S. RAVINDRA BHAT

1. This common judgment will dispose of two connected appeals, i.e FAO No. 367/2013, (where the defendant complains that the application for rejection of the respondent’s plaint in the suit - I.A. No. 5932/2013 in CS (OS) 3559/2012- was wrongly dismissed) and FAO(OS) 420/2013, (where the ad-interim injunction claimed in I.A. No. 1035/2013 in the said suit was granted). The application for rejection of plaint was dismissed by order dated 08.07.2013 and the temporary injunction was granted by an order dated 06.08.2013.

2. The factual matrix within which the present dispute arises is as follows. Since 1948, one Shri Chaman Lal, and his brother, Shri Swaran Lal’s family had been living at 12, Kasturba Gandhi Marg, New Delhi (hereafter the demised premises) as tenants. After the latter’s death, his family members continued in possession of the premises and his widow, the respondent in the present matter has been paying rent to the landlord. Subsequently even after Shri Chaman Lal moved away, and his children were married, the plaintiff continued to reside in the demised premises. In December 2012, the premises were sold by the erstwhile owners to the appellants. The plaintiff alleged that on 14.12.2012, the appellants put up an iron gate at the opening of the passage leading to the demised premises, thereby obstructing her passage to the premises by car and parking the same in the open space adjacent to the demised premises. The defendant/appellants argued that the plaintiff had in no way been denied access or impeded in her approach to the demised premises; only that she cannot access the premises by car and/or park her car in the open space.

3. These developments impelled the plaintiff to file CS (OS) 3559/2012 for a permanent injunction against the appellants restraining them from interfering, in any manner, with the ingress and egress to – and those of her family members, relatives and friends -the premises under her occupation and parking her vehicle in front of/or near the entrance of the premises in the open space as detailed in the plaint. The primary contention of the respondent plaintiff in this regard is that her right to park is a right of easement by prescription by virtue of Section 15 of the Indian Easements Act, 1882 [hereafter “the Act”]. To this effect she filed an I.A. No. 1035/13, seeking an interim injunction that would have the same effect, i.e. restrain the respondents from interfering with her right to park in front of the demised premises.

4. Refuting the plaintiff’s alleged right of easement over the open space, the appellant/ defendants filed I.A. No. 5932/13 seeking rejection of the plaint on two grounds (1) that the plaint did not disclose a cause of action and (2) that the reliefs prayed for in the suit are barred by law. The learned Single Judge by order dated 08.07.2013 dismissed the application for rejection of the plaint. He held that from the averments in the plaint, it cannot be said that the plaint discloses no cause of action or that the suit is barred on the aforesaid averments under any law. He agreed with the contention of the learned senior counsel for the plaintiff that the question whether the plaintiff has been parking outside the premises in her occupation as a matter of right and under the terms of the lease between her predecessors-in-interest and the erstwhile owners/landlords or not, shall be decided after the trial during which both sides shall be given the opportunity to lead evidence in support of their respective stands. The learned Single Judge further observed that a bare reading of the plaint does not show that the plaintiff is claiming a decree of injunction simply on the ground that she has acquired an easementary right of parking her car outside the premises under her occupation as a tenant. That is an alternative plea and whether or not she would succeed on that plea is also a matter to be decided after trial. By virtue of order dated 06.08.201