Delhi High Court
Mr. Ghulam Sarwar vs Smt. Nilofar Khan & Ors. on 5 August, 2022
$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 783/2022 & CM APPL. 34638/2022, CM APPL.
34639/2022, CM APPL. 34640/2022
GHULAM SARWAR ..... Petitioner
Through: Mr. M. Hasibuddin, Adv.
versus
SMT. NILOFAR KHAN & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 05.08.2022
1. This petition, under Article 227 of the Constitution of India,
challenges order dated 27th July 2022, passed by the learned
Additional District Judge ("the learned ADJ") in MCA DJ/12/2021
(Nilofar Khan & Ors. v. Ghulam Sarwar & Anr).
2. The proceedings emanate out of a suit bearing No. CS SCJ
492/2020 instituted by the respondents, as the plaintiffs, against the
petitioner and other defendants.
3. The parties to the suit were occupants of different areas of the
property located at C-187, Abul Fazal Enclave, Part-2, Shaheen Bagh,
Jamia Nagar, New Delhi ("the suit property").
4. The respondents, as the plaintiffs in the suit, complained that the
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petitioner had installed a locked iron gate on the terrace of the fourth
floor, thereby restraining access of the respondent to the terrace.
5. As such, the suit sought a decree of permanent and mandatory
injunction in favour of the respondents and against the petitioner and
other defendants in the suit, restraining the petitioner and other
defendants from interfering with the access, by the respondents, to the
suit property, creating third party interest in respect of the suit
property or from restraining access, by the respondent, to the rooftop
of the suit property.
6. A decree of mandatory injunction, directing the petitioner to
forthwith remove the iron grills installed above the fourth floor of the
staircase, which prevented access, by the respondent, to the rooftop
and the terrace, was also sought.
7. The suit was accompanied by an application under Order
XXXIX Rules 1 and 2 of the CPC, seeking an ad interim injunction in
favour of the respondents and against the petitioner, restraining the
petitioner from illegally and forcefully fixing iron grills on the passage
to the rooftop and for a direction to the petitioner to remove the said
grills and permit access, by the respondents, to the rooftop of the suit
property.
8. By order dated 15th March 2021, the learned Senior Civil Judge
("the learned SCJ") disposed of the application of the respondents
under Order XXXIX Rules 1 and 2 of the CPC.
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9. On a prima facie examination of the evidence before him, the
learned SCJ upheld the right of the respondents to access to terrace for
the purpose of use of common amenities such as fixation of antenna,
water connection, electricity connection etc.
10. As such, it was held that, while no interim direction restraining
the petitioner and other defendants from parting possession with the
suit property or any portion thereof could be granted, the respondents
did have a right to access the terrace for the aforesaid limited
purposes. In view thereof, the learned SCJ held that it was expedient
in the interests of justice that the respondents "be given the right to
access the terrace on reasonable hours, as and when the need arises,
between 09.00 a.m. and 05.00 p.m. (when defendant no.1) (the present
petitioner), shall provide the keys of the terrace for the purposes of
fixing antenna, sewer connection, water connection, electricity etc. as
specifically mentioned in the GPA of the plaintiff (i.e. the present
respondent)".
11. For this purpose, the respondents were also required to intimate
the petitioner, at least one hour in advance.
12. Aggrieved by this order, the respondent appealed to the learned
ADJ vide MCA DJ/12/2021 (Nilofar Khan & Ors. v. Ghulam Sarwar
& Anr), in which the impugned order has come to be passed by the
learned ADJ on 27th July 2022.
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13. The learned ADJ has held, in the impugned order, that, once the
learned SCJ has recognised the right of the respondents to have access
to the terrace at all reasonable hours, it was unreasonable on the part
of the learned SCJ to grant limited access to the terrace and to require
the respondents to intimate the petitioner an hour in advance of their
requirement. The learned ADJ has held that the learned SCJ ought to
have kept in mind the fact that the parties were locked in acrimonious
litigation.
