Keshav Aggarwal v. Sudershan Kumar Banga & Ors

V.B.GUPTA, J. ab

* HIGH COURT OF DELHI: NEW DELHI CM (M) No. 941/2010 & CM No. 13032/2010 & CM No. 16435/2010 % Judgment reserved on: 23rd September, 2010 Judgment delivered on: 20th October, 2010 Sh. Keshav Aggarwal Son of Sh. M. R. Aggarwal, R/o B-365, Third Floor, Chitranjan Park, New Delh-110019. ….Petitioner. Through: Mr. Sandeep Sharma, Adv. Versus 1. Sh. Sudarshan Kumar Banga, S/o Sh. Jiwan Mal Banga, R/o B-365, Ground Floor, Chitranjan Park, New Delhi-110019. 2. Smt. Aradhana Banga, Wife of Sh. Sudarshan Kumar Banga, R/o B-365, Ground Floor, Chitranjan Park, New Delhi-110019. 3. Sh. P.P. Sharma, R/o T-23, Khirki Extn., Malviya Nagar, Delhi-110017. ….Respondents Through: Mr. Saurabh Trivedi, Adv. for Respondents no. 1 and 2. Respondent no. 2 in person. CORAM: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? No 3. Whether the judgment should be reported in the Digest? No V.B.Gupta, J. Present petition under Article 227 of the Constitution of India has been filed by the appellant against order dated 22nd May, 2010 passed by Additional District Judge, New Delhi, whereby appeal filed by the respondents against order dated 11th February, 2010 passed by Judge Small Cause Court was allowed. 2. Brief facts of this case are that petitioner and his wife are the joint owner of the entire third floor of property bearing no. B-365, Chitranjan Park, New Delhi. Respondent nos. 1 and 2 are the owners of the ground floor. On the ground floor, there is a front setback, east side common passage and rear setback for common usage of the occupants so as to facilitate the common facilities. There are water pumps installed for each floor adjacent to the underground water tank. Respondent nos. 1 and 2 in violation of the terms and conditions contained in the sale deed, have debarred the petitioner and other occupants from operating, maintaining and cleaning the water pump as well as groundwater tank. Aggrieved by their illegal action, petitioner filed a suit seeking permanent injunction against the respondents. Trial court after considering the pleadings, allowed the application of the petitioner under Order 39 rule 1 and 2 of the Code of Civil Procedure (for short as "Code"), vide order dated 11th February, 2010. 3. Aggrieved by the trial court"s order, respondents preferred an appeal. First Appellate Court, vide order dated 18th March, 2010, stayed the operation of order dated 11th February, 2010 of the trial court. 4. Being aggrieved, petitioner filed CM (M) No. 497/2010 in this Court, but the same was dismissed on 16th April, 2010 with following observations; "Since petitioner has already approached the Appellate Court for vacation of the ex parte order of stay, there is no need for this Court to interefere with the matter." 5. There after, petitioner filed an application under Order 39 rule 4 of the Code for vacation of the ex parte stay granted by the First Appellate Court. First Appellate Court, set aside order dated 11th February, 2010 passed by the trial court and allowed the appeal of the respondents, vide impugned order. 6. It is contended by learned counsel for petitioner that First Appellate Court erred in holding that the respondents have full proprietary rights including the rear side of the ground floor where the water pumps and tanks are installed, despite the fact that trial court has given a finding that the sale deed of the respondents does not mention anything of the common passage on the rear side of the ground floor as under absolute ownership of the respondents. The common passage includes rear side back, entry, exit, stairs and lift and no one exclusively owns the said common facilities. 7. On the other hand, it is contended by learned counsel for the respondents that petitioner has limited right to have access to the rear court yard only for purposes of repairing and maintenance of the water tank and booster pumps at reasonable times an