Delhi District Court
Sh. Daya Chand vs Sh. Desh Raj on 28 September, 2011
IN THE COURT OF MS. NEHA : CIVIL JUDGE - 03
SAKET COURTS COMPLEX : NEW DELHI
Suit no. 500/2010
Unique ID no. 02406C0474952010
IN THE MATTER OF:
Sh. Daya Chand, S/o Sh. Anoop Singh,
R/o 88/2, Village Masjid Moth,
Near South Extn. Part II, New Delhi. ...... Plaintiff
Versus
1. Sh. Desh Raj, S/o Not known
R/o H. No. 88, Village Masjid Moth
Near South Extn. Part - II,New Delhi
2. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk
Delhi - 110006. .... Defendants
DATE OF INSTITUTION : 16.10.2004
DATE OF RESERVING THE ORDER : 17.09.2011
DATE OF DECISION : 28.09.2011
C.S. No.500/10 Daya Chand Vs. Desh Raj 1 of 17
JUDGMENT
1. Vide this judgment I shall decide the suit of the plaintiff seeking relief of permanent and mandatory injunction along with cost of the suit.
2. The facts in brief as per the plaint are as under: The plaintiff is owner and in possession of property bearing no. 88/02 forming part of Khasra no. 429 in the village of Masjid Moth, New Delhi. The defendant no.1 is the owner of the neighbouring property bearing no. 88/02 forming part of Khasra no. 429 measuring about 35 Sq. yards. The defendant no.1 had started construction in his property by digging the property all around as well as adjacent to the property of the plaintiff. The illegal digging and demolishing the old construction is going to endanger the stability and firmness of the property of the plaintiff. The plaintiff objected to the illegal acts of defendant no. 1 and asked the defendant no. 1 not to take up illegal construction which would endanger the property of the plaintiff. The defendant no.2 being the governing body has kept its eyes closed towards the illegal act of defendant no. 1.
3. On 25.09.2004 despite objection by the plaintiff the defendant C.S. No.500/10 Daya Chand Vs. Desh Raj 2 of 17 no. 1 started illegal construction on the suit property. The plaintiff lodged complaint with the police to stop the illegal construction. The plaintiff also approached the officials of defendant no.2 on 29.09.2004 and complained against the illegal construction done by defendant no.
1. However no action has been taken as yet. Hence, the plaintiff has filed the present suit. The plaintiff has filed the present suit seeking permanent injunction against defendant no. 1 thereby restraining defendant no. 1, its associates and employees from raising any illegal construction in the suit property bearing No. 88/2, measuring about 35 sq. yards forming part of khasra no. 429, Masjid Moth, South Extension, New Delhi. The plaintiff has also prayed for mandatory injunction against defendant no.1 and no.2, thereby directing defendant no.1 and no. 2 to remove unauthorized construction in the suit property along with cost of the suit.
4. The defendants were served with the summons for the settlement of issues and a detailed written statement was filed by them. The defendant no.1 and no. 2 have filed WS separately. The defendant no.1 has taken preliminary objection that the suit of the plaintiff is not maintainable as there is no cause of action to file the present suit and the present suit has been filed with ulterior motives in C.S. No.500/10 Daya Chand Vs. Desh Raj 3 of 17 order to harass the defendant. Further the defendant no. 1 has denied all the allegations of the plaintiff in the plaint.
5. It is submitted by the defendant no. 1 that the suit property has been constructed by the Late father of the defendant somewhere in the year 1950 and later on the second floor was constructed by the defendant about 20 years ago and no new construction has ever been raised by the defendant no. 1. The suit property is very old and the defendant no. 1 has got it repaired as and when required. The defendant no. 1 has denied all the allegations of the plaintiff in the plaint.
6. Defendant no. 2 has filed written statement taking preliminary objection that the suit of the plaintiff is without any cause of action as no construction work is going on at the suit property. The building is very old one and approximately 3035 years old and residentially occupied. The suit of the plaintiff is also barred U/s 477/478 of D.M.C Act. Further the defendant no. 2 has also denied all the allegations of the plaintiff in the plaint.
