ORDER
Mohd. Shamim, J.
1. This is an application by the plaintiff under Order 39 Rule 4 and Section 151 of the Code of Civil Procedure for vacating the order dated May 20, 1994 passed on I.A. Nos. 2164, 5144 and 6052 of 1990.
2. Brief facts which gave rise to the present application are as under: that the plaintiffs herein filed a suit bearing No. 2104/90 for declaration and permanent injunction, inter alia,to declare that the defendants herein or any other person who has derived right, title and interest through them are not entitled to the use of the common passage in the premises bearing Nos. 7/1 and 7/2, Lancer Road, B.D.Estate, Delhi.
Shri Khushal Chand Jain, predecessor-in-interest of the applicant herein was in occupation of the ground floor of the premises bearing No. 7/2, Lancer Road,B.D.Estate, Delhi, at the time of the institution of the suit. Defendant No.1, Shri Khushal Chand Jain during the pendency of the aforesaid suit sold the said ground floor portion in his occupation to the applicant herein ( Shri Rajinder Kumar Gadodia) vide sale deed dated September 20, 1993. There is a mention in the said sale deed that there is a common passage and the same will remain open for the use of the occupants.
Shri Khushal Chand Jain in collusion with the plaintiffs moved an application, being I.A. No.2146 of 1994, for modification of the order dated July 17, 1990 which was allowed vide the impugned order dated May 20, 1994. Shri Khushal Chand Jain thus played a fraud on the Court inasmuch as it was not brought to the notice of the Court that he had already sold the ground floor to the applicant herein vide sale deed dated September 20, 1993 with a clear stipulation therein that the 10 ft. wide disputed passage was the common passage meant for the use of all. Hence the installation of a gate in the middle of the common passage would cause hindrance and interference in the right of the applicant to use the said common passage. After having secured the said order the plaintiffs installed a gate on July 29, 1994 in the common passage. The plaintiffs and defendant No.1 in collusion with one another surreptitiously obtained the impugned order by playing fraud upon the Court. With the installation of the said gate in the middle of the common passage the applicant is not in a position to enter his premises through the said common passage. He can now enter only through the service lane. He is also unable to park his car in the common passage because the service lane is, too, narrow for parking of the car. It has therefore, been
prayed that the impugned order dated May 20, 1994 which was passed at the back of the applicant be set aside.
3. The plaintiffs have opposed the application, inter alia, on the following grounds: that much before the purchase of the premises bearing No. 7/2, Lancer Road, B.D.Estate, Delhi, by the applicant herein from Shri Khushal Chand Jain the order dated July 16, 1990 was passed by the Court whereby defendant No.1 was restrained from parking or driving his vehicles in the common passage marked Z to Z1 shown in green colour in the plan. Thus it is false and preposterous to allege that the order dated May 20, 1994 was secured by practicing fraud on the Court. The applicant herein has all along been complying with and following the said order till he moved the present application before the Court without any demur and protest. The plaintiffs are the exclusive owners of the alleged common passage though the applicant has been permitted to use the said common passage. The garages of the applicant are on the rear side of the property in his occupation. Thus he can use the rear side road for ingress and egress to the premises in his occupation. His balcony and lawn are also facing the rear side of the road. The application is false and frivolous and is liable to be dismissed.
4. I have heard the learned counsel for the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thoughts thereto.
5. It is not in dispute and there is no gainsaying the fact that the impugned order dated May 20, 1994 was passed at the back of the applicant. The applicant purchased the premises in his occupation from Khushal Chand Jain, defendant No.1, on September 20, 1993. Thus Shri Khushal Chand Jain at the time when he obtained the impugned consent order dated May 20, 1994 was none to give his consent to the passing of the impugned order inasmuch as he had already sold and disposed of the premises in his occupation to the applicant herein. It is a well settled principle of Jurisprudence that nobody can be condemned unheard. ‘Audi alteram partem’ is the fundamental principle of jurisprudence which no Court can afford to deviate from. In case it is departed from in that eventuality the entire system of justice would be reduced to a mockery.
6. Learned counsel for the plaintiff has contended that the applicant must have known with regard to the pendency of the suit. Hence he should have moved an application to join the proceedings at his earliest possible opportunity, but for the reasons best known to him he did not raise even a tiny finger of protest and continued to abide by the impugned order. Hence he has to drink as he has brewed. It is now, too, late in the day for him to object to the said order.
7. I am sorry I am unable to agree with the contention of the learned counsel for the plaintiffs. There is absolutely nothing on record to show and prove that the applicant herein was aware of the proceedings pending before this Court. Admittedly no notice was issued to the applicant from the side of the Court.
8. The next contention raised by learned counsel for the plaintiffs is that the plaintiffs are the exclusive owners of the common passage. Hence no other person has got any right to use the same for driving the vehicles through the said common passage. Of course, others, including the applicant, can use the same for ingress and egress on foot. Curiously enough on being asked with regard to proof of ownership learned counsel for the plaintiffs miserably failed to show that the plaintiffs are the exclusive owners of the common passage.
9. Learned counsel for the applicant on the other hand has led me through quite a good number of documents which go to show that the disputed passage is not the exclusive property of anyone. In this connection, reference with profit can be made to the judgment and order dated January 8, 1975 in Suit No. 446 of 1974, in between the predecessors-in-interest of the parties to the present proceedings. There is a mention therein that the disputed passage which is 10′ wide has been left on either side of the building for the common use of the parties.
10. Then there is a sale deed dated March 15, 1989 executed by Smt. Prakash Wati in favour of the plaintiff Shri Subhash Aggarwal. It also goes to show in unequivocal terms that there is a 10′ wide portion of the land and the same is to be kept as common passage for access not only to the portion of the vendor but also for access to the residential portion of the building on the rear side of the said plot. To the same effect there is a recital in another sale deed in favour of plaintiff No.2 Smt. Rashmi Aggarwal dated February 21, 1990.
11. Learned counsel has then referred to a sale deed dated February 17, 1989 in favour of Shri Rohit Aggarwal. It also talks of 10′ wide common passage. Learned counsel has also led me through the sale deed in favour of the present applicant dated September 20, 1993 executed by defendant No.1. There is also a reference in the said sale deed that a 10′ wide portion of the land would be kept as a common passage for access to the residential portion of the building on the rear side of the plot belonging to Shri Khushal Chand Jain. Admittedly, Shri Khushal Chand Jain is the predecessor-
in-interest of the applicant herein. Thus there is ample evidence to prima facie show and prove that the impugned passage is a common passage and is not meant for the exclusive use of the plaintiffs.
12. Learned counsel for the plaintiffs has then contended that the applicant can use the road on the rear side which leads to the garages in occupation and possession of the applicant for ingress and egress to his premises. Learned counsel for the applicant while countervailing the said argument has contended that the said road is nothing but a service lane and the said road is not as wide as the road in the front i.e., on the side of the plaintiffs. Hence the same cannot be used for driving the vehicles. The learned counsel in this connection has shown me the lay-out plan of
B.D.Estate, Delhi. A perusal of the same reveals that it is nothing but a service lane.
13. In the circumstances stated above the applicant is entitled to succeed. The application is allowed. The impugned order dated May 20, 1994 is hereby set aside. The plaintiffs are hereby directed to remove the iron gate installed in the middle of common passage.
