Amarjeet Singh Sachdeva vs Ashok Monga
2014 Latest Caselaw 6394 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          Reserved on: 25.02.2014
                                                      Date of Decision: 03.12.2014

+              CM (M) No.1360 of 2012 & CM No.20876 of 2012

AMARJEET SINGH SACHDEVA                        ...... Petitioner
             Through: Mr. Rajat Aneja & Mr. Ishaan Chhaya, Advs.

                                       versus

ASHOK MONGA                                                    ..... Respondent
                         Through:   Mr. S.K. Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

1. By this petition filed under Article 227 of the Constitution of India,

the petitioner impugns an order dated 5.11.2012 passed in an appeal,

which resultantly set aside the order dated 1.8.2012 passed by the

learned Civil Judge.

2. The case of the petitioner is that the respondent/plaintiff had filed a

civil suit seeking reliefs of mandatory and permanent injunction as

well as compensation/damages of Rs.1.85 lacs from the

petitioner/defendant. The respondent/plaintiff is the exclusive and

absolute owner of the third floor of property bearing No.C-10/8B,

Krishna Nagar, Delhi-110051 on the basis of a Sale Deed dated

29.6.2011, executed in his favour by the petitioner. The

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respondent/plaintiff had contended that he was illegally deprived of

the use and facility of the lift installed in the aforesaid property and

had sought a direction against the present petitioner (defendant) to

allow the plaintiff and his family members to use the lift without any

hindrance or obstacle. In his written statement (WS), the

petitioner/defendant had stated that the suit was not maintainable

since the Sale Deed conveying the third floor flat to the

plaintiff/respondent did not include the use and facility of the lift

installed in the building. It was also contended that the plaintiff was

yet to pay an amount of Rs.1,84,982/-, which had been attempted to

be paid by the plaintiff through a post dated cheque of Rs.2.00 lacs as

the balance sale consideration but upon presentation of the cheque,

the same got dishonoured on account of insufficiency of funds in the

account of the respondent. It was stated that the petitioner had

initiated proceedings under Section 138 of the Negotiable

Instruments Act, 1881 much prior to the filing of the suit and the said

proceedings are pending before the Metropolitan Magistrate,

Karkardooma Courts, Delhi.

3. Regarding the plaintiff's application for interim relief under Order

XXXIX, Rules 1 & 2 of the CPC in which relief nos. 2 and 3 were

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not pressed, the Trial Court was of the view that in the Sale Deed,

there was no mention of the lift or of it being classified as a common

facility, therefore it would be a matter of trial as to whether the

plaintiff had paid the cost of lift along with sale consideration to the

petitioner (defendant). On appeal against the said order, the

Appellate Court set aside the order of the Trial Court and directed the

petitioner/defendant by way of a mandatory injunction to provide use

and occupation of the lift in the suit premises. The Trial Court had

held as under:

"It is clear from above mentioned para that there is no mentioning of lift for common use for the plaintiff in the building. Further, it is a matter of trial whether plaintiff paid the cost of the life along with the sale consideration of the flat to the defendant or not. Further it is also admitted by the plaintiff in his plaint that the other occupants of flats in the same building are also facing same problem as defendant is also not permitting them to use lift. In view of above discussion, it is clear that lift is installed by the defendant for his own benefit and not for the occupants/residents of the flats in the building as neither plaintiff nor the other residents of building are using the lift."

4. The Appellate Court was of the view that common area was provided

to the plaintiff and it was so mentioned in the Sale Deed under

Clause 8 thereof, which reads as under:

"That the common area such as passage, entrance, stairs, one car parking and one scooter, right to install/repair water tank on roof of top floor and all common facilities/amenities attached to the said property shall be used and properly maintained in common

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by all occupants of the aforesaid property and shall not be mis- used by any of the occupants of the building/property, together with undivided proportionate share in the land."

5. The Appellate Court reasoned that:

"all common amenities/facilities were to be used jointly.

Amenity means something that contributes to the physical and material comfort. It is a feature that increase attractiveness or value, especially of a piece of real estate or geographic location. Amenity denotes something that increases physical ease or facilitates work. Prima facie, it appears that the facility of lift is a common facility/amenity attached to the property and is required to be used and maintained commonly by all the occupants of the said property. Ld. Trial court has observed that it is a matter of trial whether plaintiff paid cost of the lift alongwith sale consideration of the flat to the defendant or not. Even if it is to be decided during the trial as to whether plaintiff paid cost of the lift to the defendant or not, the facility of the lift cannot be withheld during the trial. The plaintiff and his family would also suffer irreparable loss and injury if the facility of lift is denied to them during the trial. It is a matter of common knowledge that lift is used more and is more advantageous to the persons occupying the upper floors than the occupants of the ground or first floor. If the facility of lift was not to be provided to the person on the upper floor, then there was no purpose of installing the lift in the property. Though there is no specific mention regarding lift in para. 8 of the sale deed but after reading para. 8 where there is mention of common area such as passage, entrance, stairs, one car parking and one scooter, right to install/repair water tank on the roof of top floor it appears that lift is not a separate amenity but is a common facility/amenity in the property. Also the lift is passing through all the floors and the door of lift is installed on all the floor. If the lift was not to be used by the person occupying the third floor then there is no purpose of having door of the lift at the third floor. To

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that extent, I do not agree with the observations of the ld. trial court and therefore, the appeal of the plaintiff is liable to be accepted."

