RAMINA KUMAR MINOCHA Vs. ARUN DEWANWALA AND ORS.

JUDGEMENT

(1.) THIS is an appeal against the order dated 04.04.2009 passed by the learned ADJ in Suit No. 116 of 2009 titled Arun Dewanwala & Ors. Vs. Mrs. Ramina Kumar Minocha & Anr., by virtue of which the prayers of the respondents/plaintiffs under the application Order 39 Rules 1 & 2 CPC have been granted. In addition to this, the appellant/defendant has been restrained from installing the iron grills and gates leading to the common terrace area. It may be pertinent to mention that the prayer in the application of the respondents/plaintiffs under Order 39 Rules 1 & 2 CPC was that the appellant/defendant, her legal heirs, servants, associates, agents and family members be restrained from encroaching upon the common portion/terrace at the second floor, putting malba and garbage in the common portion, preventing, interfering, creating hindrance and nuisance in the use of common facilities and staircase, terrace at the second floor and at the top of the flat of the appellant/defendant No. 1 situated in the property bearing No. E -492, Greater Kailash -II, New Delhi and raising any construction, installing, erecting any fixtures and fittings in the common portion of the property. Briefly state the facts of the case are the respondents/plaintiffs are claiming to be the owners or purchasers of various flats out of total five flats existing on property No. E -492, Greater Kailash -II, New Delhi. It has been alleged that in their documents of title purported to have been executed by their vendors, they have been given the right not only over the common portion but also the user of common terrace on the second floor of the suit property where water tanks and other common amenities such as TV antenna are placed. It is alleged that the appellant/defendant had purchased a flat no. 301 on the third floor opposite the common terrace in or around the year 2007 and thereafter she had installed iron grill and a gate on the staircase leading to her flat for the purpose of her security as a consequence of which ingress and egress of the respondent/plaintiffs to the common terrace area opposite her flat, which is one floor lower and where common water tanks and TV antenna of the residents have been installed, has been stopped. Since the matter could not be resolved by the parties, the respondents/plaintiffs, who are three in number, were constrained to file a suit for declaration, permanent and mandatory injunction claiming themselves to be the lawful users of the common terrace area as being common portion and also seeking mandatory injunction for the removal of the iron grills and the gate purported to have been put up by the appellant/defendant in the staircase of the second floor.

(2.) THE appellant/defendant filed her written statement and contested the claim. She has stated that the documents of purchase of the property of the respondent/plaintiffs showed that they had their servant quarter in the basement and only the water tanks were kept on the second floor. It was also alleged that one of the respondent/plaintiffs had pitched a structure on the terrace where he had located his servant who used to pose a security hazard to the appellant/defendant. In addition to this, he would also bathe and do all kinds of things which would not be approved of by any woman.

(3.) THE reply to the application was filed and the learned ADJ, after hearing the arguments, observed that the concern of the appellant/defendant pertaining to her security was understandable, but under the garb of security, she could not create hurdles in the enjoyment of the common terrace on the second floor of the building where common facilities like water tanks and TV antennas were installed as that were common to all the residents of the building. Accordingly, the learned ADJ observed that all three parameters for grant of any injunction were satisfied it restrained the appellant/defendant in terms of the prayer clause of application under Order 39 Rules 1 & 2 CPC. In addition to this, the learned ADJ also restrained the appellant/defendant from installing the iron grills and the gate in the way leading to the common terrace area