O P KOHLI Vs. KRISHAN KUMAR GAUR

JUDGEMENT

(1.) The parties have locked horns over the question whether the appellant/plaintiff has any cause of action against the respondent. The learned Trial Court decided the case against the appellant and dismissed the plaint. The first Appellate Court affirmed the order of the learned Trial Court. The facts of the appellant's case emanating from the record are these. The respondent/defendant Krishan Kumar Gaur entered into an agreement to sell his house bearing No.100-A/2, Gautam Nagar, New Delhi with one Gurbachan Singh on 14.05.1984. The key controversy swirls around Clause 6 of the said agreement which runs as follows :-

(2.) The present appellant purchased the abovesaid house on payment of sale consideration of Rs.2,30,000/- from the abovesaid Gurbachan Singh vide agreement to sell and purchase dated 03.04.1986. It is stated that the appellant has stepped into the shoes of Gurbachan Singh as per the abovesaid agreement. The passage in question was not permitted till the filing of the suit. The parties were required to wait till May, 1999 as per abovesaid Clause 6. However, in between, during the last week of August, 1986 the respondent started constructing a pucca wall leaving a space of 3 feet wide and 11 feet long in front of the window of the bed room and bath room of the appellant's house, and thereby, committed flagrant violation of the terms and conditions of the abovesaid Clause 6. It also transpired that the respondent is going to sell the aforesaid vacant plot to somebody without giving 6 feet passage to the appellant. The respondent also threatened to damage the water pipe line and sewer of the appellant which was situated at a distance of about 4 feet from the wall of the house of the appellant and situated in the vacant portion of the plot of the respondent. Under these circumstances, the present suit for mandatory injunction was filed against the respondent on 29.09.1986.

(3.) The Trial Court came to the conclusion that due to abovesaid Clause 6, the contract in question is contingent. The appellant conceded before the Court that the passage had not yet been closed by D.D.A nor there was any notice or any intention of the D.D.A. to close the passage by 1999. The learned Court held that the suit filed by the appellant is pre-mature and the appellant did not have any right for grant of ad-interim injunction. Reliance was placed on a case decided by this Court in Jiwan Das v. Narain Das etc., 1981 Rajdhani Law Reporter 596, wherein it was held : -