Delhi District Court
Promila Gupta vs Shobha Sanwalka on 3 March, 2017
IN THE COURT OF SH SONU AGNIHOTRI,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
MCA No. 10/17
Promila Gupta
W/o Dr. Subodh Chandra Gupta
R/o 3030 K Street NW,
Suite 110, Washington DC - 20007
Through her General Attorney
Mr. Gurvinder Pal Singh Batra
S/o Sh. Gurbachan Singh Batra
E18, Sector 30, Noida, UP - 201301
.......... Appellant
Versus
1. Shobha Sanwalka
W/o Sh. Satish Chanler Sanwalka
R/o 38, First Floor, Front Block,
Anand Lok, New Delhi - 110049
And Also at:
BXX2892, Gurdev Nagar,
Ludhiana, Punjab - 141001
2. South Delhi Municipal Corporation
Through is Deputy Commissioner,
Central Zone, Jal Vihar, New Delhi
.......... Respondents
Date of institution : 21.02.2017
Date when judgment reserved : 02.03.2017
Date of Judgment : 03.03.2017
MCA No. 10/17
Promila Gupta Vs. Shobha Sanwalka Page 1 of 16
JUDGMENT
1. This is an appeal against the impugned order dated 28.01.2017 passed by Sh. Gaurav Rao, Ld. Senior Civil Judge, South East by which Ld. Senior Civil Judge refused to grant stay sought by appellant herein while keeping application under Order 39 Rule 1 & 2 CPC pending.
2. Brief facts as borne out from the Trial Court record are that appellant filed a suit for permanent and mandatory injunction and also moved an application u/s 151 akin to Order 39 Rule 1 & 2 CPC praying for appropriate directions to be passed in favour of appellant and against respondents herein. One of the prayer in this application filed by appellant was regarding giving of direction to respondent no. 1 to stop construction at the property in question with immediate effect.
3. In the plaint, the appellant has mentioned that respondent no. 1 is sister of appellant. It is stated that appellant has settled herself in USA since early 60s and is an American Citizen with Non Resident Indian status. It is stated that in early 70s, it was decided between family members that they should arrange for a common pool of residence in Delhi to which appellant and respondent no. 1 consented. It is stated that respondent no. 1 contributed her plot bearing No. 38, Anand Lok, New Delhi in the said common pool for residence and towards construction of the same, appellant and her two brothers agreed to make contributions and they were allotted built up portion on ownership basis in lieu thereof. It is stated that respondent no. 1 MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 2 of 16 was not to make any contribution towards construction. Appellant has detailed her contribution in plaint filed by her. It is stated that in 1981, built up portions were handed over to respective owners. It is stated that appellant was handed over complete built up portion of her ground floor apartment in the front block and basement was handed over in semi finished state. It is stated that respondent no. 1 was given first floor apartment in front block above apartment of appellant. It is stated that thereafter certain disputes arose between parties to the said family settlement on account of which appellant filed suit for possession, declaration, injunction and other reliefs which is presently pending before court of Ms. Deepali Sharma, Ld. ADJ, Tis Hazari Courts. It is stated that appellant kept Mr. Wajihul Hassan, an employee in company of her sons as caretaker for her apartment who informed appellant in first week of February 2016 that respondent no. 1 started making some construction on the first floor because of which water supply to portion of appellant was obstructed. It is stated that subsequently caretaker further informed that respondent no. 1 completely demolished her first floor apartment and in the process, water supply to appellant's apartment was completely stopped. It is stated that besides stopping water supply, respondent no. 1 also caused damage to portion of appellant by way of seepage on roof of ground floor portion, falling of POP work in drawing room and bedroom of ground floor, cracks in marble affixed to wall of drawing room due to impact of demolition of first floor and huge cracks on the roof, wall and flooring in the portion of appellant, seepage in the bathroom and MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 3 of 16 cracks in falling of plaster from roof of room in the basement. It is stated that action of respondent no. 1 to reconstruct first floor and thereafter to raise further construction above first floor is illegal and against municipal bye laws and no building plan has been got sanctioned for the same.
