Delhi District Court
Rohini Courts vs ) Sh. Piyush Thakur on 9 May, 2011
1
IN THE COURT OF MS. SMITA GARG, JSCC/ASCJ(NW)
ROHINI COURTS, DELHI
Suit No. 353/08/02
In re:
Sh. Anil
S/o Sh. Niamat Rai
R/o CA27A, Shalimar Bagh,
Delhi110088 ....Counter Claimant
Versus
1) Sh. Piyush Thakur
S/o Sh. Shyam Thakur
R/o CA26A, Shalimar Bagh,
Delhi110088
2) Municipal Corporation of Delhi
through its Commissioner
Town Hall, Chandni Chowk,
Delhi110006 ... Respondents
JUDGMENT:
1. This is a counter claim for the recovery of Rs. 2,06,000/ and mandatory injunction.
2. The brief background which led to the present claim is that on 10.07.2002, the respondent no1 instituted a suit for permanent injunction against the counter claimant herein and DDA averring that the counter claimant was threatening to open a door towards the main entrance of his house without permission from DDA thereby altering and changing the structure of the flat as prescribed and sanctioned by DDA. He prayed that the counter claimant and DDA be restrained from constructing the said door and that they be directed to restore the wall to its original position. Upon being served with summons, the counter claimant and DDA entered appearance.
2On 18.07.2002, the counter claimant filed his written statement and was directed to maintain the status quo. On 17.09.2002, DDA was ordered to be deleted from the array of defendants and in its place MCD was impleaded. On 17.09.2002, the counter claim was also filed by the counter claimant praying for a decree for mandatory injunction. On 16.02.2004, the suit for permanent injunction was dismissed in default. No order with regard to the counter claim was made and it was also consigned to record room. On 01.03.2004, an application U/s 151 CPC was preferred by the counter claimant for the restoration of the counter claim. The said application was allowed by the court on 21.02.2005. Thereafter, the counter claim was amended with the leave of the court on 02.05.2005.
The facts of the case as set out in the counter claim are that the counter claimant and the father of the respondent no1 purchased their respective residential properties from original allottees of DDA on "as is where is basis". The flat of the respondent no1 originally had its entrance adjacent to the main entrance of the block but the father of the respondent no1 shifted it to the main entrance of block no. 26 to the extreme left thereby occasioning a structural change in the premises with the intention to grab public land meant for the common use of the residents of block no. 26 & 27. This resulted in obstruction of the light and air to the kitchen and bed room of the counter claimant. It is stated that the respondent no1 was also doing business of button 3 manufacturing in the premises and had engaged a substantial number of workers without verifying their identity and antecedents and the said workers used to peep into the kitchen and bed room of the counter claimant posing a threat of theft. The respondent no1 was repeatedly requested to desist from his illegal activities but he did not pay any heed. According to the counter claimant, the respondent no1 not only indulged in all sorts of vandalism including smashing of cement sheet/bench causing instantaneous loss of Rs. 1000/, but also caused anguish, pain, mental torture and loss of business to him in attending the court for about two years. It is stated that the temporary injunction obtained by the respondent no1 on false ground also caused wastage of the construction raw material of Rs. 5000/and loss of labour charges paid by the counter claimant. It is further stated that the respondent no1 also resorted to calling the police time and again thereby exposing the honour and dignity of the counter claimant and his entire family to the open view of the neighbours, friends and relatives. The counter claimant has thus prayed the following reliefs:
1. that the respondents be directed to pull down the illegal construction and erection of entry gate and to remove the flower beds put by the respondent no1 by grabbing the public land
2. that a decree of Rs. 2,06,000/ be passed in favour of the counter claimant and against the respondent no1 on account 4 of loss of raw material of Rs. 5000/, Rs. 1000/ as damages for breaking cement sheet/bench and a sum of Rs. 2 lac on account of general damages.