6. The learned counsel for the petitioner submits that the third floor of

the suit property was sold by the petitioner/defendant to the

respondent whereby he became the exclusive and absolute owner of

the third floor without roof rights and the use of the lift, unlike the

second floor and upper ground floor was excluded from the sale

transaction. He submits that as per the Sale Deed, there was no

agreement or consensus ad idem with respect to the lift being a

common facility. He submits that the lift was a special facility

provided for the users of the building but a value would be attached

for the right to use the same and insofar as the value had neither been

mentioned nor paid nor the right to use the said facility been

conveyed to the plaintiff/purchaser, the latter would have no right to

use it. Access to the third floor flat was provided through the

staircase; that the petitioner/defendant had exclusive right on the

terrace over the third floor and he had developed a terrace-garden

thereon, to which he had exclusive access. He submits that the seller

did not specifically mention the facility of lift which had already

been constructed and installed at the time of purchase of the property.

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He further submits that there was no need of incorporating various

other expressions in the said clause of the agreement such as

common entrance, passage, staircase, one car and scooter parking,

etc. in case the lift was also part of the common facilities attached to

the property. He submits that the conspicuous omission of the word

"lift" makes it amply clear that the lift was not included as a common

facility; therefore, the omission of the word "lift" from the Sale Deed

was deliberate and specific. He submits that two other sale deeds

filed by the plaintiff himself would show that the word "lift" had

been specifically mentioned in them; therefore, it would clearly

signify that the petitioner/seller had never intended to nor agreed to

transfer any such right to in favour of plaintiff. The learned counsel

for the petitioner contends that the interim relief must not lead to

grant of final relief and the parties must be given full opportunity to

prove their case in trial on the disputed questions of fact and relies on

Richa Industries Ltd. & Ors. v. ICICI Bank Limited & Anr. 190

(2012) DLT 500). He also relies upon a Division Bench judgment of

the Allahabad High Court in Kan Constructions and Colonizers Pvt.

Ltd. v. Allan Deo Noronha & Anr. 2006 LawSuit (All) 1994, which

held that "while granting the ex parte mandatory injunction under

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Rule 3 of Order 39 CPC any reason has been recorded by the court

below to the effect that object of granting injunction would be

defeated by delay. The Court was required to record and mentioned

specific circumstances due to which it was necessary to grant

mandatory interim injunction. The proviso to Order 39 Rule 3 is

mandatory in nature and its non-compliance is fatal." The Court

referred to the decision of the Supreme Court in Metro Marins &

Anr. v. Bonus Watch Co. (P) Ltd. 2004 7 SCC 478, which followed

the decision in Dorab's1 case that an interim mandatory injunction

can be granted only in exceptional cases coming within the exception

laid down in the decision. The High Court held that "while deciding

the issue of injunction the Courts have to consider the cumulative

factor i.e., prima facie case, balance of convenience and irreparable

loss but on an interlocutory application for grant of an interim

mandatory injunction, the Court has to record a definite finding on a

prima facie case of a higher standard or specific circumstance for

grant of interim mandatory injunction". The Court referred to the

decision of the Supreme Court in Dorab Cawasji Warden v. Coomi

Sorab Warden & Ors., 1990 1 SCR 332, which held that:

Dorab Cawasji Warden v. Coomi Sorab Warden & Ors., 1990 1 SCR 332 _______________________________________________________________________

"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. But since the granting or non-granting of such an injunction may cause great injustice or irreparable harm to one of the parties, the Courts have evolved certain guidelines. Generally stated, the 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."

7. The learned counsel for the petitioner also relied upon the decision of

this Court in Denel (Proprietary Limited) South Africa v. Lord

Gordon Siynn & Ors., 2010 IX AD (Delhi) 645, which held that

where relief was sought in the nature of final relief, it could not have

been granted at the interim stage particularly in cases where there

were disputed questions of fact, which required leading of evidence

by the parties. The Court went on to hold in the circumstances of

that case that when an application for interim measures had been

dismissed, there could be no justification for the petitioner to seek

more or less the same relief by way of an interim award even without

leading any evidence in the matter.

