Sushila Agarwal vs Parshotam Sarup Aggarwal And Anr
2015 Latest Caselaw 3292 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of Decision: April 23, 2015
+     CS(OS) No. 1290/2011
      SUSHILA AGARWAL                                  ..... Plaintiff
                  Through             Mr.Jayant K.Mehta and Mr.Saurabh
                                      Dev Karan Singh, Advocates

                         versus

      PARSHOTAM SARUP AGGARWAL AND ANR ..... Defendant
                   Through  Ms.Tamali Wad and Mr.Vaibhav
                            Sharma, Advocates for D-1 & D-4
                            Mr.D.P.Mohanty, Mr.Sumit Goel and
                            Mr.Ritesh Isaac, Advocates for D-2
                            Mr.Sudhir Nandrajog, Sr. Advocate
                            with Mr.P.K.Rawal, Mr.Ajay Bahl
                            and Mr.Tarun Agarwal, Advocates
                            for D-3A and 3B
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH


JAYANT NATH, J.(Oral)
IA NO. 19978/2014
1.

This is an application filed by the plaintiff under Section 151 CPC for directions to the defendants to allow the plaintiff to place her generators either in the rear service lane behind flats No. M-36-38, ground floor of the property or on the terrace above the second floor of the flats. The plaintiff and the defendants are the descendants of late Sh. Ram Sarup Aggarwal. The suit relates to Plot No. 12, Block M, Connaught Circus, New Delhi and seeks a decree of permanent injunction in favour of the plaintiff to restrain

the defendants from preventing, obstructing, hindering or interfering in the peaceful use and enjoyment of the plaintiff of the service lane indicated in the site plan and the terrace above the second floor of the suit property for any common purpose or user. The plaintiff is said to be the owner and in possession of Flat No. M-85, Connaught Circus, New Delhi which is located on the first floor and from where the plaintiff is stated to be running a hotel. It is stated that in order to provide constant supply of electricity to the hotel, the plaintiff has to necessarily deploy a generator to meet the eventualities of power cut. It is further stated that the generator was originally placed in the rear service lane of the ground floor of the property but was displaced from there. The plaintiff was constrained to take on rent a place on the terrace of the adjoining property in order to place the generator.

2. Learned counsel for the plaintiff has strenuously urged that the plaintiff is in an emergent situation as the owner of the terrace where the plaintiff has deployed her generator on lease/license is threatening to the plaintiff to remove the generator as there are cracks developing in the roof and the owner does not want the plaintiff to continue running the generator thereon. Reliance is also placed on order dated 21.03.2013when this court framed issues and had noted that in case the other counsel are found to be delaying the hearing, the plaintiff would be entitled to seek a direction again without moving any application regarding placement of the generator on the rear open space on the ground floor or on the terrace above the second floor. Reliance is also placed by the learned counsel on a communication received under the RTI Act from the L&DO Office dated 31.01.2013 which states that the unconstructed/open to sky land is a set back of the building meant for services or parking and is for use/occupation of all the lessees of

the plot. It is stated that the plaintiff is one of the lessees and hence in terms of the said communication, is entitled to use of the terrace.

3. Learned counsel appearing for the defendants have strongly opposed the present application. It is urged that these submissions and contentions of the plaintiff are misplaced and have been already fully agitated and dealt with by this court in its order dated 14.02.2014 where this court had declined permission to the plaintiff to install her generator as sought and have taken an undertaking from the defendants to compensate the plaintiff for the rentals being paid by the plaintiff to the owner of the adjoining property for installing generator.

4. In my opinion, the present application is nothing but a repetition of the submissions already made before the court and dealt with by the court on 14.02.2014. This court on that date regarding the plea of the plaintiff to permit installation of the generator had held as follows:-

"18. Though only the arguments are to be heard in the suits, but just like for the last nearly one year the same has not happened, the possibility of the same being delayed further cannot be ruled out. I am of the view that not permitting the P.S.Agarwal Group to install its generator in the said space, which may result in P.S.Agarwal Group not being able to fetch proper rent for its property No.M-36 which admittedly is lying vacant, will cause irreparable loss and injury to the P.S.Agarwal Group and which cannot be compensated. The counsel for M.S. Agarwal Group states that it has had to install its generator on the terrace of a adjoining building at a rent of Rs.20,000/- per month and the landlord is pressing for removal of the generator. He contends that both M.S. Agarwal and P.S. Agarwal Groups be allowed to install their generators in the said space. Though it has been informed that there is open space behind property no. M-37 and 38 and to which also the M.S. Agarwal Group is staking claim and where also M.S.

