Swarn Kanta Punj vs Surabhi Gehlot & Ors.
2013 Latest Caselaw 2823 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    I.A. No. 5932/2013
                           in
                   CS(OS) No.3559/2012
+                                Date of Decision: 8th July, 2013


#     SWARN KANTA PUNJ                     ..... Plaintiff
!                 Through:Mr. Sanjeev Sindhwani, Sr.Adv.
                         with Mr. R.K. Saini, Advocate

                                versus

$     SURABHI GEHLOT & ORS.              ..... Defendants
                 Through: Mr. Vikas Singh, Sr. Advocate
                          with Mr. Sumit Gahlawat, Mr.
                          T.S. Thakraon, Ms. Patience
                          Panmei & Mr. Nikhil Bhalla,
                          Advocates

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

                           ORDER

P.K.BHASIN, J:

The defendants have filed this application for rejection of plaint in this suit for permanent injunction filed by the plaintiff for restraining the defendants from creating any obstructions in her ingress and egress to the portion(Annexe) of property no. 12, Kasturba Gandhi Marg, New Delhi which she claims to be

occupying as a tenant and which portion includes some open space outside her residential Unit which she claims to have been using for parking her car.

2. The defendants, out of whom defendant no.2 is stated to be the daughter-in-law of a big builder/developer, are alleged to have purchased the above property in the end of 2012 from its erstwhile owners and as per the plaintiff's case they intend to demolish the entire property to build a commercial complex or a palatial residential house for themselves which they cannot do till the time the plaintiff is in occupation of a part of the property. The plaintiff, who is an old lady of about seventy six years, has alleged in the plaint that in order to evict her illegally from the tenanted premises which had been in occupation of the plaintiff's predecessors for more than fifty years and for many years with her also, the defendants have put up a gate at the main entrance to her tenanted portion so that she is not in a position to take her car inside upto the open space outside the tenanted premises where it used to be parked before the purchase of the property by the defendants. Feeling aggrieved the plaintiff filed the present suit for permanent injunction and sought the following relief in the plaint:-

"(a). A decree for permanent injunction restraining the Defendants, their employees, agents, representatives and associates, from interfering with or obstructing in any manner, the ingress and egress of the plaintiff, her family members, relatives and friends, to the demised premises by car (or otherwise) and parking it infront of/near the entrance of the demised premises in open space and plaintiff's use

and enjoyment of the demised premises thereof (as detailed in the site plan attached ANNEXURE-I)"

3. The defendants in their written statement have denied that the plaintiff is a tenant as is being claimed by her or that she had any right to park her car inside the compound of the main bungalow and further that even if the plaintiff and her predecessors have been parking car inside the compound without any objection from the erstwhile owners that would not create any legal right in her favour and at the most that user can be said to be a permissive one and that permission can always be revoked and so this suit for injunction is not maintainable. Rejection of the plaint under Order VII Rule 11 C.P.C. was also sought for in the written statement.

4. Alongwith the plaint an application under Order XXXIX Rules 1 & 2 C.P.C. was also filed by the plaintiff for an ad interim injunction restraining the defendants from stopping the plaintiff in taking her car inside the main building and parking it at the open space which according to her is also a part of the premises under her tenancy.

5. When that injunction application was taken up for hearing and part arguments had been heard by the Court the defendants came out with the present application under Order VII Rule 11 C.P.C. and then arguments were advanced from both sides on this application and the hearing on the ad interim injunction application

remained inconclusive.

6. Mr. Vikas Singh, learned senior counsel for the defendants, submitted that the plaint is liable to be rejected since in the entire plaint it has not been pleaded that the erstwhile owners of the property in occupation of the plaintiff had permitted her to park her car outside her portion or that it was a term of her tenancy, though the defendants were disputing the claim of being a tenant, that she could bring her car and park it inside the property and, in fact, her clear case is that car is being parked inside the main bungalow without any objection from the erstwhile owners for more than fifty years and in that way she had acquired an absolute easementary right in that regard. Mr. Singh submitted that as a tenant the plaintiff cannot, in law, acquire any such easementary right by prescription and so the plaint disclose no cause of action in favour of the plaintiff. In support of this submission learned senior counsel cited one judgment of the Supreme Court in the case of "Madan Gopal Bhatnagar vs Smt. Jogya Devi & ors.", 1980(Supp.) Supreme Court Cases 777" and one Division Bench decision of this Court in " Shri Akesh Kumar Jain & anr. vs V Harmeet Singh Bakshi & anr.", 2001 (59) DRJ 734.