7. The plaintiff has filed replication to the WS of defendant no.1 and 2. In the replication the plaintiff has denied the contents of the WS and has reasserted the averments in the plaint.
C.S. No.500/10 Daya Chand Vs. Desh Raj 4 of 17
8. From the pleading of parties following issues were framed:
1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? (OPP)
2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for ? (OPP)
3. Whether the suit of the plaintiff is barred U/s 477/478 of DMC Act? (OPD)
4. Whether the work carried out by defendant no. 1 amounted to be unauthorized construction or the same can only be termed as repair within the permissible limit? (Onus on parties)
5. Relief.
9. The plaintiff examined himself as the only witness PW1 and tendered his evidence by way of affidavit which is exhibited as Ex.P1. The plaintiff has relied upon copy of GPA which is exhibited as Ex.PW1/1 and site plan of the suit property which is exhibited as Ex.PW1/2.
10. On the other hand the defendant has examined himself as DW1 and has examined Sh. Munshi Ram as DW2. DW1 has tendered his evidence by way of affidavit which is exhibited as Ex. DW1/A and DW2 has tendered his evidence by way of affidavit which is exhibited C.S. No.500/10 Daya Chand Vs. Desh Raj 5 of 17 as Ex.DW2/A.
11. I have perused the material on record and carefully considered the submissions of Ld. counsel for the defendant no. 1. None has appeared for the plaintiff and defendant no. 2 to argue despite opportunity given. My issue wise findings are as below: Issue no. 3: Whether the suit of the plaintiff is barred U/s 477/478 of DMC Act?
12. The onus to prove this issue was on the defendant no. 2. The defendant no. 2 has not led any evidence to prove that the suit of the plaintiff is barred under Section 477/478 of Delhi Municipal Corporation Act.
13. In the interest of justice, a discussion on these Sections becomes necessary. A reading of these Sections is done here. Section 477 and Section 478 of Delhi Municipal Corporation Act reads as under: Section 477 Protection of action of the Corporation, etc: No suit or prosecution shall be entertained in any court against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any C.S. No.500/10 Daya Chand Vs. Desh Raj 6 of 17 municipal officer or other municipal employee, for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or byelaw made thereunder.
Section 478 Notice to be given of suits:(1) No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulations or byelaw made thereunder, until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action , the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending C.S. No.500/10 Daya Chand Vs. Desh Raj 7 of 17 plaintiff , and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit, such as is described in subsection (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.
14. Hon,ble High Court of Delhi in Yashod Kumari And Anr. vs MCD And Ors. 111 (2004) DLT 33 has held :
"But this apart, taking in regard that this Court had registered the suit and granted the stay order and that respondents had contested it all through, even notice under Section 53B should be deemed waived in the facts and circumstances of the case. After all the purpose of notice under Section 53B of DDA Act is the same as that C.S. No.500/10 Daya Chand Vs. Desh Raj 8 of 17 of Section 80, CPC i.e. to bring the claim to the authority's notice so that it may concede or contest it. Once the authority had contested it on merits even at preliminary stage, it could not complain of nonservice of notice under Section 53B now. Nor could it be held fatal to justify the dismissal of the suit. .... we feel that much water had flowed down since and doing so would be an exercise in futility because parties have already contested the suit on merit all through and all these years. It would be ridiculous and hyper technical to take them back to squate one for a fresh debate on service of two months' notice under Section 80, CPC or Section 53B of DDA Act. Both notices shall, therefore, be deemed waived in the facts and circumstances of the case and appellant's suit No. 316 shall be revived and disposed of under law on merit."
