Mrs. Asha @ Aysha Siddiqui vs Sh. K.C. Vohra & Ors.
2013 Latest Caselaw 1436 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 22nd March, 2013

+                            CS(OS) No.3312/2011
       MRS. ASHA @ AYSHA SIDDIQUI             ..... Plaintiff
                    Through: Mr. K.R. Chawla & Mr. V.K. Malik,
                             Advs.
                                    Versus
       SH. K.C. VOHRA & ORS.                               ..... Respondents

                     Through:           None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This suit was originally filed by the plaintiff Mrs. Asha @ Aysha

Siddiqui as attorney of Sh. N.K.P. Salve and with respect to Flat No.F-34,

Tara Apartment, Alakhnanda, New Delhi. However upon the demise of Sh.

N.K.P. Salve during the pendency of the suit, the plaintiff applied for

substitution of herself in his place on the basis of a Will of Sh. N.K.P. Salve

with respect to the said flat in favour of the plaintiff and the plaintiff also

filed affidavits by way of 'No Objection' of Mrs. Arundhati Upadhayaya

and Sh. Harish Salve, Senior Advocate being the natural heirs of Sh. N.K.P.

Salve and in which affidavits it is further stated that Sh. N.K.P. Salve had

also executed Agreement to Sell with respect to the said flat in favour of the

plaintiff. Though the plaintiff was vide order dated 14.09.2012 substituted

but has not filed any amended memo of parties. However at this stage, it is

deemed appropriate to, in the title of this judgment, describe the said Mrs.

Asha @ Aysha Siddiqui as the plaintiff instead of Sh. N.K.P. Salve in whose

name the suit was originally filed.

2. It is the case of the plaintiff in the plaint that the original plaintiff Sh.

N.K.P. Salve on account of his pre-occupation had in the year 1984

appointed one Sh. Rajiv Malik as a caretaker for the aforesaid Flat No.F-34,

Tara Apartment, Alakhnanda, New Delhi and had also allowed him to stay

there as a licensee and the possession of the flat remained of Sh. N.K.P.

Salve only; however it was learnt that the defendant No.1 Sh. K.C. Vohra

had got electricity in his name with respect to the said flat and in which

respect a complaint dated 04.12.2010 was lodged and whereupon the

electricity connection in the name of the defendant no.1 was cancelled and

connection in the name of Sh. N.K.P. Salve restored; that subsequently the

defendant no.2 Sh. Karamjit Singh Lamba did not allow the plaintiff to open

the flat and of which complaint with the police was lodged on 26.04.2011.

The plaintiff thus filed the suit; (i) for mandatory injunction directing the

defendants to ensure clear and free access of the plaintiff for visiting and

using the said flat; and, (ii) for permanent injunction restraining the

defendants from causing any interference or obstructing in the peaceful use

and enjoyment and possession of the said flat.

3. Upon the summons of the suit having been issued, the Advocate for

the defendants no.2&3 Sh. Karamjit Singh Lamba & Sh. Pramod Chadda

appeared and informed on 21.02.2012 that the defendant no.1 Sh. K.C.

Vohra had left the country and that earlier Mr. K.C. Vohra was in possession

of the flat and had given a letter to the Society to take care of the flat. The

counsel for the defendants no.2&3 were directed to produce the said letter as

well as other relevant records in their possession with regard to the said flat.

However the said records were not produced and direction in this regard was

again issued on 01.03.2012 when the Secretary of the Society was also

directed to produce the record. The counsel for the plaintiff on that date also

disclosed that FIR No.280/2011 had been registered against the defendant

no.1 Mr. K.C. Vohra and during the investigation it had transpired that the

defendant no.1 had forged and fabricated the documents of transfer of the

flat. On oral request of the counsel for the plaintiff, SHO, Police Station

Chittranjan Park was impleaded as defendant no.4. On 21.03.2012, the

records of the Society were shown to this Court and the Investigating Officer

in the FIR aforesaid informed that the investigation was in progress.

4. Inspite of opportunities, the defendants no.2&3 did not file the written

statement and the plaintiff did not serve the defendant no.1. However vide

order dated 16.11.2012 the right of all the defendants including of the

defendant no.1 who had not been served, to file the written statement was

closed and the matter listed for ex parte evidence.

5. The plaintiff thereafter led ex parte evidence of four witnesses on

14.01.2013. The counsel who was earlier appearing for the defendants

no.2&3 on that date sought time for cross examination and which was

granted. Though the witnesses of the plaintiff did not appear thereafter but

the counsel for the defendants no.2&3 also did not appear to cross examine

and as such the right if any of the defendants no.2&3 to cross examine the

witnesses of the plaintiff is closed. The counsel for the plaintiff closes his ex

parte evidence and has addressed final arguments.

6. The plaintiff in her affidavit by way of examination-in-chief has

proved:

(i) Share Certificate of Sh. N.K.P. Salve of the Tara Cooperative

Group Housing Society Ltd. as Ex.P-2.

(ii) The letter of delivery of possession of the flat by the Society to

Sh. N.K.P. Salve as Ex.P-3.

(iii) Document showing assessment of the said flat for the purpose

of House Tax in the name of Sh. N.K.P. Salve as Ex.P-5 &

Ex.P-6.

(iv) The General Power of Attorney executed by Sh. N.K.P. Salve

in favour of the plaintiff with respect to the said flat as Ex.P-1.

(v) Will of Sh. N.K.P. Salve as Ex.P-13 and the Death Certificate

of Sh. N.K.P. Salve as Ex.P-14.

The plaintiff has else deposed on the same lines as the plaint, contents

whereof are noted hereinabove.

7. The plaintiff has examined Sub-Inspector Ram Singh as PW-2 who

has proved the FIR, Head Constable Naresh Kumar as PW-3 who have

proved the complaints lodged by Sh. N.K.P. Salve and the FIR, and the

official from the Group Housing Department of the DDA as PW-4 who has

proved the allotment of the flat in the name of Sh. N.K.P. Salve.

8. Needless to state, the aforesaid evidence remained unrebutted.

9. On the basis of the aforesaid evidence, the title of Sh. N.K.P. Salve to

the said flat and on the demise of Sh. N.K.P. Salve of the plaintiff as heir of

Sh. N.K.P. Salve with respect to the said flat under his Will Ex.P-13 is

proved. Though ordinarily, the plaintiff ought to have filed a suit for

possession instead of a suit for mandatory and permanent injunction but it is

the case of the plaintiff that the defendants are in control and possession of

the property through a licensee of Sh. N.K.P. Salve. The Division Bench of

this Court in Prabhu Dayal Vs. Roop Kumar MANU/DE/0954/2004 has

held that in such circumstances a suit for mandatory injunction is

maintainable.

10. The suit is therefore decreed in favour of the plaintiff and against the

defendants, directing the defendants to ensure clear and free access to the

plaintiff Mrs. Asha @ Aysha Siddiqui of Flat No.F-34, Tara Apartment,

Alakhnanda, New Delhi and restraining the defendants from obstructing

peaceful use, enjoyment and possession of the plaintiff of the said flat.

11. The plaintiff shall also be entitled to costs of the suit as per the

Schedule, from the defendants No.1 to 3 jointly and severally.

12. Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J MARCH 22, 2013 'gsr'..