Major Saumitra Sarkar (Retd.) vs Ms. Shikha Chakraborty & Ors.
2016 Latest Caselaw 3669 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  CS(OS) No. 25/2016
%                                                          17th May, 2016

MAJOR SAUMITRA SARKAR (RETD.)                                    ..... Plaintiff

                          Through:       Mr. Ashish Mohan, Mr. Mohit Kumar
                                         and Mr. Chetan Wahi, Advocates.



                          versus

MS. SHIKHA CHAKRABORTY & ORS.                              ..... Defendants

                          Through:       Mr. Sunil Kumar, Sr. Adv. with Mr.
                                         Santosh Mishra and Ms. Rohini Prasad,
                                         Advocates for D-1, 2, 4 and 6.

                                         Mr. Ajay Bahl, Adv. for D-5.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?         Yes


VALMIKI J. MEHTA, J (ORAL)

I.A. No. 758/2016(u/O XXXIX Rules 1 and 2 CPC by plaintiff) & I.A. No.
3670/2016(u/O XXXIX Rule 4 CPC by D-1, 2, 4 & 6)
1.

By this order I am disposing of two applications. First is the

application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code

of Civil Procedure, 1908 (CPC) being I.A. No. 758/2016, by which plaintiff has

prayed for interim orders pendente lite that defendants should not interfere in

the construction being made by the plaintiff on the terrace floor/third floor of

the property bearing no.I/1782, Chittranjan Park, New Delhi. The second

application which is being disposed of is the I.A. No.3670/2016 filed by

defendant nos. 1, 2, 4 and 6 for vacation of the interim Order passed in favour

of the plaintiff by this Court on 25.2.2016 in I.A. No.758/2016 of the plaintiff.

2. On 18.1.2016, and 25.2.2016, this Court passed the following

orders:-

"Order dated 18.1.2016 I.A. No.759/2016 (Exemption)

1. Exemption allowed subject to all just exceptions. I.A. stands disposed of.

CS(OS) No.25/2016 & I.A. No.758/2016 (u/O 39 R 1 & 2 CPC)

2. Plaintiff claims ownership of terrace rights of the property no.1/1782, Chittranjan Park, New Delhi and which terrace exists above the second floor of the property, however, the original owner being the father of the plaintiff is said to have entered into a Collaboration Agreement on 7.11.1988 with one M/s S.S. Developers Pvt Ltd for reconstruction of the property and redistribution of the constructed portions. The Collaboration Agreement dated 7.11.1988 is, however, not filed and nor there is any reference in the plaint as to under which part of the Collaboration Agreement the erstwhile owner, being the father of the petitioner late Major Samarendra Nath Sarkar continued to be the owner of the portion/terrace above the second floor of the property.

3. Existence of a legal right, which the plaintiff claims, necessarily can only be based upon what rights were retained by late Major Samarendra Nath Sarkar under the Collaboration Agreement, and in the absence of which, the plaint in fact will lack cause of action and plaintiff will lack legal right on the basis of which plaintiff claims ownership right of the terrace above the second floor of the suit property.

4. Counsel for the plaintiff at this stage seeks time to file copy of the Collaboration Agreement dated 7.11.1988.

5. List this matter in the „supplementary list‟ on 16th February, 2016.

Order dated 25.2.2016

1. Counsel for the plaintiff urges that the entire property bearing no.I/1782, Chittranjan Park, New Delhi situated on a plot of 320 sq. yds

was owned by late Major Samarendra Nath Sarkar. Major Samarendra Nath Sarkar is said to have entered into a collaboration agreement dated 7.11.1988 with one M/s S.S.Developers Pvt. Ltd to develop and construct the entire property. This collaboration agreement was performed and different portions of the property fell to the shares of the builder and late Major Samarendra Nath Sarkar. It is argued by reference to the various title deeds filed by the defendant nos. 1 to 6, and who own different portions of the lower ground floor or ground floor or the first floor that these defendants no.1 to 6 have no rights whatsoever in the terrace of the suit property i.e the portion above the constructed second floor. It is argued that late Major Samarendra Nath Sarkar continued to be the owner of the terrace and therefore the plaintiff who is the son of late Major Samarendra Nath Sarkar has stepped into the shoes of Major Samarendra Nath Sarkar on the death of Major Samarendra Nath Sarkar and who is therefore the sole and exclusive owner of the terrace/roof rights above the second floor of the property in question. It is argued that the defendant nos. 7 and 8 have in fact given no objection in favour of the plaintiff for the plaintiff to construct on the portion above the second floor of the property and which construction the plaintiff is doing in terms of the sanctioned plan of the competent authority. It is argued that defendant nos. 1 to 6 have no legal rights whatsoever to interfere with the construction which is legally and validly made by the plaintiff.

