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Shashi Kapur Vs. Sulakshna Malhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 211 of 1980
Judge
Reported in18(1980)DLT62
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantShashi Kapur
RespondentSulakshna Malhan and ors.
Advocates: Arun Mohan and; S.K. Khanna, Advs
Excerpt:
.....procedure code, 1908. - - she went ahead with the necessary prerequirements of undertaking such construction like drawing up and sanction of plans etc. (9) before me the main contention urged by shri arun mohan, learned counsel for the petitioner is that by the lease-deed the tenant had been given exclusive possession of the entire premises which must be deemed to include the land appurtenant to the main building as well as the roof of the building which is to be understood as a usable terrace......facts are as under: (3) shrimati sulakshna malhan, the first respondent before me, entered into a lease-deed with shri shashi k.apur, the petitioner before me, in september or october 1976 in respect of premises s-231, panchsheel park, new delhi at a rent of rs. 1200.00 per month. soon thereafter, shrimati malhan gifted away to her sister mrs.mohini puri half of the property. mrs. mohini puri who lost her husband desired to settle down in delhi with her minor son and, thereforee, planned to construct the first-floor of the aforesaid premises. petitioner no. 2 helped her in the transfer of rights in respect of the land on which the premises were situated. she went ahead with the necessary prerequirements of undertaking such construction like drawing up and sanction of plans etc. and.....
Judgment:

Harish Chandra, J.

(1) This is a revision petition under Section 115 of the Code of Civil Procedure against an order dated 22nd February, 1980 of Shri K.S. Gupta, Additional Distt. Judge, Delhi, dismissing an appeal against the order of Shri O.P. Gonge, Sub-Juage 1st Class, Delhi dated 6th September, 1979 whereby he granted an interim injunction restraining the petitioners from obstructing the respondents in the construction of the first-floor of house No. S-231, Panchsheel Park, New Delhi, till the disposal of the Suit.

(2) In view of the extremely limited scope of judicial review under Section 115 of the Code of Civil Procedure it does not appear necessary to go into the details of facts leading to the passing of the impugned order. Even so, briefly recapitulated, the facts are as under:

(3) Shrimati Sulakshna Malhan, the first respondent before me, entered into a lease-deed with Shri Shashi K.apur, the petitioner before me, in September or October 1976 in respect of premises S-231, Panchsheel Park, New Delhi at a rent of Rs. 1200.00 per month. Soon thereafter, Shrimati Malhan gifted away to her sister Mrs.Mohini Puri half of the property. Mrs. Mohini Puri who lost her husband desired to settle down in Delhi with her minor son and, thereforee, planned to construct the first-floor of the aforesaid premises. Petitioner No. 2 helped her in the transfer of rights in respect of the land on which the premises were situated. She went ahead with the necessary prerequirements of undertaking such construction like drawing up and sanction of plans etc. and proceeded to begin actual construction. - When building material came to be stored at the site, i. e., on the land appartaining to the building on S-231) Panchsheel Park, much to the surprise of the respondents petitioner No. 1 objected to the construction activity and obstructed the same.

(4) Thereupon, Shrimati Sulakshna Malhan, Shrimati Mohini Puri and their mother, Shrimati Shanti Devi as plaintiffs filed a suit for permanent injunction against the tenant Shri Shashi Kapur. Bakshi Shiv Charan Singh was also imp leaded as defendant No. 2. It was averred in the plaint that the parties are relatives and have had cordial relations. Shrimati Mohini Puri, plaintiff No. 2 and now co-owner of half undefined portion of the premises was proceeding with the construction of the first floor at the premises but defendant No. 1 the tenant had started causing hindrance and obstruction in the work of construction. It was pleaded that it was all along known and clear to the defendants that it was proposed to construct the first floor and the defendants had all along been helpful in carrying out this intention but had suddenly changed their attitude and had started the impugned obstruction. It was further pleaded that in terms of the sanction construction was required to be completed within one year of the date of sanction and hence the urgency so that irreparable harm is not caused. On these and other averments, it was prayed that the defendants be permanently restrained from interfering with the carrying out of construction.

(5) Along with the plaint, the plaintiffs filed an application for an interim injunction.

(6) The suit and the application were strongly opposed. In opposition to the prayer for the grant of an interim injunction the case of the defendants was:

(A)by clause 7 of the lease-deed, the right to carry out structural additions or alterations including constructing a third bed-room had been given to the tenant and the plaintiff's had, thereforee, no right to build on the first floor till the expiry of the period of the lease, i.e. 11th September, 1981.

