AKESH KUMAR JAIN Vs. HARMEET SINGH BAKSHI

JUDGEMENT

(1.) An application by plaintiffs under Section 151 of theCode of Civil Procedure for permission to dig up a tubewell/borewell of sufficientdepth in the backyard of the suit premises at their own expense for their exclusiveuse and enjoyment. They further want through the present application to allow theplaintiffs to put their exclusive use two overhead water tanks out of the fouroverhead water tanks for their own exclusive use and enjoyment and for supplyingthe water on the first floor i.e. the tenanted accommodation in occupation of theplaintiffs.

(2.) . A few facts for the proper appreciation of the points in controversy before thisCourt are as under: that the plaintiffs are the tenants of defendant No. 1 on the firstfloor of property bearing No. D-l 059, New Friends Colony, New Delhi since 1980 ona monthly rent of Rs. 2,530.00. Defendant No. 1 in collusion with defendant No. 2 arebringing pressure on the plaintiffs in different ways in order to compel them tovacate the tenanted accommodation. Hence, the plaintiffs are compelled to institutethe present suit. The water supply to the tenanted accommodation in occupation ofthe plaintiffs is through a tubewell installed in the backyard of the building. A jetpump is installed on the tubewell which pumps the water to the overhead watertankon the terrace floor. There is no MCD supply of water in the said premises and thetubewell is the only source of feeding. There is not enough supply of water throughthe Municipal line even to the first floor. Theplaintiffs assuch are wholly dependenton the tubewell for the supply of water to their premises for all their needs. Theplaintiffs are experiencing acute shortage of water since the jet pump quite often failsto pump water to the overhead tanks due to the decrease in water level. DefendantNo. 2 who is in occupation of the ground floor wants to oust the plaintiffs byintimidating and harassing them. The plaintiffs thus pray that they should beallowed to instal a tubewell in the backyard of the suit premises attheir own expenseand for their own exclusive use. The application is supported by an affidavit.

(3.) . The above application has been opposed by defendant No. 2 inter cilia on thefollowing grounds: that the present application is not maintainable inasmuch as thepremises insuit are governed by the provisions of the Delhi Rent Control Act. Thus,the reliefs sought through the present application could only be sought through apetition under Section 45 of the Delhi Rent Control Act i.e. from the Rent Controller.Thus the present application could have been moved only before the Rent Controller,provisions of Section 151, Civil Procedure Code whereunder the present application has beenmoved, could not come to the rescue of the plain tiffs inasmuch as there is a specificprovision under Section 45 of the Delhi Rent Control Act whereunder the presentapplication could have been presented to the Rent Controller. It is false and preposterous that there is no adequate water supply to the tenanted accommodationof the plaintiffs. The plaintiffs cannot be permitted to instal a tubewell on the groundfloor which is in occupation of defendant No. 2. The plaintiffs should confinethemselves to their own tenanted premises. They cannot be permitted to utilise a partof the accommodation which docs not form part of their tenanted accommodation.The application is thus liable to be dismissed.