Delhi District Court
And Also At A249 vs Rakesh Mahajan on 3 February, 2014
In the Court of Pawan Kumar Matto,
Additional District Judge03(East),
Karkardooma Courts, Delhi.
RCA No.: 37/2011
Unique Case ID No.: 02402C0211072011
Date of Institution : 19.07.2011
Date of Reserving Judgment : 23.01.2014
Date on which judgment was pronounced: 03.02.2014
In the matter of :
Shri R.K. Gaur
s/o Shri R. C. Guar
B2, Plot no.13,
Basement, Jagdamba Tower,
Commercial Complex,
Preet Vihar, Delhi92
And also at A249,
Brij Vihar,Ghazaiabad,U.P. ......Appellant/Counter Claimant
Versus
1. Rakesh Mahajan,
S/o Late Sh. K.C.Gupta,
G10A, Plot no. 13,
Jagdamba Tower,
Commercial Complex,
Preet Vihar, Delhi92 ....Respondent no.1/defendant no.1
RCA No.37/2011 Page No.1 of 16
2. Municipal Corporation of Delhi,
Through its commissioner,
Town Hall, Chandni Chowk,
Delhi - 110006. ....Respondent no.2/defendant no.5
3. Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, INA, New Delhi. ....Respondent no.3/defendant no.4
4. Sh. Viond Goel,
S/o Late Sh. Madan Gopal ....Respondent no.4/Plaintiff
5. Smt. Sunita Goel,
W/o Sh. VInod Goel ....Respondent no.5
Both R/o D211, Ram Prastha
Colony, Ghaziabad, U.P.
J U D G M E N T
03.02.2014
1. This is an appeal against the impugned judgment and decree dated 21.05.2011 passed by the court of Sh. Jagdish Kumar, Additional Sr. Civil Judge(East),KKD, vide which, the counter claim of the appellant / counter claimant/defendant no.1 has been dismissed.
2. Briefly stating, the facts of the case, relevant for the disposal of the present appeal are that the plaintiff/defendant had filed civil suit bearing No.793/07 against the defendants. The said civil suit was dismissed as RCA No.37/2011 Page No.2 of 16 withdrawn and in the said suit the defendants had file the joint written statement and defendant no.1 had filed the counter claim against the plaintiff. Plaintiff, as well as, defendant no.4 (MCD) and 5 (DDA). It is stated in the counter claim that the counter claimant/defendant no.1 is the owner of the basement of the suit property and above the basement, the plaintiff/defendant (in the counter claim) is a property dealer and in order to fetch the high prices, the extra shutter and stairs were opened/installed towards the parking and opening of the shutters and installation of the stairs case are detrimental to the public in general and defendant no.1/ counter claimant in particular and causing hindrance in the enjoyment of the easementry right i.e. to enjoy the free flow of air and natural light to him, as the stairs cases cover the ventilators situated in the basement of the counter claimant. The ventilators, shutters and stairs case are shown red colour in the site plan. It is further averred that in an earlier suit filed by the defendant no.2 against the plaintiff in respect to the same property, the court was pleased to restrain the plaintiff to install the stair case in front of the shutter of the shop above the basement of the defendant no. 2. It is further stated that the shutters have been illegally opened towards the parking and the same are in violation of the sanctioned plan of the DDA, but, the defendant no. 4 has not taken any action in respect of the same and in respect of the other two shutters of the shops situated above the RCA No.37/2011 Page No.3 of 16 basement of counter claimant/defendant no.1. Whereas, the nature of all the three shutters of the shops are same and the same are illegal and unauthorized and in violation of sanctioned plan and the counter claimant has also stated that in order to appreciate his contention, the claimant/defendant no. 1 had filed the site plan, whereas, the plaintiff has not filed the site plan deliberately, so, that the collusion with the defendants no.4&5 may not be disclosed/seen. It is also stated that counter claimant had also agitated the matter before the authorities, as a result of which, the construction activities were stopped and the stairs made of iron were dismelted on the intervention of the police and the plaintiff has given written apology before the police. It is further stated that the plaintiff, instead of removing the above said illegal construction of shutter shown in the site plan filed by the counter claimant, has further raised construction to install the stairs by covering the ventilators of the counter claimant and deprived him of his easement right to peaceful use, occupy and enjoy the property. It is also stated that counter claimant has lodged complaint dated 20.06.2003 and 23.06.2003 to the concerned authorities about such illegal construction of shutters towards the parking on the ground floor and the same is liable to be closed by the def. no. 4 or by the plaintiff himself and the counter claimant has prayed for passing a decree of mandatory injunction in favour of the counter claimant / RCA No.37/2011 Page No.4 of 16 defendant no.1 against the plaintiff/defendant. For removing the shutters from the shops situated on the ground floor, above the basement of the counter claimant and also remove the stair cases shown in the site plan and also sought direction for the def. 4 & 5 to enforce the local laws applicable to the suit property and to ensure the protection of the rights of the counter claimant / defendant no.1 by taking action against the two shutters illegally installed towards the parking.
