Delhi District Court
Smt. Saroj vs Municipal Corporation Delhi on 28 January, 2013
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 139/10
Unique Case ID No. 02402C0111032010
Smt. Saroj
w/o Shri Ramdas
r/o D29, Gali no.8,
Jagjit Nagar, Delhi110053.
........... Plaintiff.
VERSUS
1. Municipal Corporation Delhi
Through its Commissioner,
Town Hall, Delhi.
2. Shri Dinesh
s/o Shri Gauri Shanker
r/o D56, Gali no.8, Jagjit Nagar,
Delhi110053.
3. Shri Prem Shanker
s/o Shri Gauri Shanker
r/o D56, Gali no.8, Jagjit Nagar,
Delhi110053.
......... Defendant.
Date of institution of the suit : 22.04.2010
Date on which order was reserved: 16.01.2013
Date of decision : 28.01.2013
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that plaintiff is the owner and occupant of property / house bearing no. D29, gali no.8 Jagjit Nagr, Delhi53. It has been further stated that defendants no.2 and 3 are the occupants of house bearing no. D56, gali no.8, Jagjit Nagar, Delhi53. It has been further stated that in between the two houses, there is a gali / passage of about 5 feet width which is a public land. It has been further stated that both the properties have been shown in the site plan, the common passage/gali has been shown in green colour in the site plan. It has been further stated that the gali opens in the Eastern side towards the other gali. It has been further stated that the defendants no.2 and 3 have affixed a gate towards the Eastern side of the gali and locked the same. It has been further stated that defendants no.2 ad 3 have also illegally and unlawfully projected a CHHAJJA about 34 feet width in their house towards the gali which has covered the entire gali and blocked the sunlight and air. It has been further stated that the CHHAJJA has been extended / projected by defendants no.2 and 3 with the sole motive to usurp the gali as their own exclusive property. It has been further stated that defendants no.2 and 3 are locking the iron gate, creating hindrance and obstacles in the free use of the gali. It has been further stated that the plaintiff lodged the complaint with defendant no.1 i.e. the MCD on 07.10.2009 but no action was taken by the MCD against defendant no.2 and 3 and hence the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed that a decree of mandatory injunction be passed against the defendants to demolish the CHHAJJA and to remove the iron gate from the gali. The plaintiff has also prayed for the costs of the suit as well.
3. Written statement has been filed on record by the defendant no.1 stating therein that the present suit is barred by section 477 and 478 of the DMC Act; the present suit is without any cause of action against the MCD; the plaintiff has not come to the court with clean hands. It has been further stated that there is a gate installed in the gali and MCD is taking the action to remove the said gate as per the program fixed. It has been further stated that the letter for providing adequate police force has already been sent to the concerned DCP vide letter dated 03.09.2010 by the MCD. It has been further stated that it was found that the plaintiff and the defendant both had projected the CHHAJJA against the municipal byelaws and appropriate action shall be taken as per the DMC Act. It has been further stated that the plaintiff is seeking the relief of declaration under the garb of the mandatory injunction and as such, the present suit is barred by section 41
(h) of the Specific Relief Act. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
4. Written statement has also been filed on record by defendants no.2 and 3 stating therein that the plaintiff has no locus stand to file the present suti; the present suit is without any cause of action; the plaintiff has not come to the court with clean hands because the plaintiff herself has encroached on the public land in the gali and illegally constructed a CHHAJJA which is liable to be demolished by the defendant no.1. It has been further stated that the plaintiff herself has illegally encroached upon the land in the gali and illegally constructed an iron JAALI gate and a CHHAJJA on the first floor which are clearly shown in the photographs filed by the plaintiff. Defendants no.2 and 3 have denied the projection of the CHHAJJA by them. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
5. Separate replications have been filed on record by the plaintiff to the separate written statements of the defendants, reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statements.
6. From the pleadings of the parties, the following issues were framed by this court vide orders dated 23.11.2010.
1) Whether the suit is barred by sections 477 and 478 of the DMC Act ? OPD1
2) Whether the plaintiff has illegally encroached upon the public land in the gali and illegally constructed 7 x 8' CHHAJJA as stated by defendants no.2 and 3 in para no. 4 of the preliminary objections ? OPD2 and 3
3) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for by the plaintiff in the plaint ? OPP
4) Relief.
