Delhi District Court
Hari Singh vs Municipal Corporation Of Delhi on 17 August, 2011
IN THE COURT OF SH. GAUTAM MANAN:
ASCJJSCCGJ: (CENTRAL) DELHI.
CS no.: 458/08/96
1. Hari Singh
S/o Late Sh. Amar Singh
2. Vijay Kumar
S/o Late Sh. Amar Singh
3. Smt. Phoolwati
W/o Sri Hari Singh
All residents of
242, Gali Kandle Kasan,
Fateh Puri, Delhi - 110 006
.......Plaintiffs
V e r s u s
1. Municipal Corporation of Delhi
(Through its Commissioner),
Town Hall, Chandni Chowk,
Delhi - 110 006
2. Smt. Kamla Devi
3. Saroj Kumar
4. Yogender Kumar Jain
5. Vipit Lal Yadav
6. Jai Kishan (Deceased)
1. Poonam Devi
2. Raj Kumar
3. Sumit Kumar (Legal heirs of the deceased)
7. Murari Lal (Deceased)
1. Ms. Veena Rani
2. Surender Kumar
3. Naveen Kumar (Legal heirs of the deceased)
8. Mohan Lal (Deceased)
1. Deepak (Legal heirs of the deceased)
9. Mangal Sain (Deceased)
1. Sh. Ashok Kumar
2. Sh. Kanwal Jeet (Legal heirs of the deceased)
1 Suit No. 458/08 of 1996
10.Banarsi Dass
1. Smt. Shanti Devi
2. Sh. Chander Prakash
3. Sh. Manoj Kumar
4. Smt. Jeevan Devi (Legal heirs of the deceased)
11.Sat Guru
12.Sat Narain (Deceased)
1. Sh. Dinesh Kumar
2. Sh. Pushpa Devi
3. Smt. Anita Devi (Legal heirs of the deceased)
13.Jai Narain
14.Sh. Kishan
1. Smt. Kusum Lata
2. Sh. Pradeep Mohan
3. Sh. Vikas Mohan (Legal heirs of the deceased)
15.Vinod Kumar S/o Late Sh. Nathu Lal
16.Kamla Devi W/o Late Sh. Kishori Lal (Deceased)
1. Sh. Madan Mohan
2. Sh. Ram Mohan (Legal heirs of the deceased)
17.Gayatri Devi
18.Sanjay Kumar S/o Late Sh. Nathu Ram
19.Munesh Babu S/o Late Sh. Shanti Lal
20.Ramesh Kumar S/o Late Sh. Shanti Lal
21.Ram Saran @ Rama Shankar
22.Jai Siya Ram @ Jai Sriram S/o Sh. Ram Dayal
1. Smt. Shanti Devi
2. Sh. Sat Prakash
3. Sh. Sriparkash
4. Smt. Guddo Devi (Legal heirs of the deceased)
23.Jai Dayal S/o Sh. Ram Dayal
All residents of
H. No. 242, Gali Kandle Kasan,
Fateh Puri, Delhi - 110 006 .......Defendants
Suit for Mandatory Injunction
Institution of Suit : 13.09.96
Order Reserved on : 20.07.11
Judgment pronounced on : 17.08.11
2 Suit No. 458/08 of 1996
JUDGMENT
1. The plaintiffs have filed the present Suit for Mandatory Injunction on averments that they are absolute owners of property bearing no. 242, Gali Kandle Kasan, Fateh Puri, Delhi - 110 006 ( hereinafter referred to as suit property) which is a multistoreyed building having many rooms, toilets and kitchen. It has been stated that there are about 27 tenants in the suit property who are living with their families and the entire property is in dangerous condition which may fell at any point of time. It has been stated that the plaintiffs being vigilant citizens are requesting the defendant, MCD to declare the suit property dangerous and to demolish the entire building under the Delhi Municipal Corporation Act so that the precious lives of innocent of persons can be protected but the MCD is not paying any heed to the request plaintiffs.