3. The defendant no.1/plaintiff has filed the reply to the counter claim and contested the same on the grounds inter alia that the same is not maintainable, as the defendant has not come to the court with the clean hands and he has also stated that trial court has no jurisdiction to decide the matter, as the matter regarding existence of shutter was pending in the court of Sh. B.S. Mathur, MCD Appellate Tribunal. The plaintiff / defendant no.1 has not denied the ownership of the shop. He has denied that he has installed the shutters in order to fetch high prices. He has stated that shutters were already in existence at the time of purchasing the property by the plaintiff / defendant no.1. He has denied that the shutters are in any violation of law and stated that no prior sanction is required for installation of the shutters and denied that shutters in the shops are unauthorized or in violation of any law and stated that counter claim has been filed by the defendant to harass the plaintiff and after denying other RCA No.37/2011 Page No.5 of 16 averments made in the counter claim, he has sought dismissal of the counter claim.
4. Whereas, the defendant no.4, i.e., MCD had also filed to the reply of counter claim and contested the same on the grounds inter allia that the counter claim is barred U/s 477/478 of DMC Act for want of statutory notice and stated that MCD has already initiated action against the unauthorized constructions / fixing of shutters and also stated that since the plaintiff has violated the norms of the sanctioned plan by fixing the shutters, so, the action will be taken, as per provisions of DMC Act. It is also stated that plaintiff is under obligation to remove the shutters fixed illegally immediately and stated that counter claim of the counter claimant is without any cause of action against the MCD and is liable to be dismissed.
5. Defendant no. 5 has not filed any reply to the counter claim.
6. Vide order dated 06.03.2006, the counter claim of the counter claimant/defendant no.1 is clubbed with the civil suit bearing no.533/06 by the ld. Trial court.
7. Vide impugned judgment dated 21.05.2011, Ld. Trial Court was pleased to dismiss the counter claim of the defendant no. 1.
8. Feeling aggrieved, the counter claimant/defendant no.1 has filed the present appeal against the impugned judgment dated 21.05.2011, RCA No.37/2011 Page No.6 of 16 and notices of the appeal were issued to the respondent's. Respondent's were served and respondent no.1 has contested the appeal.
9. The record of the trial court is also requisitioned and perused.
10. I have heard the ld. counsels for the appellant and respondent no.1. The respondents no.2&3 were proceeded exparte. But, at the time of arguments, the ld. Counsel for the respondent no.2 had come, but, he did not argue. I have perused the record.
11. The ld. counsel for the appellant has submitted that the vide order dated 06.03.2006, the counter claim of the counter claimant/defendant no. 1 was clubbed with the civil suit bearing no.533/06 titled as Vinod Kumar Vs. Rakesh Kumar. He has also submitted that since Sh. Vinod Kumar has been examined as PW1, so, his testimony can be relied upon for the decreetal of the counter claim filed by the counter claimant/defendant no.1. He has also submitted that the counter claim was filed by all the three defendant's namely R. K. Guar, Vinod Goel and Sunita Goel, as the written statement was also joint, so it was not essential for Sh. R. K. Gaur to come in the witness box to depose, in view of the clubbing of the case of Sh. VInod Kumar with the counter claim filed by the defendant's. He has admitted that the description of the shops are not mentioned in the counter claim, but, at the same time he has also submitted since the clarifications were given by the counter claimant in RCA No.37/2011 Page No.7 of 16 the trial court that counter claim has been made regarding the shop no.G10A & G18. He has also submitted that site plan has been placed on record by Sh. Vinod Goel, which is proved on record as PW1/C. He has also submitted that Vinod Goel has also filed the complaints, copies whereof are Ex. PW1/E & PW1/F and further submitted that since the shutters have been installed by the plaintiff illegally on two shops and without having any permission from the competent authorities, so, the counter claim of the counter claimant is liable to be decreed and site plan Ex.PW1/C is also filed by Sh. Vinod Kumar, so, he has prayed for decreetal of the counter claim filed by the counter claimant, by way of allowing the present appeal.
