SUBHASH AGGARWAL Vs. KHUSHAL CHAND

JUDGEMENT

(1.) This is an application by the plaintiff under Carder 39, Rule 4 and Section 151 of the Code of Civil Procedure for vacating the order dated May 20, 1994 passed on I.A. Nos. 2164,5144 and 6052 of 1990.

(2.) . Brief facts which gave rise to the present application are as under: that the plaintiffs herein filed a suit bearing No. 2104/90 for declaration and permanent injunction, inter alia, to declare that the defendants herein or any other person who has derived right, title and interest trough them are not entitled to the use of the comnon passage in the premises bearing Nos. 7/1 and 7/2, Lancer Road, B.D. Estate, Delhi. Shri Khushal Chand Jain, predecessor-in-interest of the applicant herein was in occupation of the ground floor of the premises bearing No. 7/2, Lancer Road, B.D. Estate, Delhi, at the time of the institution of the suit. Defendant No. 1, Shri Khushal Chand Jain during the pendency of the aforesaid suit sold the said ground floor portion in his occupation to the applicant herein ( Shri Rajinder Kumar Gadodia) vide sale deed dated September 20, 1993. There is a mention in the said sale deed that there is a common passage and the same will remain open for the use of the occupants. Shri Khushal Chand Jain in collusion with the plaintiffs moved an application, being I.A. No. 2146 of 1994, for modification of the order dated July 17,1990 which was allowed vide the impugned order dated May 20,1994. Shri Khushal Chand Jain thus played a fraud on the Court inasmuch as it was not brought to the notice of the Court that he had already sold the ground floor to the applicant herein vide sale deed dated September 20, 1993 with a clear stipulation therein that the 10 ft. wide disputed passage was the common passage meant for the use of all. Hence the installation of a gate in the middle of the common passage would cause hindrance and interference in the right of the applicant to use the said common passage. After having secured the said order the plaintiffs installed a gate on July 29, 1994 in the common passage. The plaintiffs and defendant No. 1 in collusion with one another surreptitiously obtained the impugned order by playing fraud upon the Court. With the installation of the said gate in the middle of the common passage the applicant is not in a position to enter his premises through the said common passage. He can now enter only through the service lane. He is also unable to park his car in the common passage because die service lane is, too narrow for parking of the car. It has therefore, been prayed that the impugned order dated May 20,1994 which was passed at the back of the applicant be set aside.

(3.) . The plaintiffs have opposed the application, inter alia, on the following grounds: that much before the purchase of the premises bearing No. 7/2, Lancer Road, B.D. Estate, Delhi, by the applicant herein from Shri Khushal Chand Jain the order dated July 16,1990 was passed by the Court whereby defendant No. 1 was restrained from parking or driving his vehicles in the common passage marked Z.toZI shown in green colour in the plan. Thus it is false and preposterous to allege that the order dated May 20, 1994 was secured by practising fraud on the Court. The applicant herein has all along been complying with and following the said order till he moved the present application before the Court without any demur and protest. The plaintiffs are the exclusive owners of the alleged common passage though the applicant has been permitted to use the said common passage. The garages of the applicant are on the rear side of the property in his occupation. Thus he can use the rear side road for ingress and egress to the premises in his occupation. His balcony and lawn are also facing the rear side of the road. The application is false and frivolous and is liable to be dismissed.