14. In these circumstances, in order to balance the equities, the
learned ADJ has modified the directions issued by the learned ASCJ
by requiring the petitioner to hand over one set of the keys, to the
respondents, to the lock affixed on the gate at the fourth floor so that
the respondents would have independent access to the terrace at all
reasonable times during the pendency of the suit.
15. Aggrieved thereby, the petitioner is before this Court, invoking
the jurisdiction vested in this Court by Article 227 of the Constitution
of India.
16. It is obvious, at a bare glance, that the present case is not which
justifies invocation of the jurisdiction vested in this Court by Article
227 of the Constitution of India.
17. The impugned order is purely discretionary in nature. It has
been passed by the learned ADJ in exercise of the discretion vested in
him, and the directions issued by the learned ASCJ have been
modified by him in the manner which, according to him, were best
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suited to the interests of equity and justice.
18. Such a discretionary order, which cannot be said in any manner
to suffer from perversity, is completely immune from challenge under
Article 227 of the Constitution of India.
19. This Court, in exercise of its jurisdiction under Article 227 of
the Constitution of India, cannot substitute its subjective satisfaction
or exercise its discretion subjectively in such a manner as to substitute
the discretion and subjective satisfaction of the court below. Where
the order under challenge is discretionary in nature, Article 227 can
justify interference only where the exercise of discretion is perverse.
By no stretch of imagination can it be said that the impugned order
passed by the learned ADJ suffers from any perversity.
20. I am constrained to observe that, if the High Court were to start
interfering with such orders under Article 227 of the Constitution of
India, it is bound to shake the confidence of the district judiciary and
seriously impede the dispassionate exercise, by them, of the discretion
that the law vests in them.
21. In my considered opinion, it is only as a matter of chance
hierarchal circumstance that this Court is "above" the district
judiciary. Else, the district judiciary, and the learned Courts of which
it is comprised, exercise jurisdiction which, subjectively, is co-equal to
the jurisdiction exercised by this Court.
22. The High Court is required, at all times, to respect the exercise
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of discretionary powers by the district judiciary and not to act in a
manner as could convey an impression that the court is playing the
role of headmaster.
23. In this context, I may reproduce, with advantage, the following
passage from Sadhana Lodh v. National Insurance Co. Ltd.1:
"7. The supervisory jurisdiction conferred on the High
Courts under Article 227 of the Constitution is confined only
to see whether an inferior court or tribunal has proceeded
within its parameters and not to correct an error apparent on
the face of the record, much less of an error of law. In
exercising the supervisory power under Article 227 of the
Constitution, the High Court does not act as an appellate court
or the tribunal. It is also not permissible to a High Court on a
petition filed under Article 227 of the Constitution to review
or reweigh the evidence upon which the inferior court or
tribunal purports to have passed the order or to correct errors
of law in the decision."
24. In that view of the matter, I do not find the present case one to
be warranting interference by this Court under Article 227 of the
Constitution of India.
25. The order passed by the learned ADJ is well reasoned, and
reflects a proper appreciation of the rival equities in the case. It is a
discretionary order and does not suffer from perversity of any kind.
26. Having said that, it is made clear that the respondents, while
availing of the facility that the learned ADJ grants them, shall not
abuse the said facility. They have been permitted access to the terrace
only for limited purposes such as fixation of antenna, sewer
(2003) 3 SSC 524
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connection, water connection, electricity etc. Save and except when
such need arises, the respondents do not have unrestricted access to
the terrace.
27. It is made clear, therefore, that, if the respondents take undue
advantage of the access to the terrace, granted by the learned ADJ by
the impugned order, it shall be open to the petitioner to seek
modification of the aforesaid direction by moving an appropriate
application before the learned ADJ for that purpose.
28. In that event, the learned ADJ would be free to modify the
aforesaid direction keeping in view the facts and circumstances of the
case.
29. Subject to the aforesaid caveat, this petition is dismissed in
limine.
C. HARI SHANKAR, J.
AUGUST 5, 2022
dsn
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