Agarwal Group, which was in the order dated 21st March, 2013 denied permission to install its generator, can install its generator but V.S. Agarwal Group out of V.S. Agarwal and B.S. Agarwal Groups who otherwise claim stake to the said space is not agreeable though the counsel for B.S. Agarwal Group is agreeable to allow M.S. Agarwal Group as a interim measure to install their generator therein.

19. The senior counsel for the P.S.Agarwal Group, under instructions has undertaken:-

(i) that in the event of it being held that M.S.Agarwal Group also has a right in the said rear open space behind M-36, the P.S.Agarwal and his son shall within one month of the said decision and subject to further orders in appeal pay to the M.S.Agarwal Group an amount calculated at the rate of Rs.10,000/- per month w.e.f. August, 2010 (since when the M.S. Agarwal Group is paying rent) till the time the generator of the M.S.Agarwal Group remains installed on the terrace of the adjoining building and for which the M.S.Agarwal Group is paying a rent of Rs.20,000/- per month.

(ii) that in the event of M.S.Agarwal Group also being held entitled to share in the said space, the P.S.Agarwal Group shall immediately as aforesaid allow M.S.Agarwal Group to install their generator and will not take the plea of the same being not possible owing to their own generator being installed therein; and,

(iii) that they will not take any adjournments for final hearing in the suit and fully co-operate in expeditious disposal thereof.

20. Mr. P.K. Rawal Advocate for the V.S. Agarwal Group also gives a similar undertaking to compensate the M.S. Agarwal with the remaining Rs.10,000/- p.m. and on the other two aspects aforesaid.

21. I am of the view that the offer aforesaid backed by undertakings of the P.S. Agarwal and V.S. Agarwal Groups is fair and reasonable, particularly when there will be no way to compensate the P.S.Agarwal and V.S. Agarwal Groups, if so restrained from using the said rear open spaces, in the event of the P.S. Agarwal Group being ultimately held exclusive owner of space behind M-36 and V.S. Agarwal and B.S. Agarwal Groups being ultimately held exclusive owners of space behind M-37and38.

22. The application is thus partly allowed by clarifying that notwithstanding the earlier interim orders and on the aforesaid undertakings, the P.S. Agarwal Group will be entitled to install generator in the space behind M-36 and the V.S. Agarwal Group and B.S. Agarwal Groups entitled to restrain the M.S.Agarwal Group from installing generator in the space behind M-37 and 38.

Hence, M.S. Agarwal Group (i.e. plaintiff) were not permitted to install the generator, as sought here.

5. The issue is: Can the plaintiff now be permitted to re-agitate the contentions regarding installation of the generator when vide order dated 14.02.2014 the contentions of the plaintiff have already been dealt with?

6. The Supreme Court in the case of Arjun Singh vs. Mohindra Kumar & Ors., AIR 1964 SC 993 in para 13 held as follows:-

"13. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications

for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of court.

.......... But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of res judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle or res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issues, whereas in the other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the court."

7. Reference may also be had to the judgment of the Supreme Court in the case of Ajay Mohan and Ors. vs. H.N. Rai and Ors., 2008 (2) SCC 507.

8. Hence it is not open to the plaintiff to now re-agitate her contentions

which have already been made and dealt with by this court on 14.02.2014. The only exception to this rule would be if there are some developments which have taken place after 14.02.2014 which would warrant a re-look at the said order.

9. The only additional ground which appears to have been taken in the present application is a communication dated 05.09.2014 said to have been written by one Sanjeev Gupta, the owner of the space where the generator of the plaintiff is running. The said communication states that the generator kept on the roof is creating a lot of nuisance and hence the generator may be shifted as soon as possible else the author states that the matter would have to be taken up legally.