15. Strength can be taken from the aforesaid judgment of Hon'ble High Court of Delhi. Plaintiff in the present suit has filed application under Section 80(2) CPC for grant of exemption from serving prior C.S. No.500/10 Daya Chand Vs. Desh Raj 9 of 17 statutory notice upon defendants no. 2 for filing the present suit on the ground of urgent and immediate relief of injunction against defendant no.1.
16. The perusal of the order sheets shows that the defendant no.2 has never pressed for the preliminary objections taken by them in their written statement on the basis of which the issue no. 4 was framed by the Ld. Predecessor of this Court. It will not be appropriate in the interest of justice to dismiss the suit at this stage of final disposal for want of statutory notice which was required to be served before filing of the present suit. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
17. Issue no. 1 & 2: Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for ?
18. The issue no. 1 and 2 are taken together as both are inter connected. The onus to prove this issue was on the plaintiff. Plaintiff has examined himself as the only witness PW1. PW1 in his cross examination has stated that he has not lodged any complaint in the C.S. No.500/10 Daya Chand Vs. Desh Raj 10 of 17 office of MCD regarding alleged unauthorized construction carried out by defendant no.1. He has also stated that he never met any of the official of the MCD regarding the said unauthorized construction. He has admitted that no unauthorized construction have been made in the suit property by defendant no.1
19. Deposition of PW1 is contrary to what has been mentioned in his affidavit tendered by way of examination in chief, wherein in para 9 he has stated that he has approached the office of MCD on 29.09.2004 against the illegal construction and filed the complaint against defendant no.1.
21. PW1 has been cross examined at length by the Ld. Counsels for the defendants. The relevant statements of the PW1 are: "It is also correct that I never met with any official of the MCD i.e. defendant no. 2 regarding illegal and unauthorized construction raised by defendant no.1. I do not know about my case and I have not lodged any complaint with MCD office on 29.09.2004."
"It is correct that no authorized construction have been made in the suit property by the defendant no.1."
"It is correct that I do not know the contents of Ex.P1 C.S. No.500/10 Daya Chand Vs. Desh Raj 11 of 17 ( i.e. affidavit)."
"It is wrong to suggest that defendant no.1 has not caused any hole in the wall. I do not know as to what respected person of the locality gathered at the spot. No mohalla/ person ever gathered at the spot. It is incorrect to suggest that no damage was caused to my property by defendant no.1."
22. The stand of PW1 in his examination is contradictory to that of his stand in his affidavit. The plaintiff has not placed on record any photographs of the suit property to show that some unauthorized construction has been raised by the defendant no.1 or due to construction raised by the defendant no.1 in his premises, the wall of the property of the plaintiff has got damaged.
23. The documents exhibited by PW1 is GPA and agreement to sell which is Mark A. These documents have been objected to by the counsel for the defendant no.1 as the same have not been exhibited in the affidavit.
24. These documents relate to the proof of ownership of the plaintiff of the property bearing no. 88/02 forming part of Khasra no. 429 in the village of Masjid Moth, New Delhi. The ownership of the C.S. No.500/10 Daya Chand Vs. Desh Raj 12 of 17 plaintiff is not an issue to be decided in the present suit.
25. The plaintiff has not examined any other witness apart from himself to show that the defendant no. 1 has raised unauthorized construction in the suit property. Though a single witness is sufficient to prove a case as per Indian Evidence Act, however where contradictory stand is shown by the plaintiff, corroboration is required. Though plaintiff has alleged that the defendant no. 1 had done unauthorized construction at the suit property, the defendant no. 2 has taken stand in its written statement that there is no unauthorized construction on the suit property and the suit property is very old and occupied. Nothing has been placed on record to show that the claim of defendant no.2 is not correct. An official report has to be accepted as correct unless expressly challenged.
26. Whether the defendant no. 1 has done unauthorized construction on the suit property can not be determined by the plaintiff. MCD/DDA are the competent authorities to decide whether any construction is authorized/unauthorized. Mere selfserving statement of plaintiff is not sufficient to prove that the defendant no. 1 has raised unauthorized construction on the suit property. The plaintiff has not examined any other witness to show that the C.S. No.500/10 Daya Chand Vs. Desh Raj 13 of 17 defendant no. 1 has raised unauthorized construction on the suit property by digging the property all around and near as well as adjacent to the property of the plaintiff.
