Asha Rani Gupta vs Rajender Kumar & Ors.
2012 Latest Caselaw 5230 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on: 29.08.2012
                                      Judgment pronounced on: 03.09.2012

+      CS(OS) 288/2012

       ASHA RANI GUPTA                                        ..... Plaintiff
                    Through:          Mr.Sandeep Sethi, Sr. Advocate with
                                      Mr.Jeewash nagrath, Mr.Vijayendra
                                      Kumar and Mr.Dhruv Kapoor, Advs.

                      versus


    RAJENDER KUMAR & ORS                 ..... Defendants
                  Through: Mr.S.K.Sharma, Mr.Hari Shanker and
                            Mr.Shivshanker Panicker, Advocates
                            for Defendant No.1.
                            Mr.Arun Vohra, Advocate for
                            Defendant No. 2
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

IA No.2233/2012, IA No. 3383/2012 (O. 39 R. 1&2 CPC), and IA No.4380/2012 (O. 39 R. 4 CPC)

1. The plaintiff is the owner of property bearing No.7, Jorbagh Market, New

Delhi. The aforesaid property is a commercial-cum-residential property and has

two shops, two open spaces, a verandah and a toilet on the ground floor. One of

the two shops, which is shown in red colour in the site plan filed by the plaintiff,

was let out to the father of defendants 1 to 3, namely, late Shri Phool Chand, by

Shri Daulat Ram Gupta, father-in-law of the plaintiff at the rent of Rs 175/- per

month. After about 2½ years, backyard/open space, shown in yellow colour, was

also let out to him at the rent of Rs 85/- per month. The case of the plaintiff is that

the common verandah and common toilet, which are shown in orange colour in the

site plan, filed by the plaintiff were meant for common use of the occupants of both

the shops on the ground floor as well as the occupants of the first floor. The other

shop on the ground floor, which is shown in green colour in the site plan, was let

out to Delhi Cloth Mills (DCM), which handed over the vacant possession of the

same to the plaintiff on 30.05.2009.

2. It has been alleged in the plaint that on 30.04.2010, defendant No. 1 broke

the backside wall of the open space in his occupation and placed a heavy dry-

cleaning machine in the common verandah and also installed water treatment plant

in the open space in his occupation and a complaint dated 30.04.2010, was lodged

with the police in this regard. It has also been alleged that defendant No. 1, without

permission of the plaintiff also built a wire cage on the ground floor which has

height of about 15 feet and covers the first floor. It has also been alleged that

recently in August, 2011 when the plaintiff renovated the shop shown in green

colour in the site plan, it was discovered that defendant No. 1 had illegally closed

the door abutting in the verandah and had also closed the doors of the toilet leading

from the open space which is in possession of the plaintiff and has been shown in

purple colour in the site plan. Thereby, defendant No. 1 has locked the use of the

toilet by the other occupants of ground floor and the occupants of the first floor. IA

No. 2233/2012 was filed by the plaintiff, seeking interim relief, restraining the

defendants from creating any hindrance in peaceful enjoyment of the common

toilet and common verandah. A mandatory injunction has also been sought,

directing the defendants to remove any hindrance in the peaceful enjoyment of the

common toilet and common verandah shown in orange colour in the site plant. IA

No. 3383/2012 has been filed by the plaintiff, seeking removal of the wall, alleged

to have been built in the common area behind the door of the shop in green colour.

Vide interim order dated 06.02.2012, this Court restrained the defendants from

creating any hindrance in the physical enjoyment of the common toilet by the

plaintiff and her access to the verandah. The defendants were directed to remove

all hindrances so as to enable the plaintiff to have access and use the toilet. IA

No.4380/2012 has been filed by the defendants seeking vacation of the interim

order dated 06.02.2012.

3. The suit has been contested by defendant No. 1. It is alleged in the written

statement that after about 2 ½ years of letting out of the shop shown in red colour,

entire back portion which include verandah toilet and open space were let out to

father of defendant No. 1 at the rent of Rs 85 per month and since then this is being

used for shop of dry-cleaning with the verandah and open space is being used for

carrying out the process of dry-cleaning, ironing, etc. It is also alleged that though

the user of DCM shop was having no right to use the toilet, the defendant

occasionally permitted them to use the same by using the entrance through open

space, marked in blue (purple) colour on humanitarian grounds keeping in mind

cordial relations. It is further alleged that there is no opening from the shop shown

in green colour towards the verandah and there was a brick wall from the toilet

when verandah and open space was let out to the father of defendant No. 1 way

back in the year 1959.