10. This communication dated 05.09.2014 does not inspire any confidence. We are in April 2015 and it does not appear as if the author of the letter has initiated any legal proceedings against the plaintiff. Even otherwise, this court on 14.02.2014 had noted the said submission of the plaintiff that the landlord of the terrace of the adjoining building where the generator is installed is pressing for removal of the generator. Hence, it would follow that the alleged demand of the landlord for removal of the generator which has been noted by this court in its order dated 14.02.2014 is the only ground for having moved the application again. This is not a new ground to justify a relook at the order of this court dated 14.02.2014.

11. The only other ground taken in the application is about the alleged delay on account of final disposal of the matter. It is urged that as per order of this court dated 21.03.2013, the matter is ripe for final disposal as the parties have agreed that the issues do not require leading of any evidence. It is urged that there is untold delay on account of one party or the other party

moving one application or the other. Hence, it is urged that this court may have re-look at the order dated 14.02.2014.

12. The submission regarding delay in disposal of the suit cannot per se be a ground to re-agitate the entire matter all over again which has been dealt with by this court in detail on 14.02.2014. There is no merit in the present application and the same is dismissed.

IA No. 4933/2014

13. This is an application on behalf of defendants No. 3A and 3B under Order 6 Rule 17 CPC seeking amendment of the written statement.

14. By the present application, the said defendants seek various amendments/additions in the written statement which essentially seeks to introduce a plea of titled based on adverse possession regarding the roof above the second floor being Flat No. M-126 and 128.

15. Learned senior counsel for the applicants has submitted that the plea of adverse possession was implicit in the written statement filed by the applicants though words "adverse possession" had not been actually used. He submits that by the present amendment the applicants seek to merely add specifically that they claim title to the roof by adverse possession also.

16. Learned counsel for the plaintiff and other defendants have opposed the present application. It is urged that amendment application is utterly belated. The matter is now at the stage of final agruments when the applicants have woken up to attempt to amend the written statement. It is further added that this application is nothing but a counter blast and an attempt to undo the order of this court dated 14.02.2014 whereby this court had noted that the plea taken in the written statement is only of exclusive user and possession of the terrace for 30 years. This court noted various

judgments of the Supreme Court to hold that exclusive user and possession for howsoever long in time, in law does not create ownership and that no ingredients of plea of adverse possession have been pleaded. Hence it is urged that to overreach this order, the present application is filed. It is next urged that the said plea now taken by the applicants would change the complete nature of the suit. It is lastly urged that it is an attempt to undo the order of this court dated 21.03.2013 where the parties had agreed not to lead evidence and for disposal of the suit.

17. In rejoinder, learned senior counsel for the applicants has categorically stated that in case this court were to allow amendments, the applicants would not seek permission to lead any evidence in this regard and would be quite willing to abide by the order of this court dated 21.03.2013 and to have the matter disposed of without any evidence.

18. To look at accepted principles of amendments, reference may be had to the judgment of the Supreme Court in the case of 'Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors.' (supra). The Hon'ble Supreme Court in para 67 held as follows:-

"67. On critically analyzing both the English and Indian cases, some basic principles emerges which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

19. In my opinion, keeping in view the above principles, there is no merit in the present application.

20. Firstly, the matter is now ripe for final arguments. The parties had agreed that none of the parties would lead evidence and this court on 21.03.2013 after framing issues had kept the matter for final arguments.

21. Order 6 Rule 17 CPC states that the court may at any stage of the proceedings allow either party to alter or amend his pleadings provided no application of amendment shall be allowed after the trial has commenced, unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the Trial. Hence, the Civil Procedure Code discourages belated and late amendments in the pleadings. Though parties have not gone to trial in the present case, they have agreed to forego the trial and with the consent of the parties, the matter has been placed for final arguments. This position has been so since 21.03.2013. Now, after matter has been fixed for final arguments to move the present application, in my opinion is highly belated. Further no sufficient cause is shown to allow the present application. No particular reasons are shown to explain this delay. The amendments which are sought to be carried out are of the nature which could have been taken when the initial written statement was filed. There is no due diligence on the part of the applicants.

