other occupation of the other floors of the said property can install the TV antenna on the terrace roof of the top floor of the said property and shall also go to the terrace roof of the top floor for the repair of water tank etc. which has been installed on the terrace roof of the top floor of the said property. The vendee shall not raise any objection in this regard."

8. It is well settled law that in order to succeed, in an application under order 12 Rule 6 of the Code of Civil Procedure 1908, the plaintiff has to show that there are clearcut, unambiguous and unequivocal admissions on the part of the defendant either in the pleadings or otherwise.

9. In the light of the above said discussion, I am of the opinion that the argument put forth by Ld. Counsel for the defendants that if the plaintiffs have to go to the terrace for maintenance/repair of the water tank then the flats of the defendants are encroached, is without any substance and does not hold much water. I am of the opinion that there are clear cut, unambiguous and unequivocal admissions on the part of the defendants as reproduced herein above. Accordingly, the application filed by the plaintiffs is hereby allowed and the suit if the plaintiff is hereby decreed to the extent that the plaintiffs have the right to use, inter alia, the terrace of the top floor of the building no. 28/27, East Patel Nagar, New Delhi for the installation of the TV Antenna and maintenance/repair of the water tank. The defendants are also hereby restrained by way of permanent injunction from interfering in the plaintiffs' said right to use the terrace of the top floor and the defendants are also restrained from slowing down the flow of or stopping the water supply from the water tank belonging to the plaintiffs. Decree sheet be prepared accordingly.

10. Now to come up for A/D of documents and framing of the issues so far as rest of the claims of the plaintiffs is concerned on 07.12.2006."

9. Feeling aggrieved by the impugned order of the trial Court, the appellants-defendants filed an appeal before the District Judge and the appeal on being assigned to an Additional District Judge for disposal came to be dismissed by the learned Additional District Judge vide judgment dated 17.10.2007 and the relevant observations of the learned Judge are as under:-

"4. ........... Photocopy of the sale deed executed by the builder in favour of the respondents, respondents have a right to use the terrace of top floor for installation of T.V. Antenna and maintenance/repair of the water tank only. The sale deed executed by the builder in favour of the appellant no.1 shows that staircase, passage, sewage connection of the property was common and was to remain common. It was further stated in the sale deed that appellant no.1 shall use the common staircase, passage and sewage connection. It is further mentioned in the sale deed that the vendors and other occupants of the other floor of the suit property can install T.V. Antenna on the terrace of the top floor of the said property and shall also go to the terrace roof of the top floor for the repair of the water tank etc., which had been installed on the terrace roof of the top floor of the said property and the vendee i.e.(appellant no.1) shall not raise any objection in this regard. From these clauses of the sale deed it is clear that other occupants of the building have right to go to the terrace for installation of the antenna and repair of the water tank etc. Even in the written statement, appellants have admitted that respondents were going to the roof for repair of the water tank/antenna etc. It has also been admitted that appellants have stopped the access of the respondents to the roof top on the ground that miscreants were visiting to the roof top under the garb of the repair. At the same time, it has been admitted in the written statement that the respondents have a right to visit the roof top for periodic repair of the water tank/antenna etc. In view of the above facts, I am of the opinion that learned Civil Judge has not committed any illegality and/or irregularity in passing decree which was based on unambiguous and unequivocal admissions which have also been supported by the terms and conditions of the sale deeds.

5. I do not agree with the contentions of the learned counsel for the appellants that part decree cannot be passed under Order 12 Rule 6 CPC. If plaintiff claims several reliefs and out of which defendant

admits certain reliefs, the decree can be passed to that effect. I also do not agree with the contention of the learned counsel for the appellants that disputed question of facts were involved and which could have been resolved only after full fledged trial, therefore, decree could not have been passed. Suit filed by the appellants against the respondent for construction of a separate staircase, in my view, has no bearing on the case of the plaintiff. Admittedly, there is only one staircase till now and which was being used by the respondents for limited purposes as mentioned in the sale deeds, therefore, merely because appellants have filed a separate suit, subsequently to the filing of the suit by the respondents, seeking directions against the respondents to construct a separate staircase will not affect the merits and demerits of the present case. In my view judgments relied upon by the learned counsel for the appellants titled as Baljit Kaur vs. United Insurance Company Ltd. reported in 1997 VI AD (Delhi) 937 and S.C. Jain v/s Bindeshwari reported in 67 (1997) DLT 189 are of no help to the appellants being in different facts. I also do not find any force in the contention of the learned counsel for the appellants that vide impugned decree right has been created in favour of the respondents in the roof top and which is contrary to the terms of sale deeds. Respondents have only been given right to have access to the roof top for the purpose of repair/maintenance of the water tank/antenna and for no other purpose and this does not tantamount creating any new right in favour of the respondents in the roof top."