4. A perusal of the petition filed by late Shri Phool Chand in February, 1991,

before Rent Controller, Delhi, under Section 27 of Delhi Rent Control Act would

show that in para 1 of the petition, he claimed to be tenant in respect of one

Dokhandi (two portions) bearing No. 7, Jorbagh Market, New Delhi, measuring 12

ft. X 14 ft. and 9ft. X 12ft. with common verandah and common lavatory. Thus,

Shri Phool Chand himself claimed in this petition that that verandah and lavatory

on the ground floor were meant for common use. A perusal of the another petition

filed by late Shri Phool Chand in September, 1991 under Section 27 of Delhi Rent

Control Act would show that same was the description of the tenancy premises

given by him in para 1 of the petition. The averments made by late Shri Phool

Chand, predecessor-in-interest of the defendants in the petition filed way back in

the year 1991, totally belies the case of defendant No.1 that the whole of the back

portion, including verandah and toilet were included in the tenancy after about 2 ½

years of the first letting in the year 1957. Had that been so, late Shri Phool Chand

would not have stated in the year 1991 that the toilet and verandah were meant for

a common use.

5. It has been alleged in the written statement of defendant No. 1 that the

above-referred pleadings were in an inadvertent error and mistake on the part of the

counsel of the father of the defendant. This, however, cannot be accepted since

there is no explanation as to how the alleged mistake came to occur not once, but

twice.

I also notice that defendant No. 1 has not been able to consistent with respect

to the use of the toilet on the ground floor by the employees of DCM. At one

place, he says that they were not using the toilet, whereas at the other place, he says

that they were permitted, on humanitarian grounds, to use the toilet, through the

entrance from the open space which is shown in purple colour in the site plan. It is

difficult to accept the contention that the employees of DCM were entering the

toilet from the rear side of the building. This is more so when this is defendant's

own case that there is a public toilet in front of the shop of the suit property.

Instead, going to the back lane, entering the building from the rear side and then

going to the toilet, the employees of DCM would have preferred to use the toilet in

front of the building. To my mind, the use of the toilet on the ground floor by the

employees of DCM supports the case of the plaintiff that it was meant for common

use of the occupants and that is why DCM employees were using the same.

6. The case of defendant No. 1 is that the brick wall in the verandah existed

since the time when the verandah and open space were let out to his father way

back in 1959. Admittedly, there is a door in the show shown in green colour in the

site plan which opened in the verandah before the wall was constructed. Had the

father-in-law of the plaintiff let out the verandah and toilet exclusively to the father

of defendant No. 1, there was no need of erecting this wall. In the ordinary course

of human conduct, walls are not erected in this manner, in the verandah of a

premises.

7. For the reasons stated hereinabove, I am of the view that the plaintiff has

been able to make out a strong prima facie case that the verandah and the toilet on

the ground floor shown in orange colour in the site plan filed by the plaintiff were

meant for common use and were never let out exclusively to the father of the

defendants.

8. The next question which comes up for consideration is as to when the wall in

the verandah was erected. As stated earlier, the case of defendant No. 1 is that the

wall was erected by the father-in-law of the plaintiff way back in the year 1959.

On the other hand, the case of the plaintiff is that though they had come to know of

closing of the door of the shop shown in green colour, which abutted in the

verandah in August, 2011, while renovating the aforesaid shop. It was only during

inspection by the Local Commissioner appointed by this Court that they came to

know of the existence of the wall. This is also the case of the defendants that the

verandah in question is being used by them for the purpose of dry-cleaning of shop

clothes since the time it was let out to his father in the year 1959. Admittedly,

there is a heavy dry-cleaning machine installed in the verandah. The case of the

plaintiff is that it was on 30.04.2010 that defendant No. 1 broke the backside wall

of the open space in his occupation and placed this heavy dry-cleaning machine in

the verandah and water treatment plant in the open space occupied by him.

Defendant No.1 has not placed on record any document such as invoice of

purchase of the aforesaid heavy dry-cleaning machine to show that the machine

was purchased prior to April, 2010. In fact, defendant No. 1 is not specific as

regards the actual date on which this heavy dry-cleaning machine was installed by

him in the verandah. The case set out by the plaintiff with respect to the date of

installation of the dry-clean machine finds corroboration from the DD No. 14-A

lodged by her with the police on 30.04.2010. Therefore, prima facie I would accept

the case of the plaintiff that the aforesaid machine was installed only in April,

2010.