(B)if the plaintiffs are allowed to carry out the proposed construction, it will cause inconvenience to the defendant No. 1; and

(C)the right to possession of the premises given to a tenant includes the right to possession over the land appurtenant to the house and the owner cannot, thereforee, use it for storing materia,l in the process of construction.

The trial court held that clause 7 of the lease-deed conferred right on the tenant to carry out structural additions and alterations only and cannot be interpreted as prohibiting the owner to build a first floor on the premises, by doing so the owners do not intend to deprive the tenant of any part of the demised premises, the plea of the inconvenience was devoid of force as the use of the staircase for going on the first-floor, the user has not to pass through any room in the tenanted premises and no easementary right vests in the tenant in respect of the open-side around the house as easementary rights pertain to ownership. In conclusion, the learned trial court found a prirna- facie case in favor of the plaintiff. It held that if an interim injunction is not granted, irreparable loss would be caused to the plaintiffs and the balance of convenience was in favor of granting the injunction. The injunction was accordingly granted.

(7) In appeal, the appellants reiterated their contentions and also urged that (1) in view of Section 14(1)(e) of the Delhi Rent Control Act, the jurisdiction of the Civil Court was barred by Section 50 of the Act and (2) that the stairs leading to the first-floor can be reached only' by entering the demised premises and (3) the construction is desired to be carried out by plaintiff No, 2 who had no privity of contract with defendant No. 1.

(8) By the impugned order, Shri K. S. Gupta, Additional District Judge, Delhi held that Section 14(1)(g) is relevant only when eviction of the tenant is sought for carrying out construction and as the plaintiffs did not want to evict the tenant at all the said provision and consequently the bar of Section 50 is not attracted. The learned judge further held that plaintiff No. 1 having gifted half of the property to plaintiff No. 2 by a gift-deed dated 14th July, 1978, the latter had become part-owner and was entitled to carry out construction. As regards the plea of inconvenience, the learned first appellate court relied upon the report of the local commissioner appointed for the purpose to hold that the staircase to the first-floor is in the open space where the doors of some of the rooms open and that even though a bit of inconvenience is likely to be caused during the course of construction but 'that little amount of inconvenience............will not be a valid ground to refuse interim injunction prayed for to the plaintiff/respondent No. 2 who is a widow lady and wants to set up in Delhi Along with her only minor son'. In the result the order of the trial court was confirmed.

(9) Before me the main contention urged by Shri Arun Mohan, learned counsel for the Petitioner is that by the lease-deed the tenant had been given exclusive possession of the entire premises which must be deemed to include the land appurtenant to the main building as well as the roof of the building which is to be understood as a usable terrace. He urged that the construction of a first-floor by the respondents was never contemplated and would lead to deminution of tenancy.

(10) Does an owner of a property have the right to build on and develop the property when what is already built has been let out and is occupied by a tenant In my opinion the owners appears to be in the affirmative unless the owner has contracted away such a right in a Contract with the tenant. What is, thereforee, relevant to examine is whether the plaintiffs have contracted not to exercise such a right during the period of the tenancy as claimed by the petitioners.

(11) As this question is the basic question regarding decision in the suit which is pending as I do not wish to decide this question finally, here and now, all that I can say is that the prima facie finding of the two' courts below to the effect that the lease-deed does not spell out that the owners had agreed not to carry out the construction of the first-floor during the period of the tenancy suffers from no such infirmity as to give me the jurisdiction under Section 115 of the Code of Civil Procedure to interfere with it. In coming to this conclusion considerable assistance is available from (i) the various provisions of the lease-deed which carved out and conferred a role of decisive importance on petitioner No. 2, father-in-law of petitioner No. 1 and a relation of the respondents. The position assigned to him was in the nature of a sole arbiter and he could surely speak for the parties and more so for petitioner No. 1 and from his letter dated 7th February. 1977, written soon after the lease-deed was executed to the Chairman, Panchsheel Cooperative House Building Society Ltd. asking the Society to transfer rights in respect of the first floor of the premises in favor of Shrimati Mohini Puri, respondent No. 2 to enable her to construct the first floor.

(12) I am not dilating upon this and other propositions of law and facts at this stage lest it may foreclose or affect a decision on them after trial but I have no hesitation in holding that the impugned order is valid and proper and cannot be interfered with under Section 115 of the Code of Civil Procedure. The revision petition is dismissed with costs: Counsel's fee Rs. 300.00 .


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