BHAGWAN SINGH Vs. AMRIK SINGH

JUDGEMENT

(1.) The petitioner is aggrieved by an order dated 4.5.2002 passed by the learned Senior Civil Judge, Delhi in an appeal bearing MCA No.126/1996 whereby he set aside the order of the learned Civil Judge dated 2.5.1996 on an application under Order 39 Rule 1and2 CPC.

(2.) Brief facts relevant for the purpose of deciding this petition are that plaintiff/respondent filed a suit for permanent injunction seeking a relief against the defendants/petitioners that defendants should not interfere in any manner with the lawful use of the passage through the main entrance in the deodi shown as mark X in the site plan in street no. 12, Beadonpura, Karol Bagh, Delhi and to restrain them from interfering in the peaceful use and enjoyment of the premises shown as red in the site plan forming a part of the property No. 2382/83/12/30 Beadon Pura, Karol Bagh, New Delhi. An application under order 39 Rule 1and2 CPC was made along with the suit. The learned Civil Judge considered the history of litigation between the parties and the entire previous proceedings, and observed that no interim order was warranted against the defendants till the time the plaintiff was able to prove that he had a right of entry through the courtyard and deodi to approach rooms marked A and B in the site plan. She observed that the case of the plaintiff that he got the possession of the two rooms from the previous tenant Shri Pradeep Kumar Jindal could not be considered since the Court of Shri T.D.Keshav Civil Judge had held that Shri Pradeep Kumar Jindal himself could not prove his possession over the two rooms and hence he had no right of entry from deodi to these two rooms. This judgment of Shri T.D.Keshav was upheld by the Appellate Court. Since Shri Pradeep Kumar Jindal himself had not been able to prove his claim of possession, the plaintiff could not claim that he had taken these rooms from Shri Pradeep Kumar Jindal. The balance of convenience was not on the side of the plaintiff, since the act of the plaintiff would deprive defendants of their privacy and unless the plaintiff was able to show his bona fide right to access through the courtyard. no interim order was warranted.

(3.) The learned Sr. Civil Judge in the appeal observed that the perusal of judgment of Court Shri T.S.Kashyap, the then learned Sub Judge Shri S.M.Chopra, the then learned Additional Sr. Sub Judg,e Delhi and Shri G.P.Thareja, the then learned Sr. Sub Judge, Delhi shows that the main issue was whether the tenant Shri Pradeep Kumar Jindal was in occupation and possession as a tenant of two rooms mark A and B and whether he had a right to pass through the deodi. In these judgments, though the plaintiff/appellant had sided with him (Pradeep Kr. Jindal) but the Courts rejected his contention that he was a tenant in these two rooms and as such held that he was not entitled to pass through the deodi. But in the instant suit it was the admitted case of the parties that the appellant plaintiff was in occupation and possession of the rooms mark A and B . The rent note executed by the defendant respondent no.1 did not show common courtyard in the tenancy of the respondent-defendant no.1. In the site plan filed by the appellant plaintiff-defendant no. 2, a door had been shown between these two rooms and the courtyard. The claim of the appellant-plaintiff was that to reach these two rooms, he had a right to pass through the deori mark X , whereas the claim of the defendant-respondent no.2 was that he had an independent passage through the door C to C1 and the deodi was for exclusive use of the defendant no. 1 and his family. The court held that the previous litigation was of no help to the defendants as the litigation was on the footing that that Shri Pradeep Kumar Jindal was in occupation and possession of these two rooms therefore, his right to passage through deori was also not upheld. But in the present case, the situation had entirely changed as occupation of possession of plaintiff/appellant was admitted by defendant- respondent no.2 in these two rooms and it was admitted that he was the landlord and rent agreement dated 18.8.1981 was on record and prima facia this could not be disbelieved. It was also not the case of defendant no.1 in the WS that the open courtyard had not been shown in the tenancy by defendant - respondent no. 2. The Appellate Court came to the conclusion that the plaintiff had a right to pass through it and it was immaterial whether the two rooms marked A and B had a separate passage or not. The Court of Sr. Civil Judge therefore allowed the appeal and allowed the application under Order 39 Rule 1and2 CPC.