9. It was contended by the learned counsel for the defendant No. 1 that the

plaintiff has not entitled to equitable relief of injunction since she did not disclose

in the plaint that a wall had been erected in the verandah and obtained an ex parte

order, without disclosing to the Court that implementation of that order would

require demolition of the wall erected in the verandah. As noted earlier, the case of

the plaintiff is that she came to know about the existence of the wall only during

the course of inspection by the Local Commissioner on 28.04.2012. The report of

the Local Commissioner which visited the property in question on 28.04.2012,

inter alia, reads as under:-

"There was a cupboard attached to one wall of the said verandah which appeared to be the back wall of the premises in occupation of the plaintiff. I asked one of the persons working there to remove the cupboard. On removing the cupboard I found that there was space for a door there which was plastered and the paint was also different from the paint on the remaining wall.

Thereafter, I visited the premises in the occupancy of the plaintiff and found that at the end of the premises, there was a door which seemed to be approximately of the same size as that of the cupboard on the portion of the defendants and at the same place.

The plaintiff had called a carpenter who broke open a part of the door from the side of the plaintiff and I noticed that the wall on the other side was not plastered from this end, showing that the wall was built from the side of the defendants. The wall did not look very old and it seemed that it was built only a couple of years back. However, I cannot state the correct age of the wall as I do not have the expertise to do so. But I can say with certainty that the wall was not very old."

10. The report of the Local Commissioner clearly shows that the wall in the

verandah having been sealed by a cupboard, could not have been visible to the

plaintiff. It was only by removing the cupboard that the Local Commissioner could

find the wall, erection of which had prevented the entry of the plaintiff to the

verandah through the door in the shop, shown in green colour in the site plan. It is

important to note that the wall was found plastered only from the side of the

verandah and had not been plastered from the side of the shop in possession of the

plaintiff. Had the wall been erected by the owner/landlord of the building, there

would have been no reason for him not to plaster it from the side of the shop shown

in green colour. The fact that the wall was found plastered only from the side of

the verandah clearly indicates that it was got erected by defendant No. 1 and that is

why it could be plastered only from one side. The other side could not have been

got plastered by him since that required access through the shop occupied by the

plaintiff. The Local Commissioner also found that the paint on the space which

had been plastered was different from the paint on the remaining wall. She also

found that the wall did not look very old and could have been built only a couple of

years back. Had the wall been such as 53 years old, as is claimed by defendant No.

1, the Local Commissioner would not have said that it did not look very old and

seemed to have been built only couple of years ago. Therefore, I am unable to

accept the contention that the plaintiff deliberately concealed the existence of the

wall erected in the verandah and, therefore, is not entitled to grant of the

discretionary relief of injunction.

11. In Dorab Cawasji Warden vs. Coomi Sorab Warden, 1990 SCC (2) 117 JT

1990 (1) 199, Supreme Court inter alia observed and held as under with respect to

grant of mandatory injunctions during pendency of the suit:-

"14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall

ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

12. Since the plaintiff has been able to make out a strong prima facie case, there

is no reason why she should continue to suffer by not allowing her to have free

access to the verandah and the toilet on the ground floor during pendency of the

suit. The defendant No.1 cannot be allowed to continue to enjoy the fruits of his

illegal act during the pendency of the suit. During the course of the arguments, I

asked the learned counsel for the defendant No. 1 as to whether his client was

ready to deposit Rs 1,00,000/- per month by way of a demand draft of FDR in the

name of Registrar General of this Court and if defendant No. 1 was agreeable to do

so, the Court may grant temporary mandatory injunction, but in the event of the

suit being ultimately decided in favour of the plaintiff, the amount so deposited by

defendant No. 1 would be paid to her. The learned counsel for the defendant No. 1,

on instructions from defendant No. 1, declined to consent to this suggestion.

13. For the reasons stated in the preceding paragraphs, defendant No. 1 is

directed to remove the wall erected in the verandah shown in orange colour in the

site plan filed by the plaintiff within four weeks. He is also restrained from

creating any hindrance or obstruction in the use of the verandah and the toilet on

the ground floor by the plaintiff and/or her family members and servants.

Defendant No. 1 shall not put any lock on either of the two doors of the toilet. The

lock, if any, put by the defendant No. 1 on the doors of the toilet would be removed

forthwith. Defendant No. 1 shall also remove the heavy dry-cleaning machine and

all other articles kept in the verandah within four weeks from today. The wooden

racks got installed in the verandah shall also be removed by defendant No. 1 within

four weeks. This is subject to the plaintiff filing an undertaking on affidavit, within

one week, stating therein that in the event of the suit being dismissed, she would

pay such amount as the Court directs, as compensation to defendant No.1 for the

loss he suffers on account of not being able to put the verandah and the toilet to his

exclusive use.

The applications stand disposed of in terms of this order.

CS(OS) 288/2012

The parties to appear before the Joint Registrar for admission/denial of

documents on 8.10.2012.

The matter be listed before the Court for framing of issues on 18.02.2013.

V.K.JAIN, J

SEPTEMBER 03, 2012/BG