Delhi High Court
Praveen Kumar vs Shobha Devi And Anr on 11 August, 2015
Author: Rajiv Shakdher
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 358/2013
PRAVEEN KUMAR ..... Appellant
Through: Mr. Prag Chawla, Advocate
versus
SHOBHA DEVI & ANR ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 11.08.2015
1. This appeal is directed against order dated 13.05.2013, passed by the
trial court, on an application filed by the applicant/plaintiff under Order 39
Rule 1 and 2 of the CPC.
1.1 By virtue of the said order, the trial court has confirmed the interim
order dated 03.03.2012, whereby status quo was ordered in respect of
ground floor portion of the property described as plot no.L-1/53, located in
khasra 61/5, situate in Budh Vihar, Phase-I, Delhi - 110086 (in short the
property).
1.2 By the very same order, however, the appellant/plaintiff's prayer with
regard to putting in place, a restraint, on the respondent no.1/defendant no.1
qua impediment caused in the ingress and egress of the first floor portion of
the said property, was declined. The rationale provided in the impugned
order, is that, the prayer made, was, beyond the scope of the main suit.
2. To be noted, the appellant/plaintiff's action is in the nature of a suit
for possession and permanent injunction in respect of the ground floor
portion of the said property.
3. Mr. Chawla, who appears for the appellant/plaintiff concedes that in
the written statement filed by respondent no.1/defendant no.1, a defence has
been taken that said party is in possession of not only the ground floor but
also the first floor portion of the aforementioned property.
3.1 It is, however, Mr. Chawla's contention that the relief prayed for in
the interlocutory application, to the extent it is declined, would flow from
the prayer made in the suit with regard to the ground floor portion of the
aforementioned property.
4. Mr. Chawla has drawn my attention to paragraph 4 of the plaint
wherein, the stand taken by the appellant/plaintiff is that he along with
defendant no.2 and other members of the family are residing in the first floor
of the aforementioned property. The fact that respondent no.1/defendant
no.1 was in possession of ground floor of the suit property is mentioned in
paragraph 2 of the plaint.
5. Having regard to the above, it is quite clear that the action instituted
by the appellant/plaintiff is confined only to the ground floor portion of the
aforementioned property. The suit does not concern the first floor portion of
the aforementioned property. That being said, both the appellant/plaintiff
and respondent no.1/defendant no.1 claim to be in possession of the first
floor portion of the said property. I am further informed by Mr. Chalwa that
the ingress and egress to the first floor is from the ground floor. This aspect
is not found mentioned in the impugned order.
5.1 Mr. Chawla having realised this says that for the moment he would be
quite satisfied if this court were to say that the observations made with
regard to the right to ingress and egress to the first floor portion of the said
property would not come in the way of the final determination which is to be
made in the suit.
5.2 According to me, the observations made in the impugned order can
only be construed as prima facie in nature and these cannot effect the final
determination in the suit.
6. The appeal is accordingly disposed of with a direction that the
observations made with regard to the prayer made in the application filed by
the appellant/plaintiff under Order 39 Rule 1 & 2 CPC, in respect of ingress
and egress to the first floor portion of the aforementioned property will not
impact the merits of the said case.
RAJIV SHAKDHER, J
AUGUST 11, 2015
yg
