Delhi High Court
Sh. Sat Narain And Anr vs Nalanda Modern Public School And Ors on 27 March, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 23.01.2024
Judgment pronounced on: 27.03.2024
+ CM(M) 1485/2022, CM APPL. 56796/2022--stay, CM APPL.
3099/2023-Modification of the order dt. 30.12.2022, CM APPL.
3328/2023--recalling order dt. 30.12.2022, CM APPL. 4899/2023--
dir. To respondent to remove the iron gate
SH. SAT NARAIN AND ANR ..... Petitioners
Through: Mr. Aschim Vachher and Mr.
Mukesh Tyagi, Advocates.
versus
NALANDA MODERN PUBLIC SCHOOL AND ORS
..... Respondents
Through: Mr. Sandeep Sharma, Mr. Aman
Dhyani, Mr. M. A. Khan and Ms.
Kanchan Semwal, Advs.
CORAM:
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
1. The present petition has been filed under Article 227 of the
Constitution of India, 1950 by the petitioners for setting aside the order
dated 24.12.2022 passed by the court of Learned Civil Judge-07, District
Central, Tis Hazari Courts, Delhi (hereinafter referred to as "Trial Court")
in SCJ No. 403/2018, titled as "Nalanda Modern Public School & Ors. V
Sat Narain & Anr." whereby the application filed by the respondents under
Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as
CPC) has been partly allowed by permitting respondents to install a gate in
front of the suit property.
2. Petitioners herein are the defendants and respondents herein are the
plaintiffs in SCJ No. 403/2018 which is pending adjudication before the
learned Trial Court.
3. Before this court deals with the relevant facts of the present case, it is
considered vital to descriptively put forth the background of the suit
property. Initially, khasra no. 857/1, admeasuring (4-08) Extended Lal
Dora, Abadi, Burari, Delhi was owned by Mir Singh, Devi Singh and Hari
Ram, all sons of late Ram Dass, having 1/3rd share each. Mir singh was
survived by his widow namely; Javitri Devi, who became owner of 1/3 rd
share of the aforesaid property after the demise of her husband. Whereas,
Devi Singh was having his two sons namely; Bhim Singh and Dharambir
who became the sole owners of share of Devi Singh. Both the sons of Devi
Singh sold their shares to Javitri Devi vide four separate registered sale
deeds all dated 07.02.2011. The petitioners before this court are the legal
heirs of the 3rd share holder of late Hari Ram. The land of all the co-sharers
was mutually and orally partitioned and subsequent thereto the respective
parties had raised their respective construction without any hindrance from
either side.
4. Respondents in their plaint filed before the learned Trial Court have
averred that the plaintiff no. 2 to 6 are the owners of the suit property,
respondent no. 1/plaintiff no. 1 is the lessee, who has been running the
school namely, Nalanda Modern Public School since 1995. The subject
property is the common gali between the properties of the petitioners and
respondents which is 12 x 330 feet. The petitioners have constructed their
houses, having their windows, entry and exit in the common gali and even
the school of respondent no. 1 is having gate, entry and exit and window
opening towards the subject property since the very beginning. The
respondents have further averred in their plaint that, petitioners have no
right, title or interest in the subject property.
5. Based on the allegations made by the respondents, the respondents
herein filed a suit for permanent injunction on 30.01.2018 against the
petitioners seeking a decree of permanent injunction against the petitioners,
their officials, associates, employees, attorneys, family members etc.
thereby restraining them from encroaching upon or raising any kind of
construction or digging the land underneath the gali in question or from
creating any kind of hindrance or nuisance in free and smooth entry or exit
of the respondents. Needless to say, that the petitioners contested the suit by
filing their written statement on 09.03.2018. The respondents also
preferred an application under Order XXXIX Rule 1 & 2 CPC read with
Section 151 CPC seeking following relief:-
"It is, therefore, most respectfully prayed that this Hon'ble court
may kindly be pleased to pass an Exparte ad-interim
injunctions, in favour of the plaintiff against the defendants,
their- officials, associates, attorneys, family members etc,
thereby restraining the ~ defendants, their family members etc.
from encroaching upon or raising any kind of construction. or
digging the land underneath the Gali in question or from
creating any kind of hindrance or nuisance in free and smooth
entry or exit of the plaintiffs, as shown in red colour in the
annexed site plan situated between the property of the plaintiffs
and the defendants bearing kh. No. 857/1, Sant Nagar, Main
Road, Extended Lal Doara Abadi, Burari, Delhi- 84 ad-
measuring 12x330 and further defendants be directed to level
the soil in the Gali in question and to fill the holes or plaintiffs
be allowed to level the soil in the Cali, till the final disposal of
the case."