2. The plaintiffs have averred that they have written letters on 27.03.95 and 07.08.95 to the MCD and despite the letters no action has been taken by MCD as such it has been prayed that a decree of mandatory injunction be passed in favour of plaintiff 3 Suit No. 458/08 of 1996 thereby declaring the suit property as dangerous and be demolished. It has also been stated that on 31.08.96 a portion of the roof of the said property had fallen down and in this regard a DD No. 44B dated 31.08.96 was also got registered in the PS Lahori Gate.
3. The MCD filed its Written Statement wherein it has been stated that the suit of the plaintiff is barred U/s 477/478 of the Delhi Municipal Corporation Act. On merits it has been stated that the suit property was inspected by it's officials and during the inspection it was found that the suit property is a multistoreyed building consisting of four floors and all the floors are occupied by owners and tenants. It has been stated that the building is in a ruinous condition and most of the portion of the building is repairable and there is no eminent danger or likelihood for falling of the building.
4. During the proceedings of the case an application U/o I R 10 CPC was filed on behalf 23 applicants on ground that they are occupants and tenants in the suit property and therefore are necessary parties to the present suit. The application of the applicants was allowed and they were impleaded as parties to the present suit as defendants no. 2 to 24.
4 Suit No. 458/08 of 1996
5. The defendants no. 2 to 24 in their written statement submitted that the plaintiffs have no locusstandi to file the present suit as they are not the owners of the suit property and no right, title and interests vests in the plaintiffs in respect of the suit property. The defendants denied that no portion fell on 31.08.96 and stated that the suit property is not in dilapidated condition. The defendants prayed for the dismissal of the suit.
6. On pleadings of the parties following issues were framed on 15.03.01 which are as under :
1. Whether the suit is bad for want of notice U/s 477/478 of DMC Act?
2. Whether the plaintiff is entitled to the relief of mandatory injunction as claimed?
3. Relief.
7. The plaintiffs in order to prove their case have examined Sh. Hari Singh as PW1. The PW1 deposed that he is one owner of 1/5 th portion of the suit property and another 1/5th is owned by his wife and 3/5th is owned by his brother. The plaintiff no.1 deposed that his wife as well as brother have executed power of attorney in his favour to depose on their behalf. The witness 5 Suit No. 458/08 of 1996 deposed that he is residing in one portion of the suit property and there are total 27 tenants, out of whom four have already vacated the premises. The witness deposed that the suit property is in dilapidated condition and in this regard he has sent a letter dated 24.03.95 to Commissioner, MCD which is Ex.PW1/1 and another letter dated 27.03.95 to SHO Ex.PW1/2.
The PW1 also proved letters Ex.PW1/3 to 9. It has been deposed that on 31.08.96 some portion of the property fell down and in this regard he reported the matter to PS Lahori Gate vide DD No. 44B which is Ex.PW1/10. The witness deposed that suit property is an old construction and is liable to be demolished. During his crossexamination PW1 deposed that he is in possession of 13 rooms in the suit premises and admitted that he had not filed any site plan on record showing the dangerous position. The witness admitted that he had not got the suit property checked and examined by an Engineer or Architect and he has himself observed that the suit property is in a dangerous condition.
8. In defence, the defendants/tenants have examined six witnesses and the defendant no.1, MCD has examined one witness namely Sh.Sharafat Ali, A.E (City Zone).
6 Suit No. 458/08 of 1996
9. The defendants have examined Sh. Vinod Kumar as DW1,Sh. Munesh Babu as DW2, Sh. Sanjay Kumar as DW3, Sh. Satguru as DW4, Sh. Satya Narayan as DW5 and Sh. Ramesh Kumar as DW6. All these witnesses tendered their examination in chief by way of their affidavits. All of them in their affidavits have deposed that the plaintiffs are not the owners of the suit property and this property is owned by one Sh. Murli Sharma and the plaintiffs are simply landlords of the suit property. The defendants denied that the suit property is in dangerous condition and is likely to fell at any moment. Rather, it has been deposed that the suit property is in sound, stable and strong condition. It has been deposed that the plaster of the suit property from ground floor to top floor is very strong and even a nail cannot be poked easily and the structure condition of the building is also very strong and there is no question that the building is dangerous.