2. In view of the arguments urged on behalf of the plaintiff and having considered the pleadings and the documents filed, it is directed that till further orders unless varied by the Court, defendant nos. 1 to 6 are restrained from in any manner interfering with the use and enjoyment including construction by the plaintiff of the portion above the second floor of the property bearing no.I/1782, Chittranjan Park, New Delhi subject to the condition that plaintiff will construct as per the sanctioned plan of the competent authority.

3. Summons in the suit and notice in the I.A be issued to the defendants on filing of process fee both in the ordinary method as well as by registered AD post, returnable before the Joint Registrar 5th May, 2016.

4. Plaintiff will comply with the provision of Order 39 Rule 3 CPC within a week.

Dasti."

3. The issue before this Court is of allowing or dismissing the

application of the plaintiff under Order XXXIX Rules 1 and 2 CPC, and the

consequence of which will be automatic disposal of the application under Order

XXXIX Rule 4 CPC filed by defendant nos. 1, 2, 4 and 6.

4. Plaintiff is the son of late Major Samarendra Nath Sarkar. Late

Major Samarendra Nath Sarkar owned the entire property bearing no.I/1782,

Chittranjan Park, New Delhi. Late Major Samarendra Nath Sarkar entered into

a Collaboration Agreement dated 7.11.1988 with a builder M/s S.S. Developers

Pvt. Ltd. for construction on his property. As per the collaboration agreement

different portions after reconstruction of the entire property fell to the respective

shares of late Major Samarendra Nath Sarkar and the builder. The issue in the

present case is a limited one as to whether late Major Samarendra Nath Sarkar

ever transferred the terrace/third floor ie the portion above the second floor of

the suit property to the builder or to anybody else, and if that is found to be so,

then neither Major Samarendra Nath Sarkar nor his son, viz the plaintiff would

have any claim to the rights of construction over this terrace floor/third floor on

the suit property, but, if rights in this terrace floor/third floor were never

transferred by Major Samarendra Nath Sarkar to anybody, whether it be the

builder or the nominee of the builder, then, Major Samarendra Nath Sarkar and

therefore his son i.e the plaintiff, is and will be entitled to construct on the

terrace above the second floor viz the third floor of the suit property.

5. Plaintiff has filed various documents including the collaboration

agreement and different agreements of sale and which show that either late

Major Samarendra Nath Sarkar or the builder did ever sell the third floor/terrace

floor of the suit property to any person. It is hence urged on behalf of the

plaintiff that though different portions of the property as per different

agreements, with respect to flats constructed thereon on different floors, were

transferred to different persons including the contesting defendant nos. 1, 2, 4

and 6, however the third floor/terrace floor was never transferred by late Major

Samarendra Nath Sarkar either to the builder or to the defendant nos. 1, 2, 4 and

6 or for that matter to any other third person. Plaintiff by the present suit

therefore pleads that defendant nos. 1, 2, 4 and 6 who are objecting to

construction by the plaintiff on the third floor/terrace floor of the property, be

restrained from in any manner interfering with the construction on the terrace

floor/third floor being carried out by the plaintiff, and which construction as per

the plaintiff will be carried out as per a sanctioned plan of the concerned South

Delhi Municipal Corporation.

6. Defendant nos. 1, 2, 4 and 6 have filed the written statement as also

the subject application under Order XXXIX Rule 4 CPC. These defendants no.

1, 2, 4 and 6 prayed for vacation of the interim Order dated 25.2.2016 by

allowing of their I.A. being 3670/2016 and it is also simultaneously prayed that

I.A. No.758/2016 filed by the plaintiff under Order XXXIX Rules 1 and 2 CPC

be dismissed. Defendant nos. 1, 2, 4 and 6 through their learned senior counsel

have urged the following arguments in support of their prayer for dismissing of

the injunction application of the plaintiff:-

(i) The Agreement to Sell dated 6.3.2007 which was entered into

between late Major Samarendra Nath Sarkar through his attorney transferring a

portion of the property to these contesting defendants being the flat no.201, first

floor, front portion of the property bearing no.I/1782, Chittranjan Park, New

Delhi, it was alongwith rights simultaneously to the servant quarter and

common toilet on the terrace floor/third floor, and therefore, once the

defendants no. 1, 2, 4 and 6 have a right to the servant quarter and common

toilet on the terrace floor, therefore, they also have a right to the terrace

floor/third floor and hence plaintiff cannot claim any right to legally construct

on the terrace floor/third floor. In support of the first argument reliance is also

placed by the defendant nos. 1, 2, 4 and 6 upon Clauses 7 and 13 of their

Agreement to Sell dated 6.3.2007 and which paras will be referred to

hereinafter.