12. Whereas, the ld. counsel for the respondent no.1 has submitted that the counter claim was filed by the defendant no.1 and ld. Counsel for appellant has tried to mislead this court by way of stating wrong fact that the counter claim was filed by all the three defendants. He has also submitted that counter claim was filed by the defendant no.1 alone and defendant no.1 Sh. R. K. Gaur chose not to appear in the witness box to prove his case. He has also submitted that in view of non examination of the sole counter claimant, the Ld. Trial court has rightly drawn an adverse interference against the counter claimant. He has also submitted that since the counter claim was filed by sole counter claimant/defendant RCA No.37/2011 Page No.8 of 16 no.1, so, it was incumbent on the part of the counter claimant to come in the witness box to prove his case. He has also submitted that in the counter claim, the defendant no.1 / counter claimant has stated that he had filed the site plan of the suit property with the counter claim, but, no site plan has been filed by the counter claimant, so, the facts mentioned in the counter claim are erroneous to this extent. He has also submitted that since the counter claimant was seeking the removal of the shutters from the shops, so, it was incumbent on the part of counter claimant to give the details, description, shops numbers of the shops, from which the shutters are sought to be removed. He has also submitted that clarification given by the counter claimant regarding the shop no.G10A & G18 was beyond of the pleading of the counter claim, so, the same cannot be looked into. He has also submitted that suit of the Vinod Kumar was relating to some other property / shop and same has been decreed, but, Sh. Vinod Kumar has not deposed qua the shop no.G10A & G18, so, the testimony of Sh. Vinod Kumar cannot be looked into. It is also submitted that since the case of the counter claim of the counter claimant / defendant no.1 is full of vagueness and unproved, so, the Ld. Trial Court has rightly dismissed the counter claim filed by the counter claimant /defendant no.1 and submitted that since the site plan Ex.PW1/C placed on record by Sh. VInod Kumar also does not show the shops RCA No.37/2011 Page No.9 of 16 no.G10A & G18, so, the said site plan filed by the Vinod Kumar cannot not be looked into and submitted that present appeal has been filed by appellant to cause unnecessary harassment to the respondent no.1 and the same is false and same is liable to be dismissed with the heavy cost.
13. I have given thoughtful consideration to the submissions made by the ld. counsels for the parties and perused the record.
14. The perusal of the record shows that the suit filed by the plaintiff / defendant (in the counter claim) was dismissed as withdrawn on dated 29.09.2005 and the counter claim filed by the counter claimant / defendant no.1 was clubbed with the civil suit no.533/06 filed by Sh. Vinod Kumar against Rakesh Mahajan and others. It is worthwhile to mention here that the ld. Trial court had framed the issues in the civil suit No.533/06, which was as under :
1. Whether the suit is barred by the provisions of sec.53(B) of DDA Act, 1957? OPD.
2. Whether the suit is barred by the provisions of Sec.477/478 of DMC Act ? OPD.
3. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for ? OPP
4. Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed for ? OPP
5. Relief.
and in the counter claim filed by Sh. R K Gaur, no issues were framed and RCA No.37/2011 Page No.10 of 16 Sh. Vinod Kumar had filed the civil suit bearing No.533/06 regarding the property other than those, which are sought to be involved in the counter claim filed by the counter claimant / defendant no.1 and in order to prove his case, Sh. Vinod Kumar had examined himself as PW1 and Sh. Pramod Jain was examined as PW2, Ram Nath Kalra, Dealing Assistant of the Commercial Land Branch, Vikas Sadan, DDA was examined as PW3 and Sh. R K Singh, Assistant Engineer, Shahdara South Zone was examined as PW4 and Sh. Rajbir Kundu, AE, Building, Shahdara South Zone, MCD was examined as PW5, Sh. Naresh Kumar, Ahlmad from the court of Ms. Sunita Gupta, Appellate Tribunal, MCD was examined as PW6 and the plaintiff / defendant (in counter claim) has examined himself as DW1 and the ld. Trial court is pleased to decide the issues no.1&2 in favour of the counter claimant / defendant no.1 and issues no.3&4 were decided in favour of the defendant / plaintiff and against the counter claimant and consequently counter claim filed by counter claimant / defendant no.1 was dismissed. From the perusal of the counter claim, it is clear that the counter claim was filed by the defendant no.1 alone and ld. Counsel for appellant has submitted that the counter claim was filed by three defendants jointly and this court finds that such submissions made by the ld. Counsel for the appellant are contrary to the judicial record and the ld. Counsel for the appellant has tried to mislead this court by way of stating wrong facts. RCA No.37/2011 Page No.11 of 16 Since the counter claim was filed by the defendant no.1 / counter claimant and the counter claimant has made the prayer clause in the counter claim to pass the decree of mandatory injunction in favour of the counter claimant/defendant no.1 against the plaintiff/defendant's for removing the shutters from the shops situated on the ground floor, above the basement of the counter claimant and also remove the stair cases shown in the site plan and also sought direction for the def. 4 & 5 to enforce the local laws applicable to the suit property and to ensure the protection of the rights of the counter claimant / defendant no.1 by taking action against the two shutters illegally installed towards the parking. So, it was incumbent on the part of the counter claimant to disclose the numbers of the shops and their addresses, of which the shutters are sought to be removed. But, the counter claimant / defendant no.1 has failed to mention any details, description or shop numbers of the shops, from which the shutters are sought to be removed. It is also pertinent to mention here that the ld. Counsel for the appellant has submitted that clarifications were given by the appellant in the ld. Trial court, but, the trial court has ignored clarifications given by the appellant. In the considered opinion of this court, since the appellant has sought the relief regarding some shops so, it was incumbent on the part of the appellant to give the descriptions and numbers of the shops, for the purpose of identification of the suit property and this court finds that the RCA No.37/2011 Page No.12 of 16 counter claim filed by the counter claimant / defendant no.1 is vague, as no shop numbers or their addresses are mentioned therein. The ld. Counsel for the appellant has submitted that the site plan Ex.PW1/C is there on the record and the clarifications were also given, but, this court has perused the site plan filed by Sh. Vinod Kumar in his civil suit, which is Ex.PW1/C, but, this court does not find the shop numbers even therein, regarding which, the relief has been sought by the counter claimant in his counter claim and the details of the property was given in the said site plan Ex.PW1/3 by Sh. Vinod Kumar regarding which the relief was sought by Sh. Vinod Kumar in his civil suit bearing No.533/06. So, such submissions of the ld. Counsel for the appellant are also erroneous that the suit property involved in counter claim is shown in site plan Ex.PW1/C, which was filed by Sh. Vinod Kumar in his civil suit.
