Ramina Kumar Minocha vs Arun Dewanwala & Ors.
2013 Latest Caselaw 3510 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                            F.A.O. No.245/2009

                                       Decided on : 08.08.2013

RAMINA KUMAR MINOCHA                    ...... Appellant
            Through: Ms.Anita Sahani, Advocate.


                         Versus

ARUN DEWANWALA & ORS.                ...... Respondents
           Through: Mr.Rama Shankar, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J. (ORAL)

1. This is an appeal against the order dated 04.04.2009 passed by the

learned ADJ in Suit No.116 of 2009 titled Arun Dewanwala & Ors.

Vs. Mrs.Ramina Kumar Minocha & Anr., by virtue of which the

prayers of the respondents/plaintiffs under the application Order 39

Rules 1 & 2 CPC have been granted. In addition to this, the

appellant/defendant has been restrained from installing the iron

grills and gates leading to the common terrace area. It may be

pertinent to mention that the prayer in the application of the

respondents/plaintiffs under Order 39 Rules 1 & 2 CPC was that

the appellant/defendant, her legal heirs, servants, associates, agents

and family members be restrained from encroaching upon the

common portion/terrace at the second floor, putting malba and

garbage in the common portion, preventing, interfering, creating

hindrance and nuisance in the use of common facilities and

staircase, terrace at the second floor and at the top of the flat of the

appellant/defendant No.1 situated in the property bearing No.E-

492, Greater Kailash-II, New Delhi and raising any construction,

installing, erecting any fixtures and fittings in the common portion

of the property.

2. Briefly state the facts of the case are the respondents/plaintiffs are

claiming to be the owners or purchasers of various flats out of total

five flats existing on property No.E-492, Greater Kailash-II, New

Delhi. It has been alleged that in their documents of title

purported to have been executed by their vendors, they have been

given the right not only over the common portion but also the user

of common terrace on the second floor of the suit property where

water tanks and other common amenities such as TV antenna are

placed. It is alleged that the appellant/defendant had purchased a

flat no.301 on the third floor opposite the common terrace in or

around the year 2007 and thereafter she had installed iron grill and

a gate on the staircase leading to her flat for the purpose of her

security as a consequence of which ingress and egress of the

respondent/plaintiffs to the common terrace area opposite her flat,

which is one floor lower and where common water tanks and TV

antenna of the residents have been installed, has been stopped.

Since the matter could not be resolved by the parties, the

respondents/plaintiffs, who are three in number, were constrained

to file a suit for declaration, permanent and mandatory injunction

claiming themselves to be the lawful users of the common terrace

area as being common portion and also seeking mandatory

injunction for the removal of the iron grills and the gate purported

to have been put up by the appellant/defendant in the staircase of

the second floor.

3. The appellant/defendant filed her written statement and contested

the claim. She has stated that the documents of purchase of the

property of the respondent/plaintiffs showed that they had their

servant quarter in the basement and only the water tanks were kept

on the second floor. It was also alleged that one of the

respondent/plaintiffs had pitched a structure on the terrace where

he had located his servant who used to pose a security hazard to the

appellant/defendant. In addition to this, he would also bathe and

do all kinds of things which would not be approved of by any

woman.

4. On the basis of these pleadings, the suit was filed. Along with the

plaint, the respondent/plaintiffs had filed an application seeking an

ad interim relief which was similar to the main relief claimed in the

plaint except that no prayer for removal of iron grills and the gate

was made.

5. The reply to the application was filed and the learned ADJ, after

hearing the arguments, observed that the concern of the

appellant/defendant pertaining to her security was understandable,

but under the garb of security, she could not create hurdles in the

enjoyment of the common terrace on the second floor of the

building where common facilities like water tanks and TV antennas

were installed as that were common to all the residents of the

building. Accordingly, the learned ADJ observed that all three

parameters for grant of any injunction were satisfied it restrained

the appellant/defendant in terms of the prayer clause of application

under Order 39 Rules 1 & 2 CPC. In addition to this, the learned

ADJ also restrained the appellant/defendant from installing the iron

grills and the gate in the way leading to the common terrace area

6. The appellant/defendant, feeling aggrieved, has preferred the

present appeal against the impugned order.

7. I have heard the learned counsel for the appellant as well as the

learned counsel for the respondents.