(ii) Plaintiff as per his own pleading was not in possession of the suit

property, and therefore, the present suit for perpetual injunction does not lie.

Once the suit itself does not lie, plaintiff is not entitled to any interim order and

therefore, the interim injunction application of the plaintiff be dismissed and the

interim Order dated 25.2.2016 be vacated.

(iii) When ex parte Order was granted on 25.2.2016 by this Court,

reasons were not given by the Court, and therefore, on this ground itself the ex

parte Order dated 25.2.2016 is liable to be vacated on account of the language

of Order XXXIX Rule 3 CPC.

(iv) Grant of relief in the interim application to the plaintiff will amount

to grant of decree as prayed for in the suit, and therefore, no interim order can

be passed which is in the nature of grant of the final relief. Injunction

application of the plaintiff therefore is liable to be dismissed.

7. Learned senior counsel for the defendant nos.1, 2, 4 and 6 in

support of his arguments has placed reliance upon the following judgments:-

(a) Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and

Others (1993) 3 SCC 161. This judgment is relied upon for the

proposition that courts must give reasons at the time of grant of

injunction.

(b) Roomi Prasad Vs. IIIrd Additional District Judge, Etah and

others 1998 SCC OnLine All 296: (1998) 34 ALR 366 (Single Judge

Judgment), is relied upon in support of the proposition that issue with

respect to validity of the ex parte interim order can be seen at the time of

disposal of an application under Order XXXIX Rule 4 CPC.

(c) State of U.P. and Others Vs. Desh Raj (2007) 1 SCC 257 is relied

in support of the proposition that interim order should not be granted

which amounts to giving final relief in the suit.

8. In my opinion, the defences raised by the defendant nos. 1, 2, 4 and

6 for dismissing the application under Order XXXIX Rules 1 and 2 CPC, and

for allowing of application of these defendants no. 1, 2, 4 and 6 under Order

XXXIX Rule 4 CPC are wholly misconceived and are liable to be and are

accordingly rejected. In fact, plaintiff‟s application for injunction under Order

XXXIX Rules 1 and 2 CPC has to be allowed because prima facie case, balance

of convenience and irreparable injury issues are in favour of the plaintiff.

9. The argument of learned senior counsel for the defendant nos. 1, 2,

4 and 6 is that the Agreement to Sell in favour of these defendants dated

6.3.2007 gives these defendants the ownership of the terrace, is in my opinion a

completely dishonest argument to say the least. The argument flies in the face

of categorical language of the Agreement to Sell dated 6.3.2007 whereby the

defendants no. 1, 2, 4 and 6 have only got rights to a particular flat on the first

floor alongwith one servant quarter and common toilet on the terrace. Having a

servant quarter and common toilet on the terrace cannot mean that the entire

terrace will become of these defendants and the owner of the terrace is

prevented from using or constructing upon such terrace floor/third floor if

municipal bye-laws permit construction on the third floor. I also reject the

argument urged on behalf of these defendants no. 1, 2, 4 and 6 relying upon

Clauses 7 and 13 of the Agreement to Sell dated 6.3.2007 because Clauses 7

and 13 of the agreement to sell when read, they do not give rights of the terrace

floor/third floor to the defendants no. 1, 2, 4 and 6. Clauses 7 and 13 of the

agreement to sell which are relied upon by the plaintiff (on the basis of which of

the argument defendant nos. 1, 2, 4 and 6 is rejected) read as under:-

"Clauses 7 and 13

7. That the First party has been left with no right, title or interest of any nature whatsoever in the said portion of the said property nor any heir of the First party shall be having any right, title or interest in the said portion of the said property in question and the same will become the absolute property of the Second party, with the right to transfer the same or any part thereof by way of sale, mortgage, gift, lease or otherwise, use and enjoy the income, sale proceeds etc. as his own income for which the first party shall not claim the same under any circumstances.

xxxxx xxxxx

13. That the passage, stair case, common services like Municipal water and other common services/amenities in the said property shall be commonly enjoyed by the Second party alongwith other occupants/owners and the Second party shall pay/share the maintenance expenses for the maintenance of such common services in equal proportion with other occupants/owners of the building."