EVIDENCE
7. The plaintiff has examined her husband Shri Ram Dass as her Special Power of Attorney as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his affidavit as Ex. PW1/A, the Power of Attorney in favour of PW1 as Ex. PW1/1, the Sale Deed as Ex. PW1/A, copy of the complaint to the MCD as Ex. PW1/2, the photograph as Ex. PW1/3, the site plan as Ex. PW1/4 and one more photograph as Ex. PW1/5.
8. In the cross examination PW1 has admitted it to be correct that no notice was given to the MCD prior to the filing of the present suit. By way of volunteer, PW1 has stated that a complaint was given to the MCD. PW1 has admitted it to be correct that the MCD has taken the action on the suit property and removed the iron gate. By way of volunteer, PW1 has stated that the gate was affixed by Dinesh Kumar. PW1 has admitted it to be correct that there is encroachment by way of projection of CHHAJJA by him as well as by defendants no.2 and 3. PW1 has admitted it to be correct that the MCD has taken the action but his grievance with respect to the removal of the gate stand as it is and the gate has not been removed by the MCD. PW1 was confronted with the photographs, three in number which have been filed by the MCD alongweith the ATR and the witness admitted that the photographs were of the disputed site. All the said three photographs were exhibited as Ex. PW1/D1. PW1 has further stated that at the time of filing of the present suit, his wife was a housewife. PW1 has further stated that his wife is uneducated and thats why she has appointed him as SPA to depose before the court. PW1 has further stated that he has purchased the house no. B29 as it is and it is in the same position as on date and the illegal CHHAJJA was already constructed by its previous owner. PW1 has admitted it to be correct that he has not mentioned regarding the illegal CHHAJJA constructed by him in his house in the plaint. PW1 has denied the suggestion that he has filed a wrong site plan.
9. The MCD has not led any evidence but defendant no.2 Shri Dinesh has examined himself as DW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the defendants no.2 and 3 in the written statement filed by them on record. He has filed on record his affidavit Ex. D2/D1.
10. In the cross examination, DW1 i.e. defendant no.2 has stated as under: "I know the contents of my affidavit Ex. D2/D1 very correctly. I am educated upto B. com. (second year). I am in service in the SBI Bank at the post of Assistant. I can understand and read English and Hindi both languages. I have signed all the affidavits filed in the court record after reading and understanding the same. I have not filed any application for correction in my father's name from Gauri Shankar to Pooran Singh till date. I came to know regarding the error in the name of my father since beginning but still I never pleaded regarding the correction of my father's name any time in the court.
The witness is shown a photograph showing the name plate on house no. D56, Jagjeevan Ram Marg, 3rd pushta, Usman Pur, Delhi and the witness has identified the house and stated that the house shown in the photograph is his house. The said photograph is hereby exhibited as Ex. D2W1/P1. I have not filed any document in the court to show that my father's name is Shri Pooran Singh. Volt. I have the identity card to show that the name of my father is Shri Pooran Singh but I have not brought today in the court any such proof. It is wrong to suggest that I want to play fraud with the court and the MCD and thats why, I am not disclosing the correct name of my father. The witness is shown a photograph Ex. PW1/3 in which he recognized the iron gate installed by him in the end of the gali. Volt. The witness has stated that the said gate has been installed by him in his own premises.
At this stage the witness is shown the site plan Ex. PW1/4. The witness has answered that he understands the said site plan. At this stage, the witness has stated that he cannot understand the site plan and as such, he is unable to tell as to whether the said site plan filed by the plaintiff is correct or incorrect as per the site. I cannot tell out of my memory as to whether I have stated in the written statement filed by me that the site plan Ex. PW1/4 is not correct. Volt. Because, the written statement filed by me in the court is in English language and I am not well conversant with English language.
It is wrong to suggest that the iron gate shown in the photograph Ex. PW1/D1 has been installed by me in the gali belonging to the government. Volt. The said gate has been installed by me in my own premises. I have not filed on record any documentary proof to show that the iron gate as aforesaid has been installed by me in my own premises. It is correct that the present suit has been filed by the plaintiff, for the purposes of removal of the said iron gate from the public gali. It is wrong to suggest that the said iron gate has been installed by me in the public gali in collusion with the MCD officials. It is correct that on 04.09.2010, the said iron gate was broken by the MCD officials. Again said, the MCD officials, on 04.09.2010, had not removed the said iron gate but only the upper portion was removed. It is wrong to suggest that the said iron gate was again installed by me after its removal by the MCD officials. It is correct that the said gate has been chained by me. It is correct that the width of the portion where the said iron gate has been installed, is around 5 feet. The width of the CHAJJA is only 2.5 feet. The house in which I reside is built upto three storey. The CHAJJA of width 2.5 feet over the portion of the iron gate has been built up by me. The premises behind the said iron gate the width of which is 5 feet has been used by me for my personal purposes. I do not let any other person to come and go in the said portion. It is wrong to suggest that I have illegally encroached the public gali in collusion with the MCD officials. It is wrong to suggest that I have filed a false affidavit or that I am deposing falsely."
11. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties. The plaintiff and the defendants no.2 and 3 as well, have also filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties. The MCD has not filed on record any written final arguments.
12. My issuewise findings on the abovesaid issues are as under:
Issues No.1.
In the written final arguments Ld. Counsel for the plaintiff has argued that the present suit is a suit for injunction simplicitor and thats why no notice was required to be issued to the MCD u/s 478 of the DMC Act. Admittedly, as has been admitted by PW1 in the cross examination, notice was given to the MCD prior to the filing of the present suit. It has to be kept in mind that present suit is a suit for mandatory injunction and not a suit for permanent injunction. No application for interim application was filed by the plaintiff alongwith the plaint. The only relief sought for by the plaintiff in the present suit is that the illegal gate installed by the defendants no.2 and 3 in the public gali and the illegally projected CHHAJJA raised by defendants no.2 and 3 be removed. Section 478 sub Section 3 thereof, of the DMC Act 1957 specifically provides that no notice as required in the sub Section 1 and 478 of the DMC Act shall be necessary to be given in a suit in which the only relief claimed is an injunction of which the objection would defeated by the giving of the notice or the postponement of the institution of the suit. In the instant suit, the only relief claimed by the plaintiff is the removal of the illegally installed gate and illegal CHHAJJA raised by defendants no.2 and 3 as alleged by the plaintiff. I am of the opinion that since the present suit is not a suit for permanent injunction and no interim application was filed by the plaintiff, the plaintiff was under
an obligation to serve the notice to the MCD u/s 478 of the DMC Act prior to the institution of the present suit. As such, I am the opinion that present suit is hit by section 478 of the DMC Act. Accordingly issue no.1 is decided against the plaintiff.
Issue no.2.
The onus to prove this issue is upon the defendants no.2 and 3. In the written statement the defendants no.2 and 3 have taken the categorical stand that the plaintiff has not come to the court with clean hands because the plaintiff herself has encroached upon the public land by illegally constructing a CHHAJJA which is liable to be demolished by the MCD. The MCD in the written statement has also stated that the plaintiff and the defendant as well have projected the CHHAJJA against the municipal byelaws and appropriate action shall be taken as per the DMC Act. In the cross examination PW1 as well, has categorically admitted that there is encroachment by way of projection of CHHAJJA by him as well as by defendants no.2 and 3. As such, I am of the opinion that defendants have been able to prove the issue no.2 in their favour and accordingly, issue no.2 is decided in favour of defendants no.2 and 3 and against the plaintiff. Issue no.3.
In the written final argument filed on record by the plaintiff, Ld. Counsel for the plaintiff has relied upon the cross examination of PW1 and has argued that the plaintiff has been able to prove her case. Ld. Counsel for the plaintiff has relied upon the document Ex. PW1/A i.e. copy of the Sale Deed, Ex PW1/3 i.e. photograph of illegal iron gate installed by defendants no.2 and 3, Ex. PW1/4 i.e. the site plan and Ex. PW1/5 i.e. the photograph of the iron gate and the CHHAJJA. It has been further argued that DW1 in the cross examination has admitted that MCD officials on 04.09.10 have not removed the iron gate but only upper portion was removed. It has further argued that the plaintiff has been able to prove her case and as such, it has been prayed that the suit of the plaintiff be decreed.
13. Whereas in the written final arguments filed on record by defendants no.2 and 3 it has been argued that the plaintiff has failed to appear in the witness box and PW1 who is the husband / attorney of the plaintiff cannot depose on behalf of the principal and as such, his evidence cannot be looked into by the court. It has been further argued that PW1 in the cross has admitted that the plaintiff has also constructed an illegal CHHAJJA and as such, the suit of the plaintiff cannot be decreed. It has been further argued that the plaintiff has utterly failed to prove on record that the passage is the public gali. It has been further argued that the MCD has also failed to prove on record to show the existence of the public gali. It has been further argued that the site plan filed by the plaintiff is incorrect. It has been prayed by the defendants no.2 and 3 that suit of the plaintiff be dismissed.