6. The said application came to be decided vide order dated 16.03.2018
wherein the learned Trial Court granted status quo with respect to the
subject property till pendency of the suit.
7. The aforesaid status quo order was challenged by the parties by way
of filing cross-appeals before the learned Senior Civil Judge. Vide order
dated 11.04.2018, the learned Senior Civil Judge maintained the status quo
order by observing that at the same time, mandate of orders passed under
Order XXXIX Rule 1 & 2 CPC is to protect the suit property in question till
disposal of the suit, the said suit property in this case is the gali in question.
Therefore, that gali has to be protected till the disposal of the suit. In
addition, learned Senior Civil Judge restrained the respondents i.e. Sat
Narain and others from digging up the said gali, not to further construct in
the gali in question and also restrained them from causing any hindrance in
the ingress and egress of the appellants. So far as the levelling of the
already dug up gali is concerned, the learned Senior Civil Judge directed
the appellant i.e. Nalanda Modern Public School and others to level the
same within a week from 11.04.2018.
8. It is the case of the petitioners that, on 08.09.2020, the respondents
brought bricks/raw materials at the subject property and they started laying
down the road on it and started converting it into a pacca road with a view
to make it a passage for usage of the subject property. Consequently, the
petitioners filed an application under Section 151 CPC seeking necessary
interim directions against the respondents restraining them from indulging
into any such activities for changing the nature of the subject property.
Upon the said application, the respondents filed their undertaking dated
23.10.2020 before the learned Trial Court stating that they will not raise any
type of construction/cemented/metal road in the gali/subject property in
question except permissible filling/levelling in case of holes in the subject
property in question as per the court direction.
9. Subsequently, on 05.03.2021, the respondents filed an application
under Section 151 CPC for passing necessary directions for them to
construct pacca road and installation of iron gate on the subject property.
The said application was refuted by the petitioners by filing a reply.
However, at that time the respondents did not press the said application and
the matter was proceeded further. Meanwhile, petitioners filed the contempt
proceedings against respondents on 08.07.2022 for breach of undertaking
dated 23.10.2020, the said contempt application is pending adjudication.
10. The issues were framed vide order dated 30.01.2019. The
respondents have already filed evidence before the learned Trial Court. In
the meantime, the respondents moved an application for early hearing and
disposal of the application under Section 151 CPC dated 05.03.2021. The
said application was taken up for hearing on a preponed date, thereby
allowing the application seeking early hearing. The learned Trial Court
vide the impugned order dated 24.12.2022 partly allowed the said
application filed under Section 151 CPC of the respondents whereby
permitting them to install a gate in the front of the main road on the subject
property. Aggrieved petitioners have assailed the said order before this
Court through the present petition.
Submissions by the Petitioner
11. Mr. Aschim Vachher, learned counsel for the petitioners submitted
that the Learned Trial Court did not appreciate that the respondents have no
locus standi to file the suit and to seek any relief against the petitioners qua
the subject property as the petitioner are the owners of the said property.
The respondents have falsely claimed that the land of the petitioners is a
passage and under the garb of it, the respondents want to grab the land of
the petitioners.
12. Learned counsel further submitted that the prayer for installation of
an iron gate by virtue of an application under Section 151 CPC is
impermissible as the same is beyond the pleadings, the fact which has not
been considered by the learned Trial Court while passing the impugned
order.
13. The learned counsel submitted that, the Learned Trial Court did not
appreciate that already a status quo order dated 16.03.2018 passed by the
learned Predecessor Court is operating till date. Thus, the impugned order
partly allowing the application of the respondents to install a gate towards
the main road on the subject property is in violation and contradiction of the
status quo order dated 16.03.2018 and thus is liable to be set-aside.
Submissions by the Respondents:
14. Conversely, Mr. Sandeep Sharma, learned counsel for the
respondents submitted that the iron gate affixed at the main 100 ft. road in
the subject property is necessary for security purposes and will be
beneficial for both the parties. Moreover, students in school of respondent
no. 1 use the disputed subject property to commute and hence for their
safety, security and smooth functioning of the school, gate is required.
