Shri Devender Kumar Sharma vs Smt. Santosh & Ors.
2014 Latest Caselaw 4738 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No. 579/2012
%                                                   23rd September, 2014

SHRI DEVENDER KUMAR SHARMA                  ......Petitioner
                 Through: Mr. S.K.Bhaduri and Ms. Kirti
                          Parmar, Advocates.


                           VERSUS

SMT. SANTOSH & ORS.                                       ...... Respondents
                  Through:               Mr. S.B.Vashistha, Adv.

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

impugns the order of the first appellate court dated 1.3.2012 by which the

first appellate court has dismissed the first appeal both on the ground of non-

maintainability as also on merits. The order of the trial court is dated

11.1.2012 by which an application of the petitioner/plaintiff seeking

permission to replace two doors in the disputed shop and for obtaining an

electricity connection, was dismissed.




CMM 579/2012                                                                Page 1 of 5
 2.             Since the trial court has dismissed an application filed by the

petitioner/plaintiff under Section 151 CPC, at the request made on behalf of

the petitioner, this petition is taken as a petition challenging the order passed

by the trial court dated 11.1.2012 as first appeal did not lie from the order

dated 11.1.2012 passed by the trial court.


3.             As already stated above, the impugned order dated 11.1.2012

dismissed an application filed by the petitioner/plaintiff in which two reliefs

were sought. First relief was that the petitioner/plaintiff should be allowed

to change/replace two doors with respect to the shop in his possession and

seeking injunction with respect to which shop the subject suit was filed that

petitioner/plaintiff should not be dispossessed without due process of law,

and the second relief was that plaintiff should be allowed to install an

electricity connection. These are the two aspects to be decided in this

petition.


4.             Admittedly, the entire property, including the suit shop, is the

joint   property    of   the   plaintiff   and   the   defendants.     Whereas

petitioner/plaintiff says that he is in possession of one shop, and the

defendants are stated to be in possession of the two other shops in the same

property. There is already an order of status quo by the trial court, ie the

CMM 579/2012                                                                  Page 2 of 5
 possession of the respective parties has been ordered to be protected and

therefore the possession of the petitioner/plaintiff in the suit shop is

protected.     I may hasten to clarify that though the counsel for the

respondents/defendants admits that the petitioner/plaintiff is in possession of

the shop, however it is stated that a contempt petition has been filed because

petitioner/plaintiff was not in exclusive possession of the shop and that the

shop was in possession of both the plaintiff/petitioner and defendant

no.1/respondent no.1 herein but the petitioner/plaintiff has illegally taken

sole possession of the shop.      This aspect however is disputed by the

petitioner/plaintiff, and therefore, as regards the aspect as to whether or not

petitioner/plaintiff was in exclusive possession of the shop, I do not express

finally one way or the other and this aspect will be decided in the contempt

petition as also in the suit which is pending in the trial court, however, since

the petitioner/plaintiff presently is in possession of the suit shop, replacing

of the doors will not in any manner prejudice any of the parties to the suit.

Surely, every co-owner, petitioner/plaintiff being a co-owner, is entitled to

enjoy the portion in his possession and therefore there is no prejudice to the

respondents/defendants in case doors of the shop are allowed to be replaced.




CMM 579/2012                                                                 Page 3 of 5
 5.             Learned counsel for the respondents argued that suit is only a

suit for injunction against dispossession and therefore reliefs which are

beyond the scope of the suit cannot be granted, however I do not agree with

the counsel for the respondents because entitlement to possession includes

all aspects incidental to possession i.e of effectively protecting the

possession, including the enjoyment of the possession by changing or

replacing of doors as also installing of electricity in the suit premises and

which issues are very much within the scope of the protection of the

possession of the suit shop by the petitioner/plaintiff/co-owner.


6.             In view of the above, the impugned order dated 11.2.2012 is set

aside. Application of the petitioner/plaintiff under Section 151 CPC will be

allowed. Petitioner/plaintiff is entitled to replace the doors however he will

ensure that he will not do any other work except replacing the existing doors

with the new doors and he will ensure that no structual damage is caused to

the premises. Respondents/defendants are restrained from in any manner

interfering with the activity of the petitioner/plaintiff with respect to

replacing of the doors.      Petitioner/plaintiff is also entitled to install an

electricity connection in the suit shop, of course in accordance with law, and

for this purpose he will be entitled to approach the Local Electricity

CMM 579/2012                                                                 Page 4 of 5
 Authority/Electricity Distribution Company and which will give an

electricity connection in accordance with law.


7.             The petition is allowed and disposed of in terms of the aforesaid

observations, leaving the parties to bear their own costs.




SEPTEMBER 23, 2014                             VALMIKI J. MEHTA, J.

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