10. In fact, I fail to understand as to how even Clauses 7 and 13

of the Agreement to Sell dated 6.3.2007 could at all have been referred to

by the defendant nos. 1, 2, 4 and 6 because these clauses in no manner

give any title rights or possession rights to these defendants to the terrace

floor/third floor. The argument of the defendants no. 1, 2, 4 and 6

therefore that they have the title rights in the terrace floor or have

possession rights in the terrace floor by virtue of the Agreement to Sell

dated 6.3.2007 and its clauses, being wholly misconceived, is rejected.

11. It was then argued on behalf of the defendant nos. 1, 2, 4 and

6 that plaintiff in para 13 of the plaint, as also in para 5 of reply given to

the application under Order XXXIX Rule 4 CPC of the defendants no. 1,

2, 4 and 6, have admitted that defendants are in possession of the terrace

floor, and thus the suit for injunction which admits that defendants are in

possession is liable to fail. The relevant paras of the plaint and the reply

to the injunction application which are relied upon read as under:-

"Para 13 of the plaint

13. That in terms of the documents executed above, although the subsequent Agreement holders/purchasers do not have any perfected title to the respective portion of the suit property agreed to be sold to them since no sale deed(s) have been executed in their favour, they have only an interest in the suit inasmuch as they are in possession and residing in their respective portions on the strength of agreement to sell in their favour coupled with possession of their respective portions and certain Power of attorneys which were contemporaneously executed in their favour.

Para 5 of the reply on behalf of the plaintiff

5. That the contents of paragraph 5 of the application under order XXXIX Rule 4,CPC, 1908 are denied. It is reiterated that servant quarter is provided to the Defendants on the roof of the suit property as per the said tripartite agreement, however exclusive right over and above the 2nd floor was never transferred to the Defendants vide the said tripartite agreement. The terrace/roof over and above the Second floor of the Suit property was retained by late Major Samarendra Nath Sarkar which includes all rights to build and raise any lawful construction thereon as may be permitted by the concerned authorities. The subsequent Agreement holders/purchasers neither had nor presently have any right, title or interest whatsoever in respect of the terrace above the Second floor of the suit property."

12(i) Once again the argument urged on behalf of the defendant nos.1, 2,

4 and 6 is totally frivolous because I do not find in para 5 of the reply of the

application under Order XXXIX Rule 4 CPC that plaintiff has admitted that

plaintiff is not in possession of the terrace floor/third floor. In the reply filed to

the application under Order XXXIX Rule 4 CPC by the plaintiff, it is seen that

in fact it is stated that the exclusive right to terrace floor/third floor was never

transferred to defendant nos. 1, 2, 4 and 6 and in fact the roof/terrace i.e the

third floor portion was retained by late Major Samarendra Sarkar. Similarly,

para 13 of the plaint only states that the defendant nos. 1, 2, 4 and 6 are in

possession of the respective portions, and which expression cannot be

interpreted to mean that defendant nos. 1, 2, 4 and 6 are in possession of the

terrace floor/third floor and the respective portion of the defendant nos.1, 2, 4

and 6 will only be the portion which is the subject matter of the Agreement to

Sell dated 6.3.2007 and by this agreement, no right or possession is given to the

defendant nos. 1,2,4 and 6 of the terrace except of course to the extent of

servant quarter and use of common toilet on the terrace floor/third floor.

(ii) I therefore fail to see any „admission‟ in the subject paras as is

contended on behalf of the defendant nos. 1, 2, 4 and 6 that the plaintiff admits

not to be in possession of the terrace floor/third floor/roof of the property. The

second argument of the defendant nos. 1, 2, 4 and 6 is therefore rejected.

13. The third argument urged on behalf of the defendant nos.1, 2, 4 and

6 is that at the time of disposal of the application under Order XXXIX Rule 4

CPC, this Court can look into whether reasons were given or not given at the

time of granting of ex parte injunction and since reasons were not given on

25.2.2016 hence the interim ex parte order be vacated. I have really indeed

made my best efforts to understand this argument inasmuch as once the

injunction application of the plaintiff itself is being decided and heard, how

would an issue at all arise of whether reasons were given or not given at the

time of granting of the ex parte injunction. In any case, I have already

reproduced the ex parte injunction Order passed by this Court on 25.2.2016 and

the same gives sufficient reasons for ex parte injunction to be granted, and this

order does refer to the fact that the ownership of the terrace floor continued to

be with late Major Samarendra Nath Sarkar and thereafter to the plaintiff, and

therefore, the plaintiff had rights of construction on the third floor and not being

disturbed in such actions by the actions of the defendant nos.1, 2, 4 and 6. The

third argument of the defendant nos. 1, 2, 4 and 6 is also therefore rejected.