3. In his written statement, the respondent no1 has taken the preliminary objections that the counter claimant has no locus standi to maintain the counter claim against the respondent no 1, that the claim is barred by Section 41 (h) of the Specific Relief Act, that the claim is barred by provisions of Limitation Act and that the claim has been under valued for the purpose court fees and jurisdiction. On merits, all the allegations made in the counter claim have been denied. It has been averred that the respondent no1 has no concern with the suit property and that no unauthorized construction has been made by him. The respondent no1 has denied that the entrance gate of the flat was shifted from its original position as alleged or that he was engaged in the business of button manufacturing. According to the respondent no1, since the counter claimant has himself admitted that he had arranged the building material for raising construction, the counter claim is without any cause of action and is liable to be dismissed. The respondent no2 MCD also filed its written statement and took the preliminary objections that the claim is barred by the provisions of section 477/478 of DMC Act for want of service of statutory notice and that it does not disclose any cause of action against MCD. On merits, it has been stated that the counter claimant had also carried out unauthorized construction in his property in the shape of one 5 tin shed in rear open space and a cub board in front open space at ground floor and that the said unauthorized construction had been booked vide file no. 327 B/UC/RZ/05 dated 01.09.2005. It has further been stated that a show cause notice was served upon the occupier and after following the due process of law, demolition order had been passed on 17.11.2004.
4. The counter claimant filed replication to the written statement of the respondents traversing the averments made therein and reiterating the averments of the counter claim.
5. On 17/01/2009, following issues were framed by the court:
1. Whether the defendant no1 is entitled to the relief of Mandatory Injunction as prayed for ? OPD1
2. Whether the defendant no1 is entitled to a decree for an amount of Rs. 2,06,000/ as prayed for ? OPD1
3. Whether the counter claim is barred U/s 477/478 of DMC Act ? OPD2
4. Whether the counter claim is without any cause of action against defendant no2 ? OPD2
5. Whether the defendant no1 has locusstandi to file his counter claim ? OPP
6. Whether the counter claim is barred by section 41 (h) of Specific Relief Act? OPP
7. Whether the counter claim is barred by limitation?OPP
8. Whether the counter claim has been under valued?OPP
9. Relief 6
6. The counter claimant appeared in the witness box as DW1. He led evidence on affidavit wherein he has supported the averments of the counter claim. He also examined his elder brother, Sh. Ashok Kumar and his friend/neighbour, Sh. Anil Kumar as DW1A and DW1B respectively. On the other hand, the respondent no1 has examined himself as PW1. He has also led evidence on affidavit and has proved the site plan filed by him in the suit for permanent injunction as Ex. PW1/1. No evidence has been led by respondent no2 MCD.
7. I have heard the counsel for the parties and perused the record.
8. My findings on the issues are as under: Issue No. 8 " Whether the counter claim has been under valued?OPP"
One of the preliminary objections raised by the respondent no 1 in his written statement is that the claim is under valued for the purpose of court fees and jurisdiction. This is a counter claim for recovery of Rs. 2,06,000/ and mandatory injunction. The counter claimant has affixed ad valorem court fees for the relief of recovery of Rs. 02,06,000/. He has valued the relief of mandatory injunction at Rs. 130/ and has affixed the court fees of Rs. 13/ for the same. The valuation of both the reliefs and the court fees paid on the same by the counter claimant are in accordance with the provisions of Suit Valuation Act, 1887 and the Court Fees Act, 1870. The counsel for the 7 respondent no1 has failed to point out any discrepancy in the valuation of the reliefs and the court fees affixed by the counter claimant. Accordingly, the present issue is decided in favour of the counter claimant and against the respondent no1.Issue No. 7
" Whether the counter claim is barred by limitation?OPP"
In the written statement, the respondent no1 has taken a preliminary objections that the counter claim is barred by limitation. However, the counsel for the respondent no1 has failed to point out as to how the claim can be said to have been filed beyond the period of limitation. In the counter claim, twin reliefs have been sought. According to the counter claimant, the cause of action arose in his favour for seeking the relief of mandatory injunction on 03.06.2002 when the respondent no1 shifted the main entrance of his flat by encroaching upon the public land and for the relief of damages on 18.07.2002 when the respondent no1 succeeded in obtaining the temporary injunction on false ground from the court. The periods of limitation for a suit for mandatory injunction and a suit for damages for injury caused by an injunction wrongfully obtained are prescribed by the Article 113 and Article 90 respectively of schedule to the Limitation Act, 1963 as three years from the date of accrual of right to sue and the date of discharge of injunction order. Since both the reliefs have been sought by the counter claimant within three 8 years, the counter claim can not be said to be barred by limitation. The above issue is therefore decided in favour of the counter claimant and against the respondent no1.