7. This application has been opposed by the plaintiff. Mr. Sanjiv Sindhwani, learned senior counsel for the plaintiff submitted that whether or not the plaintiff would be able to

succeed finally for the reason being pressed into service by the defendants cannot be considered while dealing with an application under Order VII Rule 11 C.P.C. Mr. Sindhwani also submitted that a simple suit for permanent injunction at the instance of someone who is facing a threat of dispossession from the premises in dispute from the landlord in any manner, like in the present suit the defendants have started doing things which shall lead to a situation when the plaintiff shall have no alternative but to vacate the premises under tenancy, is not barred under any law and, therefore, the plaint is not liable to be rejected. It was also submitted that there need not always be a written lease between a landlord and tenant and even if there is no written document of lease placed on record by the plaintiff she can still prove it during evidence when the trial begins that the terms of lease included the right to park the car also at the open space outside her tenanted premises which also formed part of the tenanted premises. Mr.Sindhwani also relied upon Section 108(d) of the Transfer of Property Act and a judgment of the Supreme Court in "Chapsibhai Dhanjibhai Dand vs Purshottam", AIR 1971 Supreme Court 1878 in which scope and applicability of Section 108 and Section 12 of the Easements Act was considered.

8. In order to appreciate the rival submissions the relevant averments made in the plaint, which only are to be read and taken as correct for the purpose of disposal of an application under VII

Rule 11 C.P.C., are being re-produced below:-

"10.That however, recently i.e. 13.12.2012 the owners of the property sold the same to one Mrs. Surabhi Gehlot W/o Sh. Aman Gehlot, (defendant No.1 herein) and Ms. Shahista Sindhu D/o Capt. Rudra Singh Sindhu (defendant No.2 herein) .........

11.That soon thereafter, all the defendants with a view to force the plaintiff to vacate the demised premises, started harassing the plaintiff and creating problems in her access, use and enjoyment thereof, by intimidation and otherwise....

12.That on 14.12.2012 the plaintiff to her surprise noted that the defendants had put up an iron gate at the opening of the passage, leading to the demised premises and which is the only entry point for access to the demised premises and the open space in front thereof, and have put guards and goons there and did not open the gate and did not allow the plaintiff to enter the passage and go to her house in the car..........on being informed that the plaintiff was a lawful and old tenant of the demised premises, stated that she could have ingress and egress to the demised premises on foot and the gate installed at the passage shall be opened for that purpose but neither she, her relatives or visitors shall be allowed to access the demised premises with car nor the car would be allowed to be parked near the entry door of the house nor the open space outside the demised premises, which and where the plaintiff and her family members have been doing so since the beginning of the tenancy in 1948.

13.That since then the plaintiff is not being allowed ingress and egress to the demised property, by car...........................

14............It is also clear that the defendants are violating and interfering in the easementary rights of the plaintiff vis- a-vis the tenancy of the demised premises............ The plaintiff even otherwise has been using the open passage for the ingress and egress of her car (firstly purchased in the year 1961) and the open space outside the entrance to her house, for parking of her car, for the last more than 50 years, without any let or hindrance from the

owner/landlord......As such it has even otherwise culminated into an absolute right in favour of the plaintiff in view of the provisions of Section 15 of the Indian Easement Act.........."

9. From these averments made in the plaint it cannot be said that the plaint discloses no cause of action or that the suit is barred on the aforesaid averments under any law. It was rightly submitted by the learned senior counsel for the plaintiff that the question whether the plaintiff has been parking her car outside the premises in her occupation as a matter of right and under the terms of lease between her predecessors-in-interest and the erstwhile owners/landlords or not, shall be decided after trial during which both sides shall be given opportunity to lead evidence in support of their respective stands. A bare reading of the plaint does not show that the plaintiff is claiming a decree of injunction simply on the ground that she has acquired easementary right of parking her car outside the premises under her occupation as a tenant. That is an alternative plea and whether or not she would succeed on that plea is also a matter to be decided after trial.

10. This application appears to have been filed only to avoid the hearing of plaintiff's application under Order XXXIX Rules 1 and 2 C.P.C. and being devoid of any merit is hereby dismissed with costs of Rs.10,000/-. It is, however, made clear that any observation made in this order was only for the purpose of disposal of this application and shall not be considered as an expression of

any opinion for the purpose of disposal of plaintiff's pending application for ad interim injunction which shall be disposed of on its own merits at the appropriate stage.

P.K. BHASIN, J JULY 8, 2013