14. First of all, let me deal with the submission of Ld. Counsel for the defendants no.2 and 3 that the plaintiff has failed to prove that the alleged passage is the public land / gali and the site plan filed by the plaintiff is not correct as per the site.
15. It is not in dispute that the plaintiff has examined her husband / attorney as PW1. The Hon'ble Supreme Court of India in the authority Cited as AIR 2005 Supreme Court 439 titled as Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd., wherein it has been held as under: "Civil P.C. (5 of 1908) O. 3, Rr. 1, 2 Power of attorney holder Cannot depose in place and instead of principal."
16. In the instant suit, in the cross examination PW1 has stated that the plaintiff is uneducated and thats why she has appointed him as her SPA to depose before the court. The ground of illiteracy as taken by the PW1 is the only ground taken by the plaintiff for non examination of the plaintiff. I am of the opinion that only on the basis of the said ground, the examination of PW1 cannot be accepted in the light of the ratio of the above stated authority of the Hon'ble Supreme Court of India. I have no hesitation to hold that defendants no.2 and 3 has rightly pointed out that the plaintiff has failed to appear in the witness box and as such, the testimony of PW1 cannot be accepted because PW1 i.e. the SPA of the plaintiff cannot depose on behalf of the principal.
17. Furthermore, it has to be seen that the present suit is a suit for mandatory injunction. Needless to mention that injunction is a discretionary remedy. Who does not come to the court with clean hands and one who does not do the equity first, is not entitled to seek the equitable relief of injunction. PW1 in the cross has categorically admitted the encroachment by way of projection of the CHHAJJA by him as well as by defendant no.2 and 3. I have no hesitation to hold that the plaintiff has not come to the court with clean hands because in the cross examination PW1 has categorically admitted that he has not mentioned regarding the illegal CHHAJJA constructed by him in his house, in the plaint.
18. In the light of the above discussion, I am of the opinion that the plaintiff has not been able to prove his case and accordingly, the issue no.3 is decided against he plaintiff. Relief.
In the light of my findings upon the issues no.1 and 3 the present suit of the plaintiff is hereby dismissed but with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 28th day of January 2013 JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
KARKARDOOMA COURTS (NORTH EAST)
Suit No. 139/10
Smt. Saroj
w/o Shri Ramdas
........... Plaintiff.
VERSUS
1. Municipal Corporation Delhi
Through its Commissioner,
Town Hall, Delhi.
2. Shri Dinesh
s/o Shri Gauri Shanker
3. Shri Prem Shanker
s/o Shri Gauri Shanker
......... Defendant.
O R D E R
Vide this order, I shall dispose off an application under section 151 CPC filed by defendants no.2 and 3 for removal of the illegal encroachment done by the plaintiff.
2. In the said application, the defendants no.2 and 3 have stated that in the cross examination, PW1 i.e. SPA of the plaintiff categorically admitted that there is encroachment by way of projection of CHHAJJA by him as well as by defendants no.2 and 3. It has been further stated that illegal projection of CHHAJJA on the public land is liable to be removed. It has been prayed that the MCD be directed to remove the projection of illegal CHHAJJA from the property of the plaintiff.
3. No reply to the said application has been filed by the plaintiff. However, written arguments have been filed on record by the plaintiff on the abovesaid application.
4. I have carefully gone through the written arguments filed on record by the plaintiff as well as by Ld. Counsel for the defendants no.2 and 3.
5. First of all, it has to be seen that the said application u/s 151 CPC was filed by the defendants no.2 and 3 when the matter was already fixed for final arguments. Vide my separate judgment and decree of dated 28.01.2013, the suit of the plaintiff has already been dismissed.
6. It has to be seen that the defendants no.2 and 3 in the written statement, have categorically mentioned that the plaintiff is also guilty of encroachment by way of projection of CHHAJJA. However, no counter claim was filed by the defendants no.2 and 3 alongwith the written statement. As such, I am of the opinion that the defendants no.2 and 3 have failed to file on record any counter claim and to seek the relief as has been sought for by the defendants no.2 and 3 in the present application, the present application cannot be allowed. The settled law is that the counter claim has to be treated like a plaint. But in the written statement, no counter claim was filed by the defendants no.2 and 3, I am of the opinion that if a party fails to seek the relief in the main suit, the same cannot be granted by way of interim application. Accordingly, I hereby dismiss the present application u/s 151 CPC filed by the defendants no.2 and 3.
Announced in the open court ( RAJ KUMAR)
on this 28th day of January 2013. JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.