ORDER

% 26.02.2024

1. This hearing has been done through hybrid mode.

I.A. 16964/2022 (u/O VII Rule 11 CPC) in CS(OS) 397/2022

2. After some hearing, Mr. Lall, ld. Senior Counsel under instructions submits that he would like to withdraw the application under Order VII Rule 11 subject to issues being framed in respect of the grounds raised in the said Order VII Rule 11 application. Accordingly, the following issues are framed:

i) Whether the Defendant No.1 was given any rights in the suit property except qua the first floor and if so, to what extent and what effect by the two gift deeds dated 25th October, 1976 and 1st November, 1995? OPD ii) Whether the suit has been properly valued and proper court fee has been paid? OPD iii) Whether the suit is barred by limitation? OPD

3. The undertaking of the Plaintiff is recorded to the effect that if the Court finds that further court fee is required to be paid, the same shall be paid as per directions that may be issued.

I.A. 7100/2023 (for delay) in CS(OS) 397/2022

4. This is an application filed by the Defendant No.5-Municipal Corporation of Delhi seeking condonation of delay in filing the written statement.

5. The MCD has filed its written statement. However, after considering the nature of the pleading filed by the MCD, and after seeing the written statement, it is recorded that the stand of the MCD shall be considered as an affidavit on behalf of the MCD and not as the written statement. Inasmuch as most of the paragraphs in the plaint have not even been replied to by the MCD and the MCD has merely stated certain facts in respect of the suit property.

6. Application is disposed of in these terms.

I.A. 10467/2022 (for stay) & I.A. 16075/2022 (u/O XXXIX Rule 4 CPC)

7. These are two applications filed by Plaintiffs and Defendants respectively.

I.A. 10467/2022 (for stay) has been filed by the Plaintiffs seeking injunction against Defendant Nos. 1 to 4 from creating any third party interest in house bearing no. W-155, Greater Kailash- I, New Delhi - 110048 (hereinafter referred as the ‘suit property’) as also restraining them from effecting any modification in the suit property.

8. Vide order dated 12th July, 2022 the Defendants were restrained from creating any construction in the common areas of the suit properties, including the driveway and the staircase landing and was directed to maintain status quo regarding title and possession. The relevant portion of the said order is set out below:

“17. Prima facie case is made out on behalf of the plaintiff. Consequently, till the next date of hearing, status quo with regard to the title and possession shall be maintained in respect of the suit property.

Defendants are restrained from carrying out any construction in the common areas of the suit properties, including the driveway and the staircase landing.”

9. Thereafter an application i.e., I.A. 16075/2022 under Order XXXIX Rule 4 CPC, 1908, was filed by Defendants. Pursuant to this an interim order dated 28th September, 2022, was passed which clarified that the Defendants can carry out repair works in driveway and will provide access to the Plaintiffs and their representatives in the utility area. The same is recorded in paragraphs 5 and 6 of the order which reads as under:

“xxx xxx xxx not come in the way of defendants carrying out repair works in the driveway, including works undertaken for installation of CCTV cameras.

submits that the driveway in question belongs to the defendants. It is stated that the defendants have no intention to raise any construction thereon. He further submits that he has no objection to access being provided to the plaintiffs and their representatives to the utility area located in the driveway such as the water and electricity connections.”

10. After hearing parties today, it is made clear that the Plaintiffs shall be provided access at all times to the utility areas, water and electricity connections as also water tanks on the top of the building. No