Usha v. Babu Lal & ANR

$~35 *

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 805/2016 and CM Nos. 30327-28/2016 USHA .... Petitioner Through Mr.Shreyans Singhvi & Ms.Ekta Mehta, Advocates versus BABU LAL & ANR ..... Respondents Through None.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

O R D E R

% 22.08.2016 1.

By the present petition, the petitioner seeks to impugn the order dated 15.03.2016 whereby the appellate court had passed an order of injunction against the petitioner granting to the plaintiffs/respondents right to free access to the terrace of the 4th floor as prayed and also stating that the respondents/plaintiffs are free to get any debris, if any, removed from the top floor.

2.

The learned counsel for the petitioner submits that the reliefs sought by the respondents in the application under Order XXXIX Rules 1 and 2 CPC are akin to the reliefs sought in the suit and by allowing the present application the appellate court had in fact decreed the suit. He further submits that his application under Order VII Rule 11 CPC is pending and the court without adjudicating upon the same, first decided the application under Order XXXIX Rules 1 and 2 filed by the respondents. 3.

So far as the injunction against the petitioner is concerned, a perusal CM(M) 805/2016

of the plaint filed by the respondents shows that they have sought decree of permanent injunction to restrain the defendant/petitioner from dispossessing and preventing the respondents from the terrace of the 4th floor of the property in question and also not to cause any hindrance/obstructions to the free passage for the respondents and their family members. 4.

By the present injunction order, no order was passed restraining the petitioners from dispossessing and preventing the respondents from the suit property. The suit is yet to be adjudicated upon. The learned counsel for the petitioner admitted that the terrace is common and both the parties have access to the same. Order of the appellate court merely reaffirms the same contention that the respondents have right to free access to the terrace of the 4th floor and also to get any debris, if any, removed from the top floor. 5.

There is no merit in the present petition and the same is dismissed. 6.

So far as the pendency of the application under Order VII Rule 11 CPC filed by the petitioner is concerned, the petitioner is at liberty to request the trial court to expeditiously dispose of the same. JAYANT NATH, J.

AUGUST 22, 2016/v CM(M) 805/2016