4. Respondent no. 1 filed written statement before Trial Court in which it was stated that construction being done by respondent no. 1 is legal construction, site plan for which has been duly sanctioned by respondent no. 2 i.e. SDMC. It is stated that purpose of filing of the suit by appellant is to harass the respondent no. 1 and to extract money from respondent no. 1. It is stated that respondent no. 1 is absolute owner of not only portion in illegal and unauthorized possession of appellant but the entire property i.e. 38, Anand Lok, New Delhi (hereinafter referred to as suit property). It is stated that no damage was caused to apartment of appellant due to construction carried out by respondent no. 1. It is stated that damages and cracks in the property in possession of appellant have occurred due to passage of time and due to the reason that appellant and her family members are not residing in the said portion of the property and lack of maintenance on account of the same. Respondent no. 1 has denied contribution of her plot towards construction of common pool of residence for brothers and sisters. It is denied that appellant made any contribution towards construction of suit property. It is stated that respondent no. 1 took assistance of her brother Mr. Satya Sheil Gupta in raising construction over the said plot and compensated him for the MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 4 of 16 same and never agreed that anyone will be alloted built up portion on ownership basis. It is stated that respondent no. 1 is not aware of any payment as alleged by appellant. It has been denied that in the year 1981, built up portion was handed over to respective owners. Filing of suit by appellant for declaration, possession, injunction and other reliefs has been admitted by respondent no. 1. It is stated that no family settlement ever took place between parties and respondent no. 1 was and is absolute exclusive owner of suit property. It is stated that respondent no. 1 never executed any title documents in favour of appellant or Mr. Satya Sheil Gupta. It is stated that use by appellant and Mr. Satya Sheil Gupta in respect of some part of suit property is only permissive for which respondent no. 1 never objected because of close blood relations between the parties. It is stated that respondent no. 1 never wanted to indulge herself in litigation against her brothers and sisters and that is why she has not filed any case/proceedings against appellant. It has been denied that water supply was stopped because of construction carried out by respondent no. 1. Damage to property of appellant because of construction has been denied.
5. Respondent no. 2 also filed written statement in which it has been stated that respondent no. 1 started construction in the suit property as per sanctioned building plan of addition and alteration. It is stated that if any deviation and violation of sanctioned plan is found in the suit property, action shall be taken as per DMC Act.
6. In appeal, respondent no. 2 chose not to appear despite service and was proceeded exparte.
MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 5 of 167. Appellant challenged impugned order on the following grounds: 7.1. The impugned order is erroneous and deserve to be set aside as the same allows an illegality to perpetuate. Despite being aware of the inconsistent stands of the respondent authority and eventually becoming aware that the sanction, if at all accorded, had in fact been obtained by misrepresentation, the impugned order by not directing stoppage of construction has allowed the fraud and illegality to continue.
7.2. The impugned order is erroneous as it takes no note of the fact that once the respondent authority itself came to the conclusion that the plans had been obtained by misrepresentation / fraud, the plans automatically stood revoked in essence as it is an established principle in law that fraud vitiates all.
7.3. The impugned order is erroneous and merits to be set aside as the same fails to balance equalities or convenience, in accordance with law. Given the fact that respondent no. 1 had misrepresented facts to the respondent authority coupled with the fact that the respondent authority had repeatedly varied its stand, which amongst themselves were irreconcilable, the balance of convenience as well as all equities squarely titled in favour of the appellant and against the respondents.
7.4. Because the impugned order is erroneous and merits to be set aside as the same takes no note of the fact that as per the settled tenets of law, money is not adequate compensation when the case MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 6 of 16 pertains to removable property.
7.5. Because the impugned order is erroneous and merits to be set aside in as much as it does not take any note of the fact that in view of the structural stability of the building coming under question and as one caretaker visits and remains in the property on the daily basis, the illegal construction being carried out by the respondent no. 1 especially in the manner that the same has been carried out poses threat to limb and life of the caretaker or any other person that might be in the property, ought to have been stopped. Thus, the appellant or anyone acting on her behalf and visiting the property may suffer irreparable damage and this fact made the case a fit case for grant of injunction in favour of the appellant and against the respondent.
7.6. Because the impugned order is erroneous in as much as it fails to take no note of the fact that a prima facie case had already been made out not just by the appellant but by the conduct and documentation of the respondents. In view of the inconsistent and fraudulent stands taken by the respondents, the impugned order denying the injunction to the appellant could not have come to be passed.
7.7. Because the impugned order fails to take into consideration that the stage of the proceedings were initial and thus, the court had to only consider a prima facie case. The learned Court has infact conducted a trial at the very inception of the proceedings, which in itself is barred by law.
MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 7 of 167.8. Because the impugned order merits to be set aside, as the learned court below has failed to exercise the jurisdiction that vested within its purview. By failing to stall the construction that on the fact of it is not only illegal but is also defeating the rights of the appellant to enjoy her property peacefully, the learned court below has not exercised the authority that is vested in it. 7.9. Because the impugned order fails to take note of the fact that the appellant is entitled to enjoy peaceful possession of the property in peace. The right to enjoy one's property is a right recognized and guaranteed by law. By failing to protect the rights of the appellant, the impugned order has rendered itself liable for challenge.
7.10. Because the impugned order is inconsistent on a bare reading. On one hand the learned court below has found that the respondent authority has taken stands that on the fact of its are difficult to reconcile for which the learned court below has sought for an explanation by an officer as senior as the deputy commissioner and yet on the other has allowed the construction to go on. These two stands that find mention in the impugned order, makes the order irreconcilable and inconsistent and therefore, liable to be set aside.
8. Appellant has prayed for setting aside impugned order and declare ongoing construction illegal and direct respondent no. 2 to take necessary consequential action in law.
9. Respondent no. 1 did not file any reply to the appeal and MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 8 of 16 straightaway argued the matter.
10. Counsel for respondent no. 1 argued that appeal is not maintainable as application of appellant under Order 39 Rule 1 & 2 CPC has not been disposed of yet by Trial Court and as such impugned order dated 28.01.2017 is not appealable. Counsel for respondent no. 1 drew my attention to Order 43 Rule 1 (r) CPC as per which orders passed under Rule 1, 2, 2A, 4 or 10 of Order 39 CPC only are appealable.
11. Counsel for appellant to this argument of respondent no. 1 drew attention to definition of Order as laid down in Section 2 (14) CPC as per which order is formal expression of any decision of a civil court which is not a decree. She further filed judgment in case titled as "Magotteaux Industries Pvt. Ltd. And Ors. Vs. AIA Engineering Ltd. MANU/D/1615/2008". In this case, Hon'ble High Court of Delhi dealt with the proposition regarding maintainability of appeal against an exparte ad interim order when interim application is still pending. In this case, Hon'ble High Court of Delhi held that even if impugned order is passed u/s 151 CPC and the provision under Order 43 Rule 1 (r) are not applicable, appeal is still maintainable on the basis of ratio in Shah Babulal Khimji's case.
12. Though in the present case, no exparte ad interim injunction order has been passed but I am of the view that ratio as laid down in Magotteaux Industries Pvt. Ltd. And Ors. (supra) is applicable in facts and circumstances of present case as though application under order 39 Rule 1 & 2 CPC has not been decided by MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 9 of 16 Trial Court yet but relief as sought by appellant has been refused by Trial Court till next date of hearing before Trial Court vide impugned order and it can be said that Trial Court has taken decision which comes within definition of order as laid down in Section 2 (14) CPC. It is well settled that justice should not only be done but appears to have been done. Trial Court was well within its right to dispose of application of appellant under Order 39 Rule 1 & 2 CPC in either way but on one side, Trial Court refused relief as sought by appellant and on the other hand gave date of about two months for further arguments on the pending applications which in circumstances of present case appears to have prompted appellant to file present appeal.
13. Had respondent no. 2 appeared and made its stand clear in the appeal, it would have facilitated interest of justice but respondent no. 2 choosing not to appear despite service makes this Court take adverse view vis a vis stand of construction being carried out by respondent no. 1 in the suit property in light of facts and circumstances of present case as reflected in impugned order and evident from TCR.
14. Various status reports regarding construction on the suit property was filed by respondent no. 2 before Trial Court. In status report filed before Trial Court on 29.09.2016, number of violations in existing structure has been reported by SDMC. One letter dated 31.10.2016 written by AE (Building), Central Zone, SDMC is on record of Trial Court vide which request has been made to SHO, PS Defence Colony to take action u/s 344 (2) of DMC Act and further MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 10 of 16 request has also been made to stop unauthorized construction by the police with respect to suit property. In status report filed on 01.12.2016, JE (Building) has reported various compoundable and non compoundable deviations in the suit property. Appellant brought on record one letter written by JE (Building), Central Zone Mr. Lalit Sharma dated 17.10.2016 (having receiving of 18.10.2016) before Trial Court vide which JE concerned has given noting for getting revoked sanction granted with regard to suit property. JE concerned has reported various misrepresentation of facts while obtaining sanction of building plan in this letter. Ld. Trial Court also in the impugned order asked JE concerned to file detailed report in terms of his report dated 18.10.2016 explaining how/on what grounds/ basis the above report can be reconciled with report dated 09.01.2017. In report submitted on 09.01.2017, JE Mr. Lalit Sharma has stated that no application for regularization of deviation/excess coverage in respect of suit property has been received in Building Department, Central Zone. He has further reported regarding removal of infringement from front setback and same is within permissible limit. He further reported that part infringement from left side setback found removed and work regarding removal of remaining infringement was seen in progress. He further reported that opening of lift has been brought as per sanctioned plan. In impugned order submission has been made on behalf of respondent no.2 that deviations/infringements which were noted in August/September 2016 stands rectified/compounded. On one side it has been stated by respondent MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 11 of 16 no.2 in report dated 09.01.2017 that no application for regularization of deviation/excess coverage in respect of suit property has been received in Building Department, Central Zone and on other hand in submissions made before Trial Court in impugned order dated 28.01.2017, it has been submitted that deviations/infringements noted in AugustSeptember,2016 stands rectified/compounded. Both the stands taken by respondent no.2 before Trial Court are contradictory. Howcome without receiving any application for regularization, deviations/infringements were rectified/compounded. Counsel for respondent no.1 during course of arguments filed copy of receipt dated 04.04.2014 vide which compounding fee regarding suit property was deposited by respondent no.1. In case compounding fee was already deposited by respondent no.1 way back in 2014, howcome respondent no.2 in various reports filed before Trial Court did not state earlier than by way of making submissions on 28.01.2017 that deviations were rectified/compounded. Stand of respondent no.2 before Trial Court appears to be changing in various reports with regard to construction in suit property and it appears that there is malafide on part of officials of respondent no. 2 in this regard. Trial court failed to take this into account vide passing impugned order and appears to have been swayed by submissions made by counsel for respondent no.2 on 28.01.2017.
15. During course of arguments, counsel for respondent filed photocopy of conveyance deed in favour of respondent no.1 with regard to suit property and submitted that respondent no.1 is absolute MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 12 of 16 owner of suit property and appellant being only in permissive possession of part of suit property is not entitled to claim any injunction against true owner. I am of the opinion that appellant in the present matter by way of her application pending before Trial Court under Order 39 Rule 1 and 2 CPC has interalia sought direction of stopping construction at suit property and during course of arguments, it becomes clear that appellant is seeking injunction only against illegal and unauthorized construction if any by respondent no. 1 with regard to suit property and every person has locus to raise his concern against any illegality being committed anywhere and locus of appellant therefore can not be challenged.
