The High Court should respect the discretionary powers of lower courts under Article 227, intervening only when there is clear perversity in the decisions made.

JUDGMENT

1. This petition, under Article 227 of the Constitution of India, challenges order dated 27th July 2022, passed by the learned Additional District Judge ("the learned ADJ") in MCA DJ/12/2021 (Nilofar Khan & Ors. v. Ghulam Sarwar & Anr.).

2. The proceedings emanate out of a suit bearing No. CS SCJ 492/2020 instituted by the respondents, as the plaintiffs, against the petitioner and other defendants.

3. The parties to the suit were occupants of different areas of the property located at C-187, Abul Fazal Enclave, Part-2, Shaheen Bagh, Jamia Nagar, New Delhi ("the suit property").

4. The respondents, as the plaintiffs in the suit, complained that the petitioner had installed a locked iron gate on the terrace of the fourth floor, thereby restraining access of the respondent to the terrace.

5. As such, the suit sought a decree of permanent and mandatory injunction in favour of the respondents and against the petitioner and other defendants in the suit, restraining the petitioner and other defendants from interfering with the access, by the respondents, to the suit property, creating third party interest in respect of the suit property or from restraining access, by the respondent, to the rooftop of the suit property.

6. A decree of mandatory injunction, directing the petitioner to forthwith remove the iron grills installed above the fourth floor of the staircase, which prevented access, by the respondent, to the rooftop and the terrace, was also sought.

7. The suit was accompanied by an application under Order XXXIX Rules 1 and 2 of the CPC, seeking an ad interim injunction in favour of the respondents and against the petitioner, restraining the petitioner from illegally and forcefully fixing iron grills on the passage to the rooftop and for a direction to the petitioner to remove the said grills and permit access, by the respondents, to the rooftop of the suit property.

8. By order dated 15th March 2021, the learned Senior Civil Judge ("the learned SCJ") disposed of the application of the respondents under Order XXXIX Rules 1 and 2 of the CPC.

9. On a prima facie examination of the evidence before him, the learned SCJ upheld the right of the respondents to access to terrace for the purpose of use of common amenities such as fixation of antenna, water connection, electricity connection etc.

10. As such, it was held that, while no interim direction restraining the petitioner and other defendants from parting possession with the suit property or any portion thereof could be granted, the respondents did have a right to access the terrace for the aforesaid limited purposes. In view thereof, the learned SCJ held that it was expedient in the interests of justice that the respondents "be given the right to access the terrace on reasonable hours, as and when the need arises, between 09.00 a.m. and 05.00 p.m. (when defendant no.1) (the present petitioner), shall provide the keys of the terrace for the purposes of fixing antenna, sewer connection, water connection, electricity etc. as specifically mentioned in the GPA of the plaintiff (i.e. the present respondent)".

11. For this purpose, the respondents were also required to intimate the petitioner, at least one hour in advance.

12. Aggrieved by this order, the respondent appealed to the learned ADJ vide MCA DJ/12/2021 (Nilofar Khan & Ors. v. Ghulam Sarwar & Anr.), in which the impugned order has come to be passed by the learned ADJ on 27th July 2022.

13. The learned ADJ has held, in the impugned order, that, once the learned SCJ has recognised the right of the respondents to have access to the terrace