Bhagwandas Hargobind Chorasia vs Kanaiyalal Lilaram and Another

P.S. Patanakar, J.—The respondent herein filed suit and took out Notice of Motion for interim reliefs for direction to remove the door constructed by the appellant in the common passage, which leads to the common washing place and common W.C. on the 1st floor and as described in the plaint annexed at Ex. A, to the plaint and for temporary injunction restraining the appellant from preventing or obstructing the respondent from passing and re-passing through the common passage and thereby not to obstruct the respondents from using the said common washing place and common W.C. The court below directed the appellant to keep open the said door and not to obstruct the respondents from using those common facilities. The said order is under challenge in this A.O.

The respondent No. 1 is the owner of the structure and occupies Room No. 11 on the 1st floor and Respondent No. 2 is a tenant on the 1st floor of Room No. 12. The appellant is a tenant of one Room No. 13. It is the chawl like structure and there are common facilities of washing place and toilet on each floor which are situated in the common passage. The room of the appellant is in corner and the common facilities are located in front of his room.

It is the case of the respondents that all of a sudden in the month of March, 1984, appellant put up a door in such a manner so as to convert those common facilities of washing place and toilet for his exclusive use. Because of putting of the said door the Respondent No. 2 and his family members were deprived from using those common facilities. The Respondent No. 2 complained about this to Respondent No. 1 as landlord. It was pointed out that Respondent No. 1 has got toilet and bath room constructed in his room. But the Respondent No. 2 was deprived of this and so Respondent No. 1 asked the appellant about this who stated that door has been put up as repair work was going on and such his friend, whose building has collapsed, put up some articles in the common passage and door was temporarily put up. The appellant promised to remove the same as soon as repair work was over. The building and the common facilities were repaired in June,1984 and then Respondent No. 1 asked the appellant to remove the said door, the appellant started avoiding and declined inspite of request made by the Respondent No. 1 from time to time. This forced the Respondent No. 1 to give notice to the appellant and also the Municipal Corporation pointing out the unauthorised work done by the appellant. The appellant sent a reply claiming exclusive right to use those facilities. It was alleged that the Respondent No. 2 having a room on the ground floor and can use the common facilities which are situated on the ground floor. The respondents pointed out that there is a small room admeasuring 6'' x 2-1/2'' under the stair-case on the ground floor which is used by the Respondent No. 2 as a store room/sleeping or sitting room during the day time. It was pointed out that all the family members of the Respondent No. 2 used the common facilities on the first floor throughout and they are seriously handicapped and the reply given by the appellant was false. This required the respondents to file suit and take out Notice of Motion for interim reliefs.

The appellant filed reply and inter alia alleged mala fides on the part of the Respondent No. 1 as he has already filed a suit for eviction against him. It was further contended that the said common door has been fixed for long time and not put up recently and he was in exclusive and continuous use of those facilities and Respondent No. 2 has never used them. It was further contended that the Respondent No. 2 is having a room on the ground floor and can use the common facilities available on the ground floor.

The learned Judge of the trial Court considered the affidavits filed on behalf of the parties and the documents and found that prima face the respondents have; shown that the door has been put up by the appellant recently and the balance of convenience in their favour. As Respondent No. 2 was not having any residential room on the ground floor and the Respondent No. 2 and his family members were deprived of using those common facilities.

There is no dispute on the fact that the building is like chawl and each floor is having common facilities of bath room and toilet at the end of each floor and they are clearly meant for the occupants of those floors. It is also clear that the Respondent No. 2 is not having residential room on the ground floor and the learned Advocate for the appellant conceded that there is nothing to show at this stage that there is any such residential room, it is also not the case of the appellant that area on which these common facilities are situated has been leased out to him or forming part of lease agreement. Therefore, these common facilities are meant for all the occupants of the floor occupied by them and in this case first floor. The Respondent No 1, who is the landlord, got for himself those every day facilities constructed for himself in the premises occupied by him but no such facilities, are admittedly available for the Respondent No 2 and his family members on the first floor. They cannot be forced to go down and to share the common facilities available on the ground floor alongwith other occupants of the ground floor. Prima facie it can be accepted that it will be highly in convenient not only for the Respondent No 2 but also for occupants of ground floor. Further, the very purpose of providing such facilities on each floor shall be defeated. If the Respondent No. 2 is required to go down for those purposes. The appellant has miserably failed to show that these facilities were meant exclusively for him or he was so using for a long time. It is also not possible to accept that the Respondent No. 2 is having a residential room on the 1st floor. The appellant could not substantiate this case in any manner. This was the case for the first time now tried to be put forward by the appellant. He has not so stated in reply, dated 15.1.1995 sent to the notice issued by the Respondent No. 1 In the reply the straightaway denied that these facilities were in the common passage and stated that the door was in existence for a long time and those facilities were used by him exclusively. Similarly, if the facilities on ground floor arc admittedly common, then similar facilities on the first floor can safely be presumed to be common

Merely, because the Respondent No. 1 has filed the suit against the appellant for eviction cannot mean that the claim made by the respondents is false or mala fide or the claim of the appellant is true and bona fide. The appellant has filed the affidavit of one Vinod Chandra, relation of processor-in-title of Respondent No. 1 in support of his case to show that the Respondent No. 2 was using the common facilities on the ground floor. But the respondents filed affidavit of one Vilaswati, precessor-in-title, who stated that her family was occupying Room No. 11 and at that time Respondent NO. 2 was using the common facilities situated on the first floor. Prima facie there is no reason for discarding this affidavit as she was the owner of the premises.

The learned Advocate for the appellant contended that atleast mandatory order of keeping open the door ought not to have granted by the learned Judge. In my opinion, the learned Judge did not grant the prayer of removal of the door, but given a mandatory direction to keep open the door. It is highly just and proper direction meant to subserve the ends of justice in the facts and circumstances of the case, Prima facie there is no reason to deprive the Respondent No. 2, who is also a tenant as the appellant, from using common and essential day to day facilities. The Respondent No. 2 is bound to suffer seriously if the door is kept close and hence the direction given in his favour is quite just. The learned Judge is right in passing the order.

The appeal is, therefore, without any merit. The same is summarily dismissed.