Devender Kumar Sharma v. Santosh & Ors.

1. This petition under Article 227 of the Constitution of India impugns the order of the first appellate court dated 1.3.2012 by which the first appellate court has dismissed the first appeal both on the ground of nonmaintainability as also on merits. The order of the trial court is dated 11.1.2012 by which an application of the petitioner/plaintiff seeking permission to replace two doors in the disputed shop and for obtaining an electricity connection, was dismissed. 2014:DHC:4921

2. Since the trial court has dismissed an application filed by the petitioner/plaintiff under Section 151 CPC, at the request made on behalf of the petitioner, this petition is taken as a petition challenging the order passed by the trial court dated 11.1.2012 as first appeal did not lie from the order dated 11.1.2012 passed by the trial court.

3. As already stated above, the impugned order dated 11.1.2012 dismissed an application filed by the petitioner/plaintiff in which two reliefs were sought. First relief was that the petitioner/plaintiff should be allowed to change/replace two doors with respect to the shop in his possession and seeking injunction with respect to which shop the subject suit was filed that petitioner/plaintiff should not be dispossessed without due process of law, and the second relief was that plaintiff should be allowed to install an electricity connection. These are the two aspects to be decided in this petition.

4. Admittedly, the entire property, including the suit shop, is the joint property of the plaintiff and the defendants. Whereas petitioner/plaintiff says that he is in possession of one shop, and the defendants are stated to be in possession of the two other shops in the same property. There is already an order of status quo by the trial court, ie the possession of the respective parties has been ordered to be protected and therefore the possession of the petitioner/plaintiff in the suit shop is protected. I may hasten to clarify that though the counsel for the respondents/defendants admits that the petitioner/plaintiff is in possession of the shop, however it is stated that a contempt petition has been filed because petitioner/plaintiff was not in exclusive possession of the shop and that the shop was in possession of both the plaintiff/petitioner and defendant no.1/respondent no.1 herein but the petitioner/plaintiff has illegally taken sole possession of the shop. This aspect however is disputed by the petitioner/plaintiff, and therefore, as regards the aspect as to whether or not petitioner/plaintiff was in exclusive possession of the shop, I do not express finally one way or the other and this aspect will be decided in the contempt petition as also in the suit which is pending in the trial court, however, since the petitioner/plaintiff presently is in possession of the suit shop, replacing of the doors will not in any manner prejudice any of the parties to the suit. Surely, every co-owner, petitioner/plaintiff being a co-owner, is entitled to enjoy the portion in his possession and therefore there is no prejudice to the respondents/defendants in case doors of the shop are allowed to be replaced.

5. Learned counsel for the respondents argued that suit is only a suit for injunction against dispossession and therefore reliefs which are beyond the scope of the suit cannot be granted, however I do not agree with the counsel for the respondents because entitlement to possession includes all aspects incidental to possession i.e of effectively protecting the possession, including the enjoyment of the possession by changing or replacing of doors as also installing of electricity in the suit premises and which issues are very much within the scope of the protection of the possession of the suit shop by the petitioner/plaintiff/co-owner.

6. In view of the above, the impugned order dated 11.2.2012 is set aside. Application of the petitioner/plaintiff under Section 151 CPC will be allowed. Petitioner/plaintiff is entitled to replace the doors however he will ensure that he will not do any other work except replacing the existing doors with the new doors and he will ensure that no structual damage is caused to the premises. Respondents/defendants are restrained from in any manner interfering with the activity of the petitioner/plaintiff with respect to replacing of the doors. Petitioner/plaintiff is also entitled to install an electricity connection in the suit shop, of course in accordance with law, and for this purpose he will be entitled to approach the Local Electricity Authority/Electricity Distribution Company and which will give an electricity connection in accordance with law.

7. The petition is allowed and disposed of in terms of the aforesaid observations, leaving the parties to bear their own costs.

SEPTEMBER 23, 2014 VALMIKI J. MEHTA, J. ib