10.In his examination in chief the witness from MCD Sh. Sharafat Ali, A.E (City Zone) has deposed that the during the inspection by the MCD it was noticed that the impugned property is big multistoreyed building consists of ground floor, first floor and second floor and part of the third floor. All the floors of the 7 Suit No. 458/08 of 1996 property were occupied by the owner as well as tenants. The said building is not in a ruinous condition and most of the portion of the building is in repairable condition. However, some portion at ground floor, first floor and second floor is in dangerous condition but at that time there was no imminent danger or likelihood of falling of the building. It has been deposed that the occupier / owner of the building has been repeatedly asked to repair the building as per the clause 6.5.1. of B.B.L. The witness deposed that on 27.04.10 the property was again inspected by JE of the MCD and it was revealed that the property is in dilapidated condition and but there is no imminent danger to life and property. Despite opportunity the witness from the MCD was not crossexamined and his testimony remained unrebutted and unchallenged.
11.The issue wise findings are as under :
12.ISSUE NO.1 : Whether the suit is bad for want of notice U/s 477/478 of DMC Act? The plaintiffs during the course of trial have proved various letters such as Ex.PW1/1 to Ex.PW1/8 in order to prove that before instituting the present suit they have issued a notice to the defendants as per the provisions of Section 8 Suit No. 458/08 of 1996 477/478 Delhi Municipal Corporation Act. In view of the fact that the plaintiffs have been able to prove the aforesaid letters as such it cannot be concluded that the suit is bad for want of of notice U/s 477/478 of DMC Act. Accordingly, the issue is answered in favor of the plaintiffs.
13. ISSUE NO. 2 : Whether the plaintiff is entitled to the relief of mandatory injunction as claimed? The plaintiffs in order to prove their entitlement of the relief of mandatory injunction has only examined plaintiff no.1 as PW1. The case of the plaintiffs is that the suit property is in a very dilapidated condition and the condition of the suit property is such that its walls, plaster are eaten by ants and the look of the building can tell the dangerous condition of the suit property which fell at any point of time. But the plaintiffs in order to prove their allegations have not filed any photographs on record in order to show before the Court the condition of the building.
9 Suit No. 458/08 of 1996
14.More so, the PW1 during the course of his crossexamination has categorically deposed that he has not got the property inspected and examined by any Engineer or an Architect. The plaintiffs have also not examined any other witness which could suggest that the structure of the suit property is weak or is in damaged condition. There is absolute no evidence led on behalf of the plaintiffs which could establish the claim of the plaintiffs that the suit property is in dangerous condition and is likely to fall.
15.On the other hand the defendants in their testimony have categorically deposed that they are residing in the suit property and which is not in a dangerous condition. Moreover, the witness from the MCD, D1W1 Sh. Sharafat Ali, A.E. (City Zone) categorically deposed in his affidavit that the suit property is in repairable condition and there is no imminent danger or likelihood for falling of the building. The testimony led on behalf of the MCD has also gone unrebutted and unchallenged and there is no crossexamination of witness on behalf of plaintiff. Thus, in view of the evidence led on behalf of parties I am of the considered opinion that the plaintiffs have miserably failed to prove on record that the suit property is in dangerous condition and is likely to fell down. As such the issue stands answered against the plaintiffs and in favour of the defendants. 10 Suit No. 458/08 of 1996
RELIEF: In the light of the aforesaid discussions,
16.ISSUE NO. 3 :
it is accordingly held that the plaintiffs are not entitled for the relief claimed by them in the present suit. Accordingly, the suit of the plaintiff seeking decree of mandatory injunction stands dismissed.
No orders as to cost.
Decree sheet be drawn.
File be consigned to Record Room.
Announced in the open Court on 17th August 2011 (Gautam Manan) ASCJ : Central : Delhi 11 Suit No. 458/08 of 1996 CS no.458/08 of 1996 Hari Singh & Ors. Vs MCD & Ors.
17.08.2011 Present: None.
Vide separate judgment, plaintiffs are not entitled for the relief claimed by them in the present suit. Accordingly, the suit of the plaintiff seeking decree of mandatory injunction stands dismissed.
No orders as to cost.
Decree sheet be drawn.
File be consigned to Record Room.
(Gautam Manan) ASCJ : Central : Delhi 17.08.2011 12 Suit No. 458/08 of 1996