Rajinder Kumar and Ors v. Padmavati Thr Legal Heir & Anr

order.

NAJMI WAZIRI, J AUGUST 19, 2014/acm

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 19.08.2014 + CM(M) 313/2013, CM No.4594/2013 RAJINDER KUMAR AND ORS ..... Petitioners Through: Mr. Mayank Goel, Adv. versus PADMAVATI THR LEGAL HEIR & ANR ..... Respondents Through: Mr. S.B. Aggarwal, Adv. CORAM: HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE NAJMI WAZIRI 1. This petition impugns an order dated 22.02.2013 by the Additional District Judge (East) dismissing the petitioners' appeal which was filed by them against order dated 16.03.2012 of the ACJ (E) in Execution Case No. 45/2007, by way of which the petitioners had sought setting aside/review of an order dated 16.03.2012, which in turn had dismissed the petitioners' application under Order XLVII Rules 1 & 2 CPC seeking review of two earlier orders dated 16.03.2012 and 04.05.2012. This is the sixth round of litigation by the petitioners. They have lost all the previous rounds. Their case is that vide rent note dated 15.09.1970, the father of the petitioners became a tenant in the suit property comprising a sehan, verandah, two rooms, one baithak in Shop No. 327, Anaj Mandi, Shahdara, Delhi. In 1992, a suit for declaration and permanent injunction was filed by the petitioners seeking restrainment of the respondents/defendants illegally dispossessing them from the suit premises. In their counter-claim, the defendants sought an injunction against the petitioners from any interference in the defendants' free ingress and egress to the first floor/roof above the suit premises. On 16.05.2006, the suit was dismissed while the counter-claim of the defendants was decreed. The petitioners' first appeal against the judgment and decree was dismissed on 25.04.2007. Their Regular Second Appeal (RSA) before this Court being RSA No. 253 of 2007 was dismissed on 05.05.2011. In the execution petition filed by the Decree Holders, the Court directed the petitioners to remove the shutter on the ground floor of the shop in terms of the decree. Petitioners' application for review of the said order was dismissed on 04.05.2012. They went in Execution First Appeal which resulted in the impugned order. 2. The petitioners have challenged the said order on the ground that the direction for removal of the door and shutter from the suit premises would be detrimental to the rights of the JDs as tenant; it would tantamount to dispossessing them from the suit premises; the Court erred in not accepting the alternate staircase offered to be installed by the petitioners/JDs at their own expense, so as to settle the dispute permanently and finally, that substantial loss would be caused by removal of the doors/shutters. 3. In the Regular First Appeal, the Appellate Court found that the rent note of 1970 showed that the only portions which were rented out were sehan, varandah, two rooms and on baithak. There was no mention of any access to the terrace. The Court noted that: "14.It was also categorically mentioned in the rent note and admitted by Sh. Duli Chand Aggarwal (father of the plaintiffs) that he would have no objection regarding the passage meant for other tenants. This particular fact clearly reveals that the entire shop No. 324 had not been rented out and the passage meant for ingress and egress for other tenants was not to be disturbed by Shri Duli Chand Aggarwal. It means that there were other tenants also at the time of creating tenancy in favour of Shri Duli Chand Aggarwal in the year 1970. Had it not been so, there was no requirement of mentioning about such passage meant for other tenants. 15. I have seen the cross-examination of plaintiff No. 1 Sh. Rajinder Kumar as well and in his cross examination also, he admitted that the rented premises consisted of one Sahin, Verandah, two rooms and one baithak. He categorically claimed in his cross examination that at the time of inception of tenancy, the tenanted premises was comprising of one verandah, sahin, baithak and two rooms on the ground floor. He also admitted that there was a