16. Counsel for appellant in order to show connection of appellant with suit property filed True Typed Copy one Assessment order purportedly filed by brother of appellant and respondent no.1 Mr. Satya Sheil Gupta on 26.08.1982 with Income Tax Department mentioning that appellant contributed in terms of money in construction of suit property initially. Counsel for appellant further filed true typed copy of one letter written by Manager of Udit Property Co. dated 09.03.1977 to appellant showing receipt of money for construction of suit property from appellant. Copy of one Electricity bill in name of appellant with regard to suit property was also filed by counsel for appellant (Admitted by counsel for respondent no.1 during course of arguments) in order to show connection of appellant with suit property. Counsel for respondent no.1 to this submitted that the documents are not admitted by respondent no.1 except electricity bill MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 13 of 16 and that the documents are executed by third parties and not by respondent no.1. Counsel for appellant submitted that at this stage only prima facie view is to be taken by the court and at the stage of grant of temporary injunction, no mini trial is to take place.
17. Counsel for appellant filed judgment in case titled as "Anand Prasad Agarwalla Vs. Tarkeshwar Prasad and Ors. MANU/SC/0350/2001 " in which Hon'ble Apex Court has held as below:
"It may not be appropriate for any Court to hold mini trial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser".
18. I find force in submissions made by counsel for appellant in this regard in view of law as laid down in Anand Prasad Agarwalla's case (Supra).
19. Certain other judgments were also filed by counsel for appellant with regard to grant of injunction but as application under order 39 rule 1 and 2 CPC has not been disposed of by Trial Court, I am of the view that the said judgments are not necessary to be discussed at this stage. One judgment has been filed by respondent MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 14 of 16 no. 1 in case titled as " Sree Jain Setambar Terapanthi Vid... Vs. Phundan Singh and Ors. Appeal (Civil) 730 of 1999" which has been taken care of as reasons have been assigned to arrive at conclusion arrived at in present appeal.
20. In view of discussion as made above, I am of the view that Trial Court failed to take into account various irreconcilable reports filed on behalf of respondent no. 2 before Trial Court showing status of construction in suit property and passed impugned order in haste. Impugned order dated 28.01.2017 is therefore perverse and can not be sustained and therefore set aside. Appeal filed by appellant is partly allowed to the extent that impugned order dated 28.01.2017 is set aside so far as it concerns refusal of grant of stay to appellant. So far as other relief claimed by appellant to declare ongoing construction as illegal, I am of the view that Trial Court may decide the issue taking into account stand of respondent no. 2 as directed by Trial court vide impugned order. Respondent no.2 is directed to file fresh status report regarding construction by respondent no. 1 over suit property and also directed to reconcile different reports given by its JE in view of discussion made in this judgment. All parties are directed to appear before Trial Court for remaining arguments on interim application on 07.03.2017 at 12.30 PM. Trial Court is directed to decide interim application of appellant within one week of parties making appearance before it so that order passed in the present appeal does not operate to detriment of any party as complete factual picture in view of non appearance of respondent no. 2 was not brought before this Court. Till MCA No. 10/17 Promila Gupta Vs. Shobha Sanwalka Page 15 of 16 trial court decides interim application of appellant, status quo regarding construction is to be maintained by respondent no.1.
21. Copy of judgment be sent to respondent no. 2 for compliance. However, it is made clear that Trial Court shall decide interim application of appellant on merits without being influenced by any observation made in this order.
22. An application was filed by appellant u/s 151 r/w provisions akin to Order 39 Rule 1 & 2 CPC during pendency of present appeal but the application stands disposed of as appeal itself has been disposed of.
23. Appeal file be consigned to record room.
24. TCR be sent back to Trial Court along with copy of this judgment.
Announced in the open Court (Sonu Agnihotri)
on 3rd March, 2017 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
MCA No. 10/17
Promila Gupta Vs. Shobha Sanwalka Page 16 of 16