27. The MCD in his written statement has stated that suit property is very old and occupied and no construction has been carried out by the defendant no. 1 recently. Defendant no. 1 in his cross examination has stated that the suit property is constructed up to second floor and the second floor was constructed by defendant no.1 about 2030 years ago and thereafter no construction work has been done in the suit property and only repair works was carried out and he has got the balcony on the first floor repaired by way of plaster. He has denied the suggestion that the girder was to put in the balcony of the plaintiff to get the repair work done in the property of defendant no.1.
28. DW2 has also stated that the defendant no.1 was getting the repairs done of the balcony and the police came on the spot when there was dispute between the plaintiff and defendant no. 1 regarding the repairs and further after the complaint to the police by the plaintiff no repair work was done by the defendant no.1.
29. There is a presumption of correctness and regularity of the official acts. The report submitted by the authority i.e. MCD is C.S. No.500/10 Daya Chand Vs. Desh Raj 14 of 17 presumed to be correct. Plaintiff has not examined any other witness to show that the report of MCD is not correct.
30. In this backdrop, coupled with the presumptions of correctness and regularity attached with the report of MCD (as stated in written statement), I do not feel inclined to rely upon the self serving statement of the plaintiff wherein he has stated that the defendant no. 1 has done unauthorized construction on the suit property which is contrary to the report of MCD.
31. In view of above discussion, this court holds that the plaintiff has not able to discharge the onus of proving that the defendant no. 1 has done unauthorized construction on the suit property by digging of wall or by damaging the wall of the property of the plaintiff. Accordingly the issues no. 1 & 2 are decided in favour of the defendants and against the plaintiff.
32. Issue no. 4 : Whether the work carried out by defendant no. 1 amounted to be unauthorized construction or the same can only be termed as repair within the permissible limit?
33. The onus to prove this issue was on both the parties. In view of my findings on issue no. 1 and 2, this court holds that the plaintiff has failed to prove that the defendant no. 1 has done unauthorized C.S. No.500/10 Daya Chand Vs. Desh Raj 15 of 17 construction on the suit property.
34. The onus of proof that the defendant no. 1 was doing only repair works in the suit property was on the defendant no.1. Defendant no.1 has examined himself as DW1 and Sh. Munshi Ram as DW2.
35. The defendant no. 1 /DW1 his affidavit has stated that the suit property being very old, the defendant no.1 got repaired the same. The plaster of the wall have been peeled up and required repairs and the defendant no.1 got it repaired along with the balcony in front portion. During the cross examination of DW1 also he has stated that no unauthorized construction has been done by the defendant no. 1 in the suit property.
36. DW2 Sh. Munshi Ram has also deposed in affidavit that the defendant no.1 has not taken up the construction in his own property by digging the property all around it. He has also deposed that the defendant no.1 has got repaired the permissible repairs as the plaster of the walls had been peeled up and due to heavy rain, the balcony in front portion of the property of the defendant no.1 has got damaged partly and the defendant no.3 has got it repaired. The plaintiff has failed to prove that the work carried out by the defendant no.1 amounted to unauthorized construction. However the defendant no.1 C.S. No.500/10 Daya Chand Vs. Desh Raj 16 of 17 has led evidence to this effect that the work carried by the defendant no.1 was only repair of the plaster of walls and balcony. Therefore this issue is decided in favour of the defendant no.1 and against the plaintiff.
37. Relief For the foregoing reasons, the suit of the plaintiff is dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly.
File be consigned to the record room.
Announced in the open court today .i.e. 28.09.2011 (NEHA) Civil Judge03(South) Saket, New Delhi.
C.S. No.500/10 Daya Chand Vs. Desh Raj 17 of 17