Issue No. 6"Whether the counter claim is barred by section 41 (h) of Specific Relief Act? OPP"
This issue has been framed in view of the preliminary objection raised by the respondent no1 in his written statement. Section 41(h) of the Specific Relief Act provides that an injunction can not be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. The counsel for the respondent no1 has contended that instead of filing the counter claim, the counter claimant could have approached the respondent no2 MCD for the removal of the alleged encroachment upon the public land and therefore, the counter claim is barred b y Section 41(h) of Specific Relief Act. The contention of the counsel for the respondent no1 is devoid of merits. In the present case,, the counter claimant has not only sought the relief of mandatory injunction but has also claimed damages to the tune of Rs. 2,06,000/. Considering the reliefs claimed, it can not be said that any other equally efficacious relief could have been obtained by any other usual mode of proceeding by the counter claimant. The above relief is accordingly decided in favour of the counter claimant and against the respondent no1.
9 Issue No. 5"Whether the defendant no1 has locusstandi to file his counter claim ? OPP"
The respondent no1 has alleged in his written statement that as he is neither the owner of the property nor has any concern with the same, the counter claim is not maintainable against him. It is a matter of record that the present counter claim has been preferred in the suit for permanent injunction filed by the respondent no1. The counter claimant has not only sought the relief of mandatory injunction but has also claim compensation for the injury caused to him by the temporary injunction obtained by the respondent no1. Since the respondent no1 approached the court asserting violation of his easementary rights and obtained temporary injunction against the counter claimant, it can not be said that the counter claim is not maintainable against him. This issue is thus decided against the respondent no1 and in favour of the counter claimant.
Issue No. 3 & 4"Whether the counter claim is barred U/s 477/478 of DMC Act ? OPD2"
" Whether the counter claim is without any cause of action against defendant no2 ? OPD2"
The respondent no2 has raised the preliminary objection in its written statement that the counter claim is bad for want of service of the statutory notice under section 478 of Delhi 10 Municipal Corporation Act. Section 478 (1) of the Act mandates the service of two month's notice in writing by the plaintiff prior to the filing of the suit. However, subsection (3) of section 478 carves out an exception. It clearly lays down that nothing in subsection (1) shall be deemed to apply to a suit in which the relief claimed is an injunction of which the object would be defeated by the giving of notice or the postponement of the institution of the suit. The counter claimant (DW1) has admitted in his cross examination that he had not given notice under Section 478 of DMC Act to the MCD before filing the courter claim. The relief of injunction sought by the counter claimant in the present case is mandatory in nature. Keeping in view the nature of the injunction, it can not be said that the object of the claim would have been defeated by giving of notice to MCD. In the absence of the service of statutory notice, the counter claim is bad in the eyes of law against the respondent no2.
Next preliminary objection taken by the respondent no2 is that the counter claim does not disclose any cause of action against MCD. The expression " cause of action " means the bundle of facts which give rise to an action in law. In order to show the accrual of cause of action against the respondent no2, the counter claimant was required to plead and prove that he served a notice upon the MCD asking it to take action against the alleged encroachment on the public land by the respondent no1 and that the respondent no2 MCD failed or 11 refused to act on the basis of the said notice. Admittedly, no such notice was served by the counter claimant upon the respondent no2 prior to the filing of the counter claim. