Nitin Garg & Anr v. Ratna Kapoor & Anr

KAUR, J. A-5 & 6 ^ IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment resented on:23.4.2013 Judgment delivered on:30.4:2013 + CM(M) No.379/2013 &C.M. No.5685/2013 AND + CM(M) No.380/2033 &C.M. No.5690/2013 NITIN GARG & ANR. Petitioners Through; MiR.K.Chawla, Adv. Versus RATNA KAPOOR & ANR. Respondents Through; Mr.Tridep Pais with Mr.Shiyam Shanna, Advocates. COR AM; HON'BLE MS. JUSTICE INDERMEET KAUR INDERMEET

KAUR, J. The petitioner is aggrieved by the impugned order dated

26.02.2013 which had resented the finding of the Civil judge dated

08.6.2012 on the application filed by the respondents along with his statement-cum-counter claim under Section 39 Rule 1 and 2 of the Code of Civil Procedure (hereinafter refeired to as the Code). CM(M)Nos.379/2013& 380/2013 Page 1 of8 Recordshowsthatthe presentsuithasbeen filedby the petitioner seeking peipetual and mandatoiy injunction against the respondents. Petitioneris the legal ownerofthe secondfloor with the tenacerightin propeityNo.856, Block-D, New Friends Colony. He had purchasedit fiom Meena Seth vide a registered sake deed dated 03.8.2006. Respondent/defendantno.1 is the owner and in possessionof the first floor of the same propeity also having purchased it from the same erstwhile owner vide registered sale deed dated 02.01.2006. Suit was accordingly filed. The prayer m the plaint was that the respondents should be resti'ained from encroaching any pait of the teiTace in the second floor of the aforenoted propeity by affixing any fixture. This suit had been filed as the plaintiff was under appreliension that a solar water heater was proposed to be installed by the respondents; this is clear from the avennents made in the plaint. A. written statement-cum-counter claim along with an applicationunder Order 39 Rale 1 & 2 of the Code had been filed. The submission of the respondent is that the installation of the water tank would be in the common area which is available to both the paities being the top teiTace of the propeity which is distmct from the teiTace. Even othei-wisethe water tanks and the geysers of the respective paities also fonn pait of the first floor; right of constructionis availableto the petitionerto constnictonthe tenace floorbut in tenns of Clause 18 and Clause 19 of the sale deeds of the respective paities in such an eventuality'where consfructionis canied out by the petitionerit would CM(M)Nos.379/2013&380/2013 Page 2of8 be incumbent upon him, at his own cost and expenses to remove the water tanks and geyser to the top teiTace;the top teiTace would remain open to the sky and having in area of more than 11 metres, the respondent should be pennitted to install his solar heater which would not be more than 2.5 meti'es. To support this submission on the dimension of the solar heater report of "Seema Solar Enteiprises" has been placed on record. Arguments have been addressed at length by the learned counsel for the parties. On behalf of the petitioner, it is pointed out that the impugned order suffers j&'om a clear illegality as the discretion exercised by the Civil Judge is fair and reasonable; the Appellate Court could not have substituted its own factual view upon the view of the Civil judge as an appeal in such cii-cumstances is limited in its scope. Counsel for the petitioner has placed reliance upon AIR 2005 SC 1444 Metro Marins & Anr. Vs. Bonus Waich Co. Pvt. Ltd. as also AAIR 2002 Delhi 501 ^ Daulat Singh Vs. Delhi Golf Club Ltd. to support, his submission that where an interim injunction of the nature as has been granted by the impugned order is passed, it would amount to the decreeing of the suit itself; such an injunction being in the mandatoiy fonn would in fact encompass the prayer which has been made in the plaint and such a relief is not pennissible. Arguments have been countered. Learned counsel for the respondent points out that in no manner does the impugned order suffer from any infinnity. He has drawn attention of this court to the CM(M)Nos.379/2013 & 380/2013 photographsof the teixace floor; it is pointedout that it is an admitted positionthat the geyser and water tank of the pattiesare fitted on this teiiace floor and the tiial courthas interpretedClause 18of the saledeed of the petitioner in its coirect perspective; the top teiTace floor is distinct fi-om the teiTace floor and even presuming that the right of consti'uction is available to the petitioner at the teirace floor, in such a situation it would still be incumbent upon the petitioner to remove the amenities which were being enjoyed by the respondent at his own cost and shift them to the top teiTacefloor. The impugned order has drawn the fine distinction between the tenace floor and top teiTace floor in its conect perspective. Impugnedorder calls for no interference. Reliance has been placed upon (2006) 8 SCC 367 M. Gurudas and Ors. Vs. Rasarnian and Ors. to substantiate a submission that a prima facie view is a finding of fact and where the triple test of an injunction has been satisfied as it was so in this case, no interference is called for. Arguments have been heard. Record has been pemsed. This appears to be a contentious litigation between two paities who are admittedly puichasers of the first floor and second floor of the same propeity. They have httle choice between themselves but to live as haimoniousl^' as possible in the background of their respective grievances. The plaint shows that the petitionerwas under an apprehension that the respondentswould be installinga water heater on the tenace floor which is a portion where admittedlythe geysers and water tanks CM(M)Nos.379/2013&380/2013 Page 4of8 ofthe partiesai'e alreadyinstalled. The sale deed by viitueofwhichthe petitioner has pui'chased the second floor and its teuace right is a registereddeed dated 03.8.2006. Clause 18 of this sale deed which is the bone of contention and which has been inteipreted differently by the two courts below is relevant for the conti'oversy in hand. It reads as under: "That the entire terrace rights over and above the Second Floor shall remain the exclusive property of the VENDEES, who shall have full right of further constructionon it, as and whenpermittedbvM.C.D. infiitureand insuch event, the VENDEES shall shift the lift room, overhead water tanks and other common facilities and amenities so provided to the other owners/occupantsof the said building(ofthe same size and same location)on thenewly built top terraceat their own cost and expensesand shall ensure that during the course of constructionno damage is caused to the existingstructureof the buildingand the normal water supply is maintained". By viitue of this clause the entire terrace rights over and above the second floor are owned by the petitioner with additional right of fuither constiiiction as and when peraiitted by the MCD. In such an eventualitythe petitionerwould shiftthe lift room, overheadwatertanlcs and other facilities and amenities which the paities were enjoyuig till thento the top teiTacefloor and this would at the cost and expenseto be borne by the petitioner.This clause also specifiesthe size and location of the said amenities (which have been described as the lift room and overhead water tank) will remain the same. Noraial water supply also had to be ensured by the petitioner to the respondents. Relevant would it be to state that Clause 19 of the sale deed (dated 02.8.2006) of the respondentsalso spells out this same right CM(M)Nos.379/2013&380/2013 Page 5of8 which has been given to the petitioner. Relevantwould it be to extract Clause 19 of the sale deed as well; it reads herein as under: "19. That the VENDEE(S) shall have no ownership/usagerights of the terrace above the secondfloor of the saidproperty,and the ownerof thatportionshallhave full right to raisefiirtherconstructionon it, as and when permittedby Municipal Corporationof Delhi infuture and in such event, theparty doing the construction shall shift the lift room, overheadwater tanks and other coinmonfacilitiesand amenitiesso provided to the other owners/occupantsof the said building (of the same size and same location) on the newly built top terrace at his/her own cost and expenses and shall ensure that during the course of constructionno damage is caused to the existing structure of the buildingand the normal water supply is maintained to the occupants of the said building." This document states that the respondents would have no ownershipor user right of the tenace above the secondfloor and it will be the sole right of the petitioner to raise a constructionupon it as and when pennitted by the local bye-laws. Rider attached is that as and when this construction is canied out the lift room and overhead water tanks as also the other facilities being occupied by the other occupants of the same building (includingthe respondents)would be shiftedto the top teiTacefloor at the expenseof the petitioner. Noimal water supply was to be maintained by the petitioner. Emphasis is laid on the same size and s?^me location of the shifting of the said amenities to the top tenace floor. Intent of the vendor and vendee can be well gathered fiom the aforenoted documents. The prima facie finding returned'by the Civil Judgein this contextappearsto be the correctfinding. The sale deed of both the paitiesconferownershipof entireten-aceright over and above CM(M)Nos.379/2013&380/2013 Page 6of8 the second floor to the petitioner and the respondents only have a limited access to clean the overhead tanks, repair them and to install their TV antenna and water tanks etc. This find mention in Clause 13 of the sale deed of the petitioner. The over emphasis on the word "etc." is misplaced as 'etc." is appealing after the installation of the TV antenna and has to be read ejusdem generis. to the preceding words; it cannot be given a wider meaning which the learned counsel for the respondent insists i.e. his right to place 2.5 meti'e solar heater in this propeity of the petitioner. Distinction between the 'top teiTace' and 'teiTace' is also not prima facie made out to enable the respondents to exercise any fmther rights than those which had already been granted to them in tenns of their sale deed. Impugned order has committed a patent illegality; it has inteipreted Clause 18 of the sale deed of the petitioner in a pen'erse manner. It has given an inteipretation to the clause which is neither pennissible nor contained ni the language of the various clauses of the respective sale deeds of the two paities all of which have to be read together. A specific queiy has also been put to the leamed counsel for the respondents which is to the effect that a solai"heater would nonnally be required only in the winter months, the present being the summer season; a suggestion was given that the trial can be directed to be expedited in order that the tial can well be over before the winter months approach. Leamed counsel for the respondents is however not agreeable to this proposal. CM(M) Nos.379/2013 & 380/2013

A-6 * IN THE HIGH COURT OF DELHI AT NEW DELHI o/o Judgmentresen>edon:23.4.2013 Judgment,delivered on:30.4.2013 + CM(M) No.380/2013 &C.M. No.5690/2013 ^ NITINGARG&ANR. Petitioners Versus RATNA KAPOOR & ANR. Respondents Appearance: MrR.K.Chawla, Advocate for the petitioner. Mr.Tridep Pais with Mr.Shivara Sharaia, Advocates for the respondent. CQRAM: HON'BLE MS. JUSTICE INDERMEET KAUR [NDERMEET KAUR, J. C For orders see CM(M)No.379/2013. APRIL 30, 2013 nandan INDERMEET