Najmi Waziri, J.

1. By this petition filed under Article 227 of the Constitution of India, the petitioner impugns an order dated 5.11.2012 passed in an appeal, which resultantly set aside the order dated 1.8.2012 passed by the learned Civil Judge.

2. The case of the petitioner is that the respondent/plaintiff had filed a civil suit seeking reliefs of mandatory and permanent injunction as well as compensation/damages of Rs.1.85 lacs from the petitioner/defendant. The respondent/plaintiff is the exclusive and absolute owner of the third floor of property bearing No.C-10/8B, Krishna Nagar, Delhi-110051 on the basis of a Sale Deed dated 29.6.2011, executed in his favour by the petitioner. The respondent/plaintiff had contended that he was illegally deprived of the use and facility of the lift installed in the aforesaid property and had sought a direction against the present petitioner (defendant) to allow the plaintiff and his family members to use the lift without any hindrance or obstacle. In his written statement (WS), the petitioner/defendant had stated that the suit was not maintainable since the Sale Deed conveying the third floor flat to the plaintiff/respondent did not include the use and facility of the lift installed in the building. It was also contended that the plaintiff was yet to pay an amount of Rs.1,84,982/-, which had been attempted to be paid by the plaintiff through a post dated cheque of Rs.2.00 lacs as the balance sale consideration but upon presentation of the cheque, the same got dishonoured on account of insufficiency of funds in the account of the respondent. It was stated that the petitioner had initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881 much prior to the filing of the suit and the said proceedings are pending before the Metropolitan Magistrate, Karkardooma Courts, Delhi.

3. Regarding the plaintiff’s application for interim relief under Order XXXIX, Rules 1 & 2 of the CPC in which relief nos. 2 and 3 were not pressed, the Trial Court was of the view that in the Sale Deed, there was no mention of the lift or of it being classified as a common facility, therefore it would be a matter of trial as to whether the plaintiff had paid the cost of lift along with sale consideration to the petitioner (defendant). On appeal against the said order, the Appellate Court set aside the order of the Trial Court and directed the petitioner/defendant by way of a mandatory injunction to provide use and occupation of the lift in the suit premises. The Trial Court had held as under:

“It is clear from above mentioned para that there is no mentioning of lift for common use for the plaintiff in the building. Further, it is a matter of trial whether plaintiff paid the cost of the life along with the sale consideration of the flat to the defendant or not. Further it is also admitted by the plaintiff in his plaint that the other occupants of flats in the same building are also facing same problem as defendant is also not permitting them to use lift. In view of above discussion, it is clear that lift is installed by the defendant for his own benefit and not for the occupants/residents of the flats in the building as neither plaintiff nor the other residents of building are using the lift.”

4. The Appellate Court was of the view that common area was provided to the plaintiff and it was so mentioned in the Sale Deed under Clause 8 thereof, which reads as under:

“That the common area such as passage, entrance, stairs, one car parking and one scooter, right to install/repair water tank on roof of top floor and all common facilities/amenities attached to the said property shall be used and properly maintained in common by all occupants of the aforesaid property and shall not be misused by any of the occupants of the building/property, together with undivided proportionate share in the land.”

5. The Appellate Court reasoned that:

“all common amenities/facilities were to be used jointly. Amenity means s