A.S Gupta (Since Deceased Thr His Lrs) v. G.D Sharma (Since Deceased Thr His Lr) & Ors

RAJIV SAHAI ENDLAW, J. AUGUST 02, 2018 ak

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 2nd August, 2018. + A.S GUPTA (SINCE DECEASED THR HIS LRS) ..... Appellant Through: Mr. Irfan Ahmed, Adv. Versus G.D SHARMA (DECEASED THROUGH LR) & ORS ..... Respondents Through: None for R-1. Mr. Sahil Dagar, Adv. for R-2. Mr. Jaideep Malik, ASC for SDMC. Mr. Dhanesh Relan, Standing Counsel with Mr. Kamal Sorout & Ms. Mrinalini Sharma, Advs. for DDA. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the CPC impugns the judgment and decree (dated 17th January, 2017 in RCA SCJ 5736/2016 of the Court of Senior Civil Judge (South)) of dismissal of first appeal under Section 96 of the CPC preferred by the appellant/defendant against the judgment and decree (dated 5th March, 2015 in Suit No.437/2014 (Unique ID No.02401C0201802003) of the Court of Civil Judge (West)) of permanent injunction in a suit filed by the respondent no.1/plaintiff against the appellant/defendant and against the respondents 2 to 4/defendants namely Bharti Airtel Ltd., South Delhi Municipal Corporation and Delhi Development Authority. 2. This appeal came up first before this Court on 26th July, 2017 when, without indicating the substantial question of law if any arising, notice thereof was ordered to be issued. 3. Counsel for the respondent no.2/defendant-Bharti Airtel Ltd., counsel for respondent no.3/defendant -South Delhi Municipal Corporation and counsel for respondent no.4/defendant -Delhi Development Authority have been appearing. 4. The order dated 15th November, 2017 records that the respondent no.1/plaintiff had been served but none appeared on behalf of the respondent no.1/plaintiff. Thereafter on 13th April, 2018 also none appeared for the respondent no.1/plaintiff. Today also none appears for the respondent no.1/plaintiff. The Suit Court record and the First Appellate Court records have been received. 5. The respondent no.1/plaintiff instituted the suit from which this appeal arises, claiming to be the owner of the first floor and agreement purchaser of the second floor of property No.K-6, NDSE Part-II, New Delhi and pleading: (i) that the appellant/defendant was the owner of the ground floor of the property and had sold and agreed to sell the first and second floors respectively to the respondent no.1/plaintiff; and, (ii) that the appellant/defendant had let out the ground floor to the respondent no.2/defendant-Bharti Airtel Ltd. which was running a telephone exchange- cum-office therein and in the process of installation and operation of the telephone exchange, had caused damage to the water and sewage line of the property and obstructed access, which the respondent no.1/plaintiff under the sale deed had of the rear portion of the property where the underground water tank and the booster were installed. Reliefs of, (a) permanent injunction restraining the appellant/defendant and respondents 2 to 4/defendants from using the ground floor meant for residential purposes for commercial and industrial purposes; (b) injunction restraining the appellant/defendant and the respondents 2 to 4/defendants from damaging and tampering with the sewage pipe lines, water supply pipelines, water booster pump and water storage tanks; (c) mandatory injunction directing the appellant/defendant and the respondents 2 to 4/defendants to restore status quo; and, (d) permanent injunction restraining the appellant/defendant and the respondents 2 to 4/defendants from obstructing the respondent no.1/plaintiff from having access to the water facility in the rear courtyard of the premises were claimed. 6. The Suit Court passed a decree in favour of the respondent no.1/plaintiff and against the appellant/defendant and the respondents 2 to 4/defendants i) of permanent injunction against misusing the residential premises for commercial purposes thereby causing nuisance and safety hazard to the respondent no.1/plaintiff and his family members; and, ii) of permanent injunctio