22. I may also note that the present application appears to be a consequence of the order of this court dated 14.02.2014. By the said order this court had disposed of IA No. 15904/2013 moved by defendants No. 3A and 3B (applicants herein) for modification of order dated 21.03.2013 seeking an opportunity to lead evidence. This court noted that there is no plea in the written statement of defendants No.3A and 3B (applicants) from which it can be said that other than the partition deed, they have otherwise become owner of the terrace. This court further noted that as per the written statement, the said applicants have only exclusive user and possession of the terrace for 30 years and that as per the legal position settled by the Supreme Court such exclusive user and possession does not create ownership. This court further noted that no ingredients of a plea of adverse possession have been pleaded. In case the applicants have pursuant to the partition deed become owners of the terrace, the same can be decided on the basis of the issues framed. On this reasoning, the application of defendants No.3A and 3B was dismissed. The present plea now sought to be added by way of an amendment is only an attempt to undo the said order dated 14.02.2014 and to add a specific plea of adverse possession. The application lacks bona fide.

23. There is also no merit in the submission of the learned senior counsel for the applicants that the plea of adverse possession is implicit in the written statement filed by the applicants. Firstly, this contention has already been rejected by the court in order dated 14.02.2014. Secondly, even after an independent examination of the written statement of the applicants, especially para 4 of the preliminary objections which has been relied upon by the learned senior counsel, it is clear that no such plea of adverse possession has been raised or can be implied in the written statement. The

entire premise in the written statement is that the applicants are the owner of the second floor property M.-126 and 128 and that the roof is a part of the second floor and has been under lock and key of the owners of the second floor for the last 30 years. Adding the plea of adverse possession would tentamount to adding a completely new plea.

24. Even otherwise in my opinion the stand of the applicants of mere adding the words 'adverse possession' and trying to claim ownership based on adverse possession without pleading the essential ingredients of adverse possession or leading evidence as is sought to be argued is a misplaced contention. What are the ingredients of Adverse Possession. In V. Muthiah Pillai (Died) and Ors. Vs. Vedambal and Ors., AIR 1986 Madras 106 the Division Bench of the Madras High Court clarified the meaning of adverse possession as follows:-

"15. ... We will first state briefly the law relating to adverse possession: - The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor.

...

The classical requirement of adverse possession are that the possession must be nec vi nec clam nec precario, that is to say, the possession required must be adequate in continuity, in publicity and in extent. It is sufficient that the possession be

overt and without any attempt at concealment so that the person against whom time is running out, if he exercises due vigilance~ to be aware of what is happening In Secretary of State v. Debendralal Khan MANU/PR/0072/1933 their Lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. More exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. Permissive possession does not become hostile till there is an assertion of an adverse possession to the knowledge of the owner. (Sheodhari Rai v.Suraj Prasad Singh MANU/SC/0058/1950 : AIR1954SC758 ). The permissive character of the possession can be inferred from the attending circumstances even without direct evidence. If possession is found to be permissive at the inception the possessor cannot prescribe or sustain title or any claim adversely to the grantor of the possession (Ouseph Ouseph v. Mathen Mariamma, AIR 1954 T C 297 : 1954 KLT 8.

25. Similarly in Saroop Singh Vs. Banto and Ors., AIR 2005 SC 4407, the Supreme Court relied upon the earlier judgment of the Supreme Court in the case of Karnataka Board of Wakf vs. Government of India 2004 (10) SCC 779 and noted the relevant portion as follows:-

"29. Yet again in Karnataka Board of Wakf v. Government of India and Ors. MANU/SC/0377/2004 : (2004)10SCC779 , it was observed :

"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he

came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

26. Hence, merely pleading 'adverse possession' per se would not help the applicant in any manner. Further the plea of adverse possession is a mixed question of law and fact. In the absence of any evidence being led by defendants No. 3A & 3B/applicants, the plea of adverse possession would be completely futile and does not on the face of it help the applicants cause. The plea is a futile exercise. The amendment sought is merely a misconceived response to the order of this court dated 14.02.2014. It is also not necessary for proper and effective adjudication of the disputes between the parties. The amendments which are now sought are also not bona fide. Accordingly, there is no merit in the present application and the same is dismissed.

CS(OS) No. 1290/2011 List before the Joint Registrar on 10.08.2015 for further proceedings.

JAYANT NATH, J.

APRIL 23, 2015 rb