14. The last argument urged on behalf of defendant nos. 1, 2, 4 and 6 is

that this Court should not allow interim relief which is in the nature of final

relief. Surely, it is a principle of law that the interim relief which is in the

nature of final relief can or cannot be granted depending on the facts of each

case. In certain cases, in spite of the fact that grant of interim relief amounts to

grant of final relief yet it is granted, similarly there are other cases wherein

interim relief is not granted because it is the final relief claimed. In cases such

as the present where such issue arises, courts are as per facts guided by the

aspect that property cannot be allowed to remain wasted just because the

defendants choose to deny the rights of the plaintiff in the same. This Court

cannot be oblivious of the fact that in case plaintiff is not allowed to construct

on the terrace floor, plaintiff will either loose the right to residence in the same

by constructing the third floor or lose the right to make earning from the same

by letting out etc the same. Also, it is noted in the Order dated 18.3.2016 when

the application under Order XXXIX Rule 4 CPC came up for the first time for

hearing that when the plaintiff constructs on the third floor, on construction

being made on the third floor, then, plaintiff will give similar construction to all

those persons whose servant quarters and common toilets exist presently on the

terrace above the second floor viz over/above the newly constructed terrace

floor/third floor. Counsel for the plaintiff reiterates this commitment to this

Court even today that whatever construction which exists today on the third

floor in the form of servant quarters and common toilets, such construction will

be made above the third floor and for the same area as exists today, and such

newly constructed areas will be handed over to the respective entitlement

holders of such servant quarters and common toilets. I would in this regard

seek to refer to a Division Bench judgment of this Court in the case of

Satyawati Chaudhry Vs. O.P. Nangia and Ors. 1986 RLR 518; 30 (1986) DLT

187 wherein this Court has held that a person in possession may be allowed to

construct on the property but such person will do so at his own risk and cost and

an undertaking will be given by such person that in case such person fails

finally in the suit then he undertakes to remove the construction. Counsel for

the plaintiff states that an undertaking in this regard accordingly will be filed by

the plaintiff within a period of four weeks from today. Accordingly, applying

the ratio of the judgment of the Division Bench of this Court in the case of

Satyawati Chaudhry (supra), I would permit the plaintiff to construct on the

third floor/terrace floor but construction will be at the risk and cost of the

plaintiff and subject to the final decision of the suit.

15. In view of the above, I find that plaintiff has prima facie case

because plaintiff has demonstrated to this Court that terrace floor/third floor was

never transferred by late Major Samarendra Nath Sarkar to the builder M/s S.S.

Developers Pvt. Ltd. or to anybody else including the defendant no.1, 2, 4 and

6. Once the terrace floor rights/third floor rights continued to vest with late

Major Samarendra Nath Sarkar, and thereafter to the plaintiff, plaintiff hence

cannot be forced to let the property remain waste and be not allowed to

construct on the same. Balance of convenience is in favour of the plaintiff who

will be caused grave and irreparable injury if injunction granted by the Order

dated 25.2.2016 and clarification issued on 18.3.2016 is not made absolute till

the disposal of the suit. In view of the above, I.A. No. 758/2016 of the plaintiff

is allowed by confirming the interim Order dated 25.2.2016, and I.A. No.

3670/2016 filed by defendant nos.1, 2, 4 and 6 is dismissed. In case however

the plaintiff fails to complete construction within 18 months from today, then

injunction order is liable to be vacated and for which purpose the defendant nos.

1, 2, 4 and 6 can move an appropriate application at that stage.

CS(OS) No.25/2016

16. Plaintiff will file replication within a period of four weeks to the

written statement filed by defendant nos. 1, 2, 4 and 6.

17. Parties will file documents in their power and possession within a

period of two weeks from today and admission/denial of such documents will

be done within two weeks thereafter by filing an affidavit attaching thereto an

index of documents of the other side containing an additional column of the

endorsement of admission/denial.

18. List before the Joint Registrar for marking of exhibits to the

documents on 9th August, 2016.

29. List in Court for framing of issues on 17th October, 2016.

MAY 17, 2016                                          VALMIKI J. MEHTA, J.
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