8. The main grievance of the learned counsel for the appellant is with

regard to the factum of the direction passed by the learned ADJ that

the appellant/defendant was restrained from installing any iron

grills and the gate in the staircase which she contended was in

derogation to the averments made by the respondent/plaintiffs

themselves. In this regard, the attention of the court was drawn to

the prayer clause in the plaint of the respondent/plaintiffs to say

that the respondent/plaintiffs themselves were claiming mandatory

injunction for removal of the iron grills and the gate which clearly

shows that on the date when the impugned order was passed the

iron grills and the gate were in existence while as by passing a

restraint order the learned ADJ has not only ignored the pleadings

but has also given an impetus to the respondents/plaintiffs to

remove the said iron grills and the gate. It has been stated that as a

matter of fact under the garb of this interim order, the

respondents/plaintiffs have removed the gate on the staircase as a

consequence of which, the security of the appellant/defendant has

been threatened. Learned counsel has also referred to the report of

the local commissioner appointed by the trial court wherein it has

been clearly reflected that there was a gate in existence in the

staircase going to the terrace of the second floor. It was also urged

by the learned counsel for the appellant/defendant that the terrace

did not form a part of the sale transaction between the Respondent

No.3 and Ms.Usha Chadha. In this regard, she has drawn the

attention of the court to the said relevant documents.

9. So far as the respondents/plaintiffs are concerned, the learned

counsel has contended that Ms.Usha Chadha has not only

transferred her interest in one of the flats in question to Respondent

No.3 but has also given him servant quarter along with user of

open toilet on the terrace of the second floor and, therefore,

Respondent No.3 has every right to use the terrace on the second

floor as well as the open toilet.

10. I have carefully considered the submissions of the learned counsel

for the parties and have also gone through the record.

11. So far as the right of the Respondent No.3, who has derived his

right to the property from Ms.Usha Chadha, is concerned, no doubt

in her sale deed Ms.Usha Chadha has mentioned that apart from the

flat in question, she has given a servant quarter and an open toilet

on the terrace of the second floor to the said respondent/plaintiff

but merely because this is mentioned in his document would not

suffice because Ms.Usha Chadha must originally have the right to

have a servant quarter and user of open toilet on the terrace of the

second floor. The dictum which is well known and often quoted is

that nobody can pass on a title better than what he has.

12. The learned counsel for the respondents/plaintiffs has not been able

to point out to the court any document which would show that

Ms.Usha Chadha had a right to have a servant quarter and user of

open toilet on the terrace of the second floor. In such a

contingency, it was totally inappropriate on the part of the learned

counsel for the respondents/plaintiffs to contend that Respondent

No.3 has a right on the terrace of the second floor to erect or user

of a servant quarter. This does not, in my view, detract from the

user of the terrace on the second floor as a common area because

admittedly common facilities like water tanks, TV antennas etc.

have been installed over the said area to which

respondents/plaintifffs have to be given access but this access to

the said terrace is not be unhindered, unrestricted and unregulated.

The person who is living opposite the common terrace of the

second floor has every right to regulate the entry, and more so in

the instant case, when she happens to be a woman living alone with

her children.

13. It is common knowledge that security of woman is a big concern in

a city like Delhi. All and sundry try to commit crime against

women. Under these circumstances, the appellant/defendant was

well within her rights to protect herself and it was with this

intention that she seemed to have erected the iron grills and the

gate in the staircase to protect herself and provide some kind of

security. It is strange that the respondents/plaintiffs have

themselves in their suit for declaration, permanent and mandatory

injunction claimed that a direction be issued to the

appellant/defendant to remove the iron grills and gate, clearly

meaning that at the time when the suit was filed, the iron grills and

the gate were in existence at the place in question. Yet the learned

ADJ seemed to have inadvertently omitted this fact and passed a

restraint order against the appellant/defendant that she should not

erect the iron grills and the gate so as to stop the access of the

respondent/plaintiffs. The existence of the iron grills and the gate

at the place in question is also verified prima facie by the report of

the local commissioner who has stated that there was a gate in

existence and photographs in this regard have been placed on

record. Therefore, to that extent, the order which has been passed

by the learned ADJ is not sustainable and accordingly that portion

of the order which restrained the appellant/defendant from

installing the iron grills and the gate at the place in question in the

staircase is set aside and so far as the other portion of the impugned

order regarding unhindered access to the terrace floor for the

purpose of maintenance of common facilities of water tanks, TV

antennas etc. is concerned, respondents/plaintiffs will be provided

access by the appellant/defendant.

14. Needless to say that this has to be regulated and it cannot be

unregulated so as to cause hindrance in the enjoyment of flat by the

appellant/defendant or to impinge upon on her privacy or to create

a security threat to her. I have been informed that during the

pendency of the suit, and after passing of the order, the

respondents/plaintiffs have removed the iron grills and the gate,

which, of course, has been denied by the learned counsel for the

respondents/plaintiffs but the fact of the matter remains that the

iron grills and the gate is not in existence and the interim order in

this regard has been set aside. Therefore, the status quo ante must

be permitted to be restored by the appellant/defendant which

normally the respondents/plaintiffs ought to have been asked to do.

I, accordingly, in this regard, permit the appellant/defendant to

have the status quo ante restored which was in existence at the time

when the suit was filed. With this modification, the order of the

learned ADJ stands modified and the appeal stands allowed

partially.

15. A copy of the order be sent to the trial court for information.

V.K. SHALI, J.

AUGUST 08, 2013 dm