Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 29 CS SCJ 926/23 JATIN SEGHAL Vs. BALBIR KAUR
MANN
22.01.2025
Present: Ms. Jyoti Gulati and Ms. Isha Ld. Counsels for
plaintiff.
Ms. Shivani, Ld. Counsel for defendant/MCD
through VC.
Sh. Kumar Shushobhan, Ld. Counsel for defendants
through VC.
An application U/o 7 rule 11 CPC is pending
disposal.
It is submitted by Ld. Counsel for defendants that
the plaintiff had no cause of action as the gates of the society were
closed by the RWA with the consent of all the members and
security guards were deputed to open the gate any time of
emergency. It is further submitted that the suit of the plaintiff is
not maintainable as provisions of Sec.91 CPC have not been
complied.
In counter, Ld. Counsel for plaintiff has argued that
the present suit has been filed by the plaintiff seeking the relief of
mandatory injunction to remove the gates installed as the RWA
had not obtained any permission from the authorities and closing
the gates cause hardships to the plaintiff. It is argued that the
plaintiff has not filed a suit for nuisance and as such requirement
of Sec.91 CPC are not required to be fulfilled.
Submissions heard. Record perused.
It is settled position of law that for deciding an
application U/o 7 rule 11 CPC, only the contents of the plaint are
to be seen. In the instant case, the plaintiff has asserted himself to
be a resident of Citizen Welfare Society, Mukherjee Nagar, Delhi
and it is the grievance of the plaintiff that the defendant No.1-5,
Contd….2/-
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(2)
who are the officiating members of RWA of the society are
deliberately keeping the gates closed which were installed
without any authority/permission from the concerned authorities.
In the considered opinion of this court, the plaint of the plaintiff
cannot be rejected at this stage, as the same prima-facie discloses
a cause of action with respect to the infringment of the right of the
plaintiff of accessing his property and move out from the same
without restriction. The application U/o 7 rule 11 CPC
accordingly, stands dismissed.
Ld. Counsel for plaintiff has also pressed the
application U/o 39 rule 1 and 2 CPC thereby seeking a prayer that
defendant no.1-5 be directed to keep all the gates of the society
open with specific time. Though, no reply to the said application
was filed, it was submitted by defendant no.1 as well as the Ld.
Counsel for defendant no.1-5 that the gates are kept open during
the day time and are only closed from 11:00pm to 6:00am for
security reasons and during that time the keys of the gates remain
with the security guards and the gates can be open in the case of
emergency.
Submissions heard.
In the considered opinion of this court, a prima-
facie case exists in favour of the plaintiff in view of the report/WS
filed by MCD as per which the gates were installed without
seeking permission from the authorities. It is argued on behalf of
defendants that requisites permissions have been applied and the
same may be granted in coming days. Be that as it may, as on
date, there is no requisite permission with respect to the gates
installed in the society and there can be no denial that every
resident of the society is entitled to enter and move out of the
society without any restriction at reasonable hours and the
Contd…..3/-
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(3)
security of the society and the other residents cannot be
countenanced. With respect to the relief claimed in the
application, the court is of the view that the balance of
convienience lies in favour of the plaintiff and irreparable injury
would be caused to the plaintiff if the said prayer is not allowed.
Accordingly, the application of the plaintiff U/o 39 rule 1 and 2
CPC is allowed with the following directions:
a. The defendant no.1-5 i.e. Officiating Members of RWA
shall ensure that all the gates shall remain open from 6:00am to
11:00pm.
b. The defendant no.1-5 shall ensure that in the case of
emergency, the keys of the gates shall remain with the security
guard for opening the gates from 11:00pm to 6:00am.
c. The defendants no.1-5 are further directed to ensure the
aforesaid timings and the fact mentioned in (b) with emergency
contact number of the concerned person be mentioned on the
gates of the society.
Defendants no.1-5 are directed to file WS within 20
days from today with advance copy to opposite party.
Be put up for completion of pleadings/further
proceedings on 15.05.2025.
(Nitish Kumar Sharma)
JSCC/ASCJ/GUDN. JUDGE
North Rohini, Courts,Delhi/22.01.2025
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