Delhi District Court
Manju Rani vs The Commissioner South Delhi Municipal ... on 16 March, 2026
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
RCA DJ ADJ No. 1197/2024
CNR No. DLSW010114472024
IN THE MATTER OF:
MANJU RANI
w/o Sh Satya Prakash Singh
r/o Flat no. 2, Leela Building,
Barlote Nagar, Mumrudi, Dehu Road,
Pune, Maharashtra - 412101
Through her Attorney
Sh Satya Prakash Singh ... Appellant
versus
1. THE COMMISSIONER
South Delhi Municipal Corporation
Civic Centre, Minto Road, New Delhi.
2. THE DY. COMMISSIONER,
South Delhi Municipal Corporation
Rajouri Garden, New Delhi-110027.
3. THE ASST. ENGINEER (BUILDINGS)
South Delhi Municipal Corporation
Rajouri Garden, New Delhi-110027. .... Respondents
Date of institution of Appeal 26.11.2024
Date of order reserved: 19.02.2026
Date of pronouncement: 16.03.2026
JUDGMENT
The present Regular First Appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, assails the impugned judgment and decree dated 26.10.2024 passed by the Learned Additional Senior Civil Judge, South-West District, Dwarka RICHA GUSAIN SOLANKI RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 1/9 Digitally signed by RICHA GUSAIN SOLANKI Date: 2026.03.16 16:20:56 +0530 Courts, New Delhi, whereby the suit instituted by the appellant/plaintiff came to be dismissed. For the sake of clarity and to avoid any confusion, the parties shall hereinafter be referred to as per their status before the Learned Trial Court:
1. The case set up by the plaintiff before the Learned Trial Court was that property bearing No. RZ-48A, Gali No. 3, West Sagarpur, New Delhi (hereinafter referred to as the "suit property") is owned by her, having been purchased vide a registered sale deed dated 24.04.1973. It was averred that the plaintiff's husband was employed in a transferable job and, in the year 1988, discovered that one Shiv Prasad and Kishan Gopal had illegally taken possession of the suit property and raised a residential unit and certain shops thereon without any sanction from the MCD/defendants. It was further alleged that the said trespassers were creating third-party interests in the suit property. Consequently, the plaintiff instituted a civil suit for possession against the said trespassers in November 1998 (subsequently numbered as Suit No. 95251/16. The said suit was initially dismissed; however, upon remand, it was ultimately decreed on 17.04.2025 during the pendency of the present appeal.) It was further stated that during the pendency of the earlier suit, the trespassers did not disclose that they had raised unauthorised construction, and the plaintiff's husband came to know thereof only in July 2017. A complaint dated 19.08.2017 was thereafter lodged by the plaintiff with the defendants regarding the unauthorised construction; however, no action was taken. It was also averred that the plaintiff's husband requested the trespassers in September 2017 to vacate the suit property, but RICHA GUSAIN the same yielded no result. Consequently, the present suit was SOLANKI Digitally signed by RICHA GUSAIN SOLANKI RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 2/9 Date: 2026.03.16 16:21:01 +0530 instituted seeking a decree of injunction directing the defendants to ensure that no unauthorised or illegal construction is carried out at the suit property and to demolish the existing unauthorised construction.
2. The defendants filed their written statement contending, inter alia, that the suit was not maintainable in view of Section 10 CPC.
3. The plaintiff filed a replication reiterating and affirming the averments made in the plaint.
4. Vide order dated 17.07.2018, the Learned Trial Court framed three issues for adjudication:
"(i) Whether the plaintiff is entitled for a decree of permanent injunction in her favour and against the defendants, as prayed for? (OPP)
(ii) Whether the plaintiff is entitled for a decree of mandatory injunction in her favour and against the defendants, as prayed for? (OPP)
(iii) Relief."
5. Both parties led their respective evidence and, vide the impugned judgment and decree, the Learned Trial Court decided all the issues against the plaintiff.
6. Aggrieved by the said judgment and decree, the plaintiff has preferred the present appeal on various grounds which, for the sake of convenience, may broadly be classified into three principal heads.
7. The defendant/respondent has filed a reply to the appeal, supporting the impugned judgment and decree.
8. I have perused the entire record, heard Learned Counsel for the parties at length, and carefully considered the written RICHA GUSAIN submissions filed on their behalf. SOLANKI
9. The first ground of appeal is that the Learned Trial Court Digitally signed by RICHA GUSAIN SOLANKI RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 3/9 Date: 2026.03.16 16:21:06 +0530 failed to render a specific finding as to whether the construction raised on the suit property was authorised or unauthorised. It is contended that PW-5 admitted that the suit property falls within an unauthorised colony.
10. I find that this ground of appeal does not advance the case of the plaintiff. During the course of trial, certain status reports were placed on record indicating the existence of unsanctioned construction over the suit property; however, that fact alone is not sufficient to entitle the plaintiff to the relief sought. Learned Counsel for the defendants has pointed out that the said status reports also record that the construction was approximately 18- 20 years old at the time of the field inspection conducted in 2018, and that there was no ongoing construction at that time. Under the provisions of the National Capital Territory of Delhi Laws (Special Provisions) Act, 2007, as extended from time to time, notwithstanding any judgment, decree or order of any court, status quo is required to be maintained in respect of encroachments or unauthorised developments, including unauthorised colonies, which were in existence as on 31.03.2002.
11. In the present case, the plaintiff has averred in the plaint that in the year 1988 her husband (who is also her Special Power of Attorney holder) discovered that Shiv Prasad and Kishan Gopal had taken illegal possession of the suit property and raised a residential unit and shops thereon. However, in an apparent attempt to overcome the bar of limitation, it is also averred that her husband came to know of the construction only in July 2017. This assertion is inherently implausible, particularly when the RICHA GUSAIN plaintiff has been in litigation in respect of the suit property since SOLANKI Digitally signed by RICHA GUSAIN SOLANKI RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 4/9 Date: 2026.03.16 16:21:10 +0530 1988 and the property is situated abutting the street, rendering it improbable that such construction would have gone unnoticed. Moreover, it is not the case of the plaintiff that the construction was raised after the institution of the suit for possession. Even the plaintiff's own witness has admitted that the alleged unauthorised construction existed in the year 1988.
12. This position gives rise to three consequences. First, the said construction would be entitled to protection under the National Capital Territory of Delhi Laws (Special Provisions) Act, 2007.
13. Secondly, the present suit for injunction is barred by Order II Rule 2 CPC, as the plaintiff had already sought similar reliefs against the trespassers in her earlier suit for possession. In Gurbux Singh v. Bhooralal, 1964 SCC OnLine SC 101 the Constitutional Bench of the Hon'ble Supreme Court emphasised that the "cause of action" comprises the bundle of facts which the plaintiff alleges in support of the right to the relief claimed. The Court further laid down that a defendant invoking the bar under Order II Rule 2(3) CPC must establish: (a) that the second suit is founded on the same cause of action as the earlier suit; (b) that in respect of that cause of action the plaintiff was entitled to more than one relief; and (c) that the plaintiff, being so entitled and without obtaining leave of the Court, omitted to claim the relief subsequently sought in the second suit.
14. In the present case, the plaintiff had instituted a suit in 1988 on substantially the same factual foundation against the trespassers, seeking possession of the suit property, restraint against creation of third-party interests, restraint against raising RICHA construction, and removal of the construction already raised. GUSAIN SOLANKI During the interregnum, when the suit for possession stood Digitally signed by RICHA GUSAIN SOLANKI RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 5/9 Date: 2026.03.16 16:21:15 +0530 dismissed and had not yet been restored, the plaintiff instituted the present suit seeking similar injunctive reliefs against the MCD/its officials. As Order II Rule 2 CPC does not stipulate that the earlier suit must have been finally disposed of for the bar to operate, the present suit, culminating in the impugned judgment, was in any event barred.
15. Thirdly, the suit is barred by limitation. Though improperly drafted as one for "permanent injunction... directing the defendants to ensure that no unauthorised and illegal construction be allowed," the substance of the relief sought is that of a mandatory injunction. The right to sue for such relief accrued in 1988, when the plaintiff/her SPA admittedly became aware of the alleged unauthorised construction. As the Limitation Act, 1963 does not prescribe a specific period for a suit seeking mandatory injunction, such a claim would fall under Article 113 of the Schedule thereto, which provides a limitation period of three years. Consequently, the limitation period commenced in 1988.
16. Accordingly, the first ground of appeal is of no assistance to the plaintiff.
17. The second ground urged by the plaintiff is that the Learned Trial Court failed to appreciate that, in terms of Sections 343, 344 and 345A of the DMC Act, the defendants were under a statutory obligation to take action against unauthorised and illegal construction, and that there was no necessity to implead the persons who had undertaken such construction. It is submitted that the relief of mandatory injunction was directed RICHA solely against the defendants and, therefore, private parties were GUSAIN SOLANKI not required to be impleaded.
Digitally signed by RICHA GUSAIN SOLANKI Date: 2026.03.16RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 6/9 16:21:19 +0530
18. The aforesaid contention is devoid of merit. It is the admitted case of the plaintiff that trespassers have been in possession of the suit property since 1988. The suit for possession instituted by the plaintiff was still pending at the time when the impugned judgment was delivered by the Learned Trial Court. As the plaintiff's rights over the suit property had not yet been conclusively adjudicated at that stage, the Learned Trial Court rightly held that the suit was bad for non-joinder of Shiv Prasad and Kishan Gopal. The plaintiff could not have sought demolition of construction allegedly raised by these persons without impleading them as defendants, as they were necessary and proper parties to the proceedings.
19. In Mumbai International Airport Private Limited v.Regency Convention Centre and Hotels Private Limited & Others, (2010) 7 SCC 417, the Hon'ble Supreme Court has observed as under:
"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made."
20. In the suit before the Learned Trial Court, the plaintiff was required to establish her right, title and interest in the suit property and to demonstrate in what manner she was aggrieved by the construction allegedly raised thereon. Though the relief of injunction was sought against a governmental authority/its officials (the defendants herein), the persons directly and substantially affected by any such decree would have been the RICHA alleged trespassers. In these circumstances, the present ground of GUSAIN SOLANKI Digitally signed by RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 7/9 RICHA GUSAIN SOLANKI Date: 2026.03.16 16:21:24 +0530 appeal is devoid of merit.
21. The third ground urged by the plaintiff is that the Learned Trial Court failed to appreciate that DW-1 was a stranger to the matter, as he was neither posted in the concerned area nor possessed any personal knowledge of the facts in issue.
22. I am unable to accept the aforesaid contention. DW-1 was an official witness who deposed on the basis of official records maintained in the ordinary course of business. Although it is noticeable that portions of the affidavit of DW-1 travelled beyond the pleadings, even then the burden squarely lay upon the plaintiff to succeed on the strength of her own case and to establish her entitlement to the relief claimed.
23. During the course of appellate arguments, Learned Counsel for the plaintiff placed on record the judgment passed in the suit for possession. By virtue of the said judgment, the plaintiff has been granted a decree for possession of the suit property, along with a direction to the trespassers to remove any structure erected/constructed by them, in addition to other consequential reliefs.
24. I put a specific query to Learned Counsel for the plaintiff as to why the plaintiff seeks directions against the MCD when she may pursue execution of the decree passed in her favour in the earlier suit, or, upon obtaining possession of the suit property, herself remove the unauthorised construction in accordance with law. No satisfactory response was forthcoming. Instead, it was contended that it was the statutory duty of the MCD to remove the unauthorised construction and that the MCD ought to comply with the judgment and decree passed in the previous suit so as to RICHA GUSAIN assist the plaintiff in obtaining possession of the suit property. I SOLANKI Digitally signed by RICHA GUSAIN SOLANKI RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 8/9 Date: 2026.03.16 16:21:28 +0530 am unable to comprehend how, in the present proceedings, the MCD can be compelled to enforce a decree passed in a separate suit to which such directions were not addressed.
25. In view of the foregoing discussion, I find no illegality, perversity or infirmity in the impugned judgment and decree dated 26.10.2024 warranting interference by this Court.
26. For the reasons aforestated, the appeal stands dismissed with parties to bear their own costs.
27. Decree sheet be prepared accordingly.
28. File be consigned to record room only after due completion and necessary action.
29. A certified copy of this judgment be sent to the Ld Trial Court forthwith. Trial Court record be sent back.
RICHA Digitally signed by RICHA
GUSAIN SOLANKI
GUSAIN Date: 2026.03.16 16:21:34
SOLANKI +0530
Pronounced in the open court (RICHA GUSAIN SOLANKI)
on 16th March 2026 District Judge-02, South West
Dwarka Courts Complex
New Delhi
*Judgment announced post the transfer of the Presiding Officer in terms of the directions contained in order no. 09/D-3/Gaz1A/DHC/2026 dated 25.02.2026* RCA DJ ADJ 1197/2024 Manju Rani vs The Commissioner, SDMC page 9/9