10. The appellants-defendants then preferred the present second appeal. In the memorandum of appeal they claimed that this appeal involved the following substantial questions of law to be decided by this Court:-

(a) "whether a suit can be decreed under order 12 rule 6 CPC when there are intricate questions of law and facts involved in the case?

(b) Whether two suits filed by the appellant and one filed by the respondent relating to the same subject matter which are got transferred to the one Court because of similar reliefs and the same subject matter can be disposed of on an application under order 12 rule 6 when the order suit is fixed for evidence of same subject?

(c) Whether the Court can pass contradictory order by fixing one case for evidence having same issues and decreeing the other suit?

(d) Whether it is not the duty of the Hon'ble Court to decide two suits by common order when all the issues involved in the both the suit are substantially the same?

(e) Whether a Court could give a blanket right to a trespasser to trespass into the house of lawful owner without restricting any rights of easement if they at all exist?

(f) Whether a license granted by a party can be made a permanent lease when the same was never agreed upon?

11. From the fore-going narration, and particularly the portions extracted from the plaint in the suit filed by the respondents-plaintiff and that of the suit filed by the appellants-defendants, the undisputed position which emerges out is that the respondents-plaintiffs had filed a suit for declaration and permanent injunction claiming that they had a right to go to the terrace for repair/maintenance of the water tanks kept there but the appellants - defendants, though had earlier been allowing access to them to the terrace for some years, but from September, 2002 onwards had started creating problems for them by not permitting them to go to the terrace. It is also undisputed that the appellants - defendants had also filed a separate suit after the filing of the suit by the respondents - plaintiffs and in that suit the appellants - defendants had also claimed that though the respondents - plaintiffs herein had a right to go to the terrace for repair/maintenance of the water tanks kept there but since the builder had not made any provision for going straight to the terrace from the stairs leading from the second floor to the third floor they(appellants - defendants herein) had been, as a good gesture only towards the respondents - plaintiffs herein, permitting them to go to the terrace after entering

their(appellants - defendant‟s) flat on the third floor where they had kept a temporary iron ladder to go to the terrace but that gesture shown by the appellants - defendants herein towards the respondents

- plaintiffs did not create any right in their favour to go to the terrace after entering the flat on the third floor since that is an invasion on their privacy. The learned trial Court has also noticed in its judgment that the appellants - defendants herein were claiming that respondents

- plaintiffs herein had no right to go to the terrace after trespassing into third floor flat.

12. Learned counsel for the appellants-defendants submitted that this appeal certainly raises the aforesaid substantial questions of law pleaded in the memorandum of appeal for decision by this Court. Learned counsel for the respondents - plaintiffs, on the other hand, had contended that there is no question of law, much less a substantial one, involved in this appeal since all that the learned trial Court had done was to accept a part of the claim of the respondents - plaintiffs based on the clear admission of that claim made by the appellants - defendants in their written statement to the effect that the respondents

- plaintiffs had a right to go to the terrace.

13. The Supreme Court had summarized the principles relating to Section 100 CPC in the case of "Hero Vinoth versus Seshamal": (2006)5 Supreme Court Cases 545. These are the principles laid down in para no. 25 of the judgment:

25. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) An interference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."(emphasis supplied)

14. In my view, this appeal does involve a substantial question of law affecting the rights of the parties inasmuch as the appellants - defendants‟ case has been and it has been, understood by respondents

- plaintiffs also that way, that the respondents-plaintiffs had no right to go to the terrace after entering the appellants‟ flat on the third floor. The learned Courts below, however, have not considered this plea of the appellants - defendants and ignoring that they have partly decreed the claim of the respondents - plaintiffs under Order XII Rule 6 CPC.

15. In my view, the following substantial question of law arises in this second appeal:

"Q. Whether any decree could be passed in favour of the respondents - plaintiffs under Order XII Rule 6 CPC merely on the appellants - defendants' plea in one of the paras of their written statement that the respondents - plaintiffs had a right to go to the terrace for repairing/cleaning water tanks kept there ALSO ignoring their stand that that right of having an access to the terrace could not be exercised by the respondents - plaintiffs after entering into the flat on the third floor belonging to them (appellants-defendants )?

16. This second appeal is accordingly admitted for hearing and decision on the afore-said substantial question of law.

P.K. BHASIN,J

March 05, 2012