Smt.Kanta Aggarwal & Anr. vs Smt. Kalpana Aggarwal & Anr
2014 Latest Caselaw 4607 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
 C.M.(M) No.39/2012 and C.M.Nos.558/2012 (For directions), 559/2012
 (Exemption)


%                                                    18th September, 2014

SMT.KANTA AGGARWAL & ANR.                 ......Petitioners
                Through: Mr.Kaushal Yadav with Ms.Mamta
                         Rani, Advocates.

                          VERSUS

SMT. KALPANA AGGARWAL & ANR                ...... Respondents

Through: Mr.Mohit Monga, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India is filed by

the defendants in the suit (petitioner no.1 herein is the mother-in-law)

against the plaintiff in the suit/ respondent no.1 herein /daughter-in-law. The

subject suit is a suit filed by the plaintiff/respondent no.1 herein/daughter-in-

law for permanent injunction and in which the trial court had passed an order

dated 16.10.1998 whereby the plaintiff/respondent no.1 was permitted to

reside in the matrimonial house being A-1/81, Second Floor, Paschim Vihar,

New Delhi.

2. The petitioners/defendants argue that the respondent no.1 is using the

premises, instead of a residential purpose as per order dated 16.10.1998, for

a commercial purpose, and therefore the plaintiff/respondent no.1 should be

restrained from using the premises for a commercial purpose. The alleged

commercial purpose is user by the respondent no.1/plaintiff as a clinic.

Respondent no.1/plaintiff is admittedly a doctor.

3. The order dated 16.10.1998 whose violation is averred reads as

under:-

"There is no compromise between the parties and as efforts were made on the last date of hearing for settlement if possible. Matter be listed for WS/reply on behalf of defendant.

It is hereby clarified that Smt.Kalpana Aggarwal shall be at liberty to reside at her matrimonial house No.A-1/81, Second Floor, Paschim Vihar, Delhi and she may go out of the said house on her own free will and shall not be forced to go out by any of the defendants. Put up for WS/reply for 9.11.98."

4. Both the courts below have held that when a doctor uses a premises

for residential purpose, user of a part of the residential premises as a clinic is

incidental to the residential user and which is undoubtedly permitted by law

i.e as per the Master Plan of Delhi. Surely, it is an undisputed fact in Delhi

that as per the Master Plan (MPD 2021), every professional such as a

lawyer, doctor etc can use part of their residence for their professional

purpose, and therefore, when a part of the residence is used for their

profession, hence it cannot be argued that there is a misuse of the

suit/residential premises or violation of the Master Plan of Delhi. By the

order dated 16.10.1998, the court directing the user by the respondent

no.1/plaintiff of the suit premises as residence cannot mean that the suit

premises cannot be used for an incidental purpose of a clinic which is a part

of and incidental to the residential purpose as per the Master Plan of Delhi.

Therefore, once a professional doctor can use part of the premises in

accordance with law as a clinic, the order dated 16.10.1998 has rightly been

interpreted by the courts below not to mean that the respondent no.1/plaintiff

cannot even use the part of the premises for her profession as a doctor

because that was not the intent and purport of the order dated 16.10.1998

passed by the trial court. Both the courts below are hence justified in

dismissing the application filed by the petitioners/defendants preventing the

user by the respondent no.1/plaintiff of part of the premises for her use as a

clinic.

5. Powers under Article 227 of the Constitution of India are

discretionary and meant to be exercised to remedy gross injustice. No

injustice is caused by the impugned orders. In fact this petition, as also the

subject application, is a harassment tactic against the plaintiff/daughter-in-

law.

6. In view of the above, there is no merit in this petition, and the same is

therefore dismissed with costs of Rs.25,000/-. Costs shall be paid by the

petitioners to the respondent no.1 within a period of six weeks from today.

7. Nothing contained in this judgment is a reflection on merits of the

cases of the parties and which aspect shall be decided at the stage of final

arguments after trial.

VALMIKI J. MEHTA, J SEPTEMBER 18, 2014 KA