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8. In response, the learned counsel for the respondent submits that the

petitioner/defendant's stand is self-contradictory since on one hand,

he contends in his WS that there was no agreement between the

parties regarding the facility of lift to the plaintiff or any other

occupant of the suit premises because the said lift was installed by

the petitioner/defendant for his benefit and for his aged father, who

had been suffering from various ailments; however, in the same

breath, the petitioner/defendant goes on to state that the purchasers of

second and upper ground floors in the same building would be

entitled to use the facility of lift. The learned counsel contends that

exceptional circumstance for grant of mandatory injunction at the

interim stage, was clearly made out in favour of the plaintiff since the

plaintiff's mother had already died in August, 2012 and his father

who is aged about 80 years had been suffering from senility as well

as various other ailments for which he had been admitted to a

hospital for treatment. Therefore, the requirement of the lift already

installed in the building was acute, for the plaintiff, his father as well

as his other family members and relatives. He submits that the lift

was installed after the building plan was sanctioned by the Municipal

Authorities. He therefore submits, that the provision of lift is clearly

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a facility for all the floors in the building and the plaintiff could not

be deprived from using same. It is submitted that the other two sale

deeds show that the lift was identified as a common lift for the use of

the purchasers of those floors. He relies upon a judgment of this

Court in Veena Kohli v. Rawal Apartments Pvt. Ltd. 71 (1998) DLT

489, which held that toilet is an essential amenity for ladies,

therefore, the plaintiff therein could not be deprived of the use of this

facility. Accordingly, a temporary mandatory injunction had been

granted to prevent irreparable loss. He also relies upon a Division

Bench judgment of this Court in DDA v. Nehru Place Hotels Ltd. &

Ors. 1993 (25) DRJ (DB) 286 and Mrs. Vijay Srivastava v. M/s.

Mirahul Enterprises & Ors. AIR 1988 Delhi 140, which held that

where interim relief is the same as the final relief, it can be granted in

appropriate cases to meet the ends of justice.

9. Considering the submission of the parties, this Court is of the view

that the provision of a lift in any building is an added facility for ease

of access to the upper floors in it. Access is normally provided by a

staircase and depending upon the type of the construction, the lift

may well become a primary mode of access to the upper floors and

the staircase could be relegated to a fire escape. However, the

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installation of a lift comes at a cost which would need to be billed

into the price of the sale of any property which is serviced/reached by

the lift. If the lift is mentioned as common area, it shall be so treated.

If it is not, then it shall be treated as a separate facility for the use of

which there may well be a cost. In the present case, the right to use

the lift has not been conveyed to the purchaser/respondent. Clearly,

the express omission of "lift" from the common facilities listed in the

sale deed is conspicuous whereas with respect to other two sale deeds

filed by the plaintiff/respondent, the said expression finds mention as

a "common facility" i.e., common lift. The latter would confer a

sharing right upon that purchaser and others to whom such right was

conveyed to the extent that the facility of the lift was common to

them. Insofar as this common facility was not specifically extended

to the present respondent/plaintiff, the use of the same or conveyance

of any right in it cannot be inferred from the other sale

documents/deeds. The personal circumstances of the

plaintiff/respondent and his family, including the old age of his father

would not make it a legally compelling case or create a special

circumstance for the grant of mandatory interim injunction, which

effectively was the final relief sought in the suit. No matter how

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compelling the circumstance may be, it cannot confer a legal right

upon a purchaser unless the said right was so agreed to be conveyed

by the seller. In the absence of any material to show prima facie such

transfer of rights to vendor, the right of the vendee deserves to be

safeguarded. A seller's right in an immovable property cannot be

deemed to be transferred by inference. Under the Transfer of

Property Act, it requires a specific conveyance. The Trial Court had

rightly held that it was a matter of trial as to whether the

plaintiff/respondent had paid the cost of lift along with the sale

consideration to the petitioner/defendant or not. If the lift was

included in the carpet area of the property purchased by the

respondent/plaintiff, he may well have had a case to pray for interim

injunction but the impugned order is not based upon any such

averment.

10. It is not the case of the plaintiff/respondent that he was using the lift

and such facility was abruptly taken away by the

petitioner/defendant. The permission to or actual use of the lift by

the plaintiff had not been established, therefore, according to Dorab's

(supra) principle, there was no status quo to be preserved or to be

restored to the last non-contested status preceding the pending

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controversy. Indeed the Trial Court referred to the plaintiff's legal

notice to the defendant which stressed the urgent need for use of

facility of the lift; thereby admitting that the plaintiff was not in use

of the lift. The use of the lift was not a status to be preserved or

restored. In the present case, it is yet to be established as to whether

the plaintiff/purchaser had any right in the lift or whether the plaintiff

had purchased the common right for the use of the lift. Therefore, to

grant a mandatory injunction at this stage would be without any

basis.

11. In view of the aforesaid, this Court is of the view that the impugned

order directing the petitioner/defendant to provide use and occupation

of the lift to the respondent/plaintiff, his family members and

associates during the pendency of the suit, suffers from material

irregularity. In the circumstances, the impugned order is liable to be

set aside and the order of the Trial Court dated 1.8.2012 in the

application under Order XXXIX, Rules 1 & 2 of the CPC be restored.

The impugned order dated 5.11.2012 is accordingly set aside.

12. This petition is allowed. There shall be no order as to costs.

DECEMBER 03, 2014                                       NAJMI WAZIRI, J.
b'nesh

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