15. It is also worthwhile to mention here that since the counter claimant / defendant no.1 has filed the counter claim, so, it was incumbent on the part of the counter claimant to come in the witness box to depose regarding his counter claim, but, the counter claimant Sh. R K Gaur chose to not examine himself and their Lordship of Supreme Court in case''Vidhyadhar Rao V/s Mankikrao and another AIR 1999 SC 1441(1), is pleased to hold that ''Where a party to the suit does not appear into the witness box and states his own case on oath and does RCA No.37/2011 Page No.13 of 16 not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct''. So, the ld. Trial court has rightly drawn an adverse inference against the counter claimant, because, had the counter claimant entered into witness box, the defendant could avail an opportunity to cross examine the plaintiff and clarifications made regarding the suit property, were beyond pleading, so, the same cannot be looked into.
16. So, in the light of the law laid down by the Apex court in the above said judgment, the ld. Trial court has drawn an inference against the counter claimant and I do not find any perversity in drawing such adverse inference against the counter claimant for his non examination in the trial court. It is worthwhile to mention here that the counter claimant has mentioned in his counter claim that he has filed the site plan of the property. But, from the perusal of the record of trial court, it is clear that counter claimant has not filed any site plan, as mentioned in the counter claim and thus the facts pleaded in the counter claim to this extent are false.
17. The ld. Counsel for the appellant has submitted that since Sh. Vinod Kumar has been examined as PW1, so, his testimony can be looked into, but, this court has perused the testimony of PW1 Sh. Vinod Goel and from his testimony, it is clear that he has deposed regarding the property, RCA No.37/2011 Page No.14 of 16 in respect of which he has sought the relief in his civil suit bearing No. 533/06 and thus it is clear that the properties, regarding which the relief has been sought by the counter claimant, are different from the property, regarding which the relief was sought by the Vinod Kumar in his civil suit bearing No.533/06. So, in the considered opinion of this court, the testimony of Sh. Vinod Kumar cannot be looked into for the decreetal of the counter claim made by the counter claimant / defendant no.1. The ld. Counsel for the appellant has also submitted that appellant has given the clarifications in the trial court and gave the description of the shops no.G10A & G18, regarding which the relief has been sought by the appellant / counter claimant. But, in the considered opinion of this court, since the counter claimant has failed to give any shops number or addresses of the shops in the counter claim, regarding which the relief was sought, so, the clarifications were beyond of the pleadings of the counter claimant, so, the same cannot be looked into and the counter claimant has also failed to examine himself, so, the ld. Trial court has drawn an adverse inference for non examination of the counter claimant and as per the law laid down by the Apex Court in the above said judgment, it is presumed that the counter claim filed by the counter claimant is not correct.
18. Cumulative effect of the above discussion is that I do not find any force in the submissions made by the ld. Counsel for the appellant. RCA No.37/2011 Page No.15 of 16 Whereas, I am having full inclination with the submissions made by the ld. Counsel for the respondent no.1. Accordingly, I do not find any infirmity in the impugned judgment dated 21.05.2011, which may require any interference therein. So the same stands upheld. The appeal of the appellant is hereby dismissed, being devoid of merit. Decree sheet be prepared accordingly. Parties are left to bear their own costs. File be consigned to the record room. The record of the trial court is ordered to be returned.
Pronounced in the open court on dated 03.02.2014 ( Pawan Kumar Matto ) Additional District Judge03(East) Karkardooma Courts, Delhi.
RCA No.37/2011 Page No.16 of 16