15. It is submitted that the petitioners dug up the subject property and
due to rainy season, respondents were facing problem in using the subject
property and hence it needed to be made pacca/mettled. More so, since the
subject property is a gali leading to the main 100 feet road towards western
side of the petitioners and some anti-social elements in the night come from
the said main road and create nuisance and even for security purpose the
iron gate is essential as it will be beneficial for both the parties. The
learned Trial Court has passed the impugned order after considering all the
relevant facts, circumstances and submissions, which does not need any
interference by this Court.
Analysis & Conclusion
16. The controversy in the present petition revolves around a gali
between the properties of the petitioners and respondents, which is 12 x 330
feet and is subject matter of the suit. According to the respondents, it is a
common gali of the parties to the suit, whereas, the petitioners have claimed
that the respondents have no right, title or interest in the subject property.
17. The application moved on behalf of the respondents under Order
XXXIX Rule 1 & 2 CPC has already been decided and the parties to the lis
have been directed to maintain status quo with respect to the subject
property till the pendency of the suit. It is not disputed that the said status
quo order, which was challenged by way of cross-appeals before the
learned Senior Civil Judge is still in operation with certain modifications
vide orders dated 11.04.2018. More so, the respondents on 08.09.2020 had
tried to lay down a pacca road on the subject property and alarmed by their
actions, the petitioners filed an application under Section 151 CPC seeking
directions restraining the respondents from indulging into such an activity
for changing the nature of the subject property. During the hearing of the
said application, which came to be disposed of vide order dated 23.10.2022,
the respondents made statement before the learned Trial Court thereby
undertaking not to raise any construction / cemented / metal road in the gali
/ suit property in question except permissible filling / levelling in case of
holes in the gali / suit property in question as per the Court direction.
Accordingly, the learned Trial Court directed the respondents to be bound
by their statements and disposed of the application.
18. However, the respondents filed an application on 05.03.2021 seeking
further directions from the learned Trial Court allowing them to make pacca
road and installation of iron gate in the subject property. The learned Trial
Court vide impugned order dated 24.12.2022, partly allowed the application
under Section 151 CPC thereby observing as under:-
"(i) Plaintiffs are at liberty to affix the iron gate, as prayed, at their
own expenses within 10 days in presence of defendants or their
representatives and keys of the said gate shall also be given to
defendants.
(ii) Plaintiffs are also at liberty to only fill/level the said gali (and
not to construct it or make it pucca) in terms of orders dated
11.04.2018 passed by the Ld. Appellate Court, at their own
expenses within 10 days, for smooth functioning & usage of the
same by parties to the suit."
19. Pertinently, vide order dated 30.12.2022, this court stayed the
impugned order till the adjudication of the present petition. Moreover, on
19.10.2023, the respondents before this Court submitted to remove the iron
gate installed by them on 31.12.2022 within a period of one week.
Thereupon, the petitioners gave their no objection to respondents to level
the subject property in terms of permission granted by learned Trial Court
vide order dated 24.12.2022 and the parties were bound down by the
statements given by them in Court on 19.10.2023. It is not disputed that
petitioners removed the iron gate without prejudice to their rights &
contentions & made the statement before this Court on 02.11.2023.
20. The admitted position is that status quo order is still continuing with
certain modifications made by the learned Senior Civil Judge vide order
dated 11.04.2018 as mentioned above. Insofar, the submission regarding
security & safety is concerned, it is not disputed that plaintiff no. 1, the
school, is operational since 1995 and till 05.03.2021, plea regarding safety
concerns was never raised.
21. A reading of the impugned order makes it clear that the learned Trial
Court has not assigned any reasons for partly allowing the application under
Section 151 CPC except for keeping in view the safety and security of the
students of respondent no. 1 / school.
22. In view of the aforesaid, the impugned order granting liberty to
respondents to affix iron gate is set aside. Regarding levelling the gali /
filling of holes, no interference by this Court is required as on 19.10.2023,
petitioners gave their no objection for doing so and they are bound by same.
23. The petition along with pending applications accordingly stands
disposed of.
SHALINDER KAUR, J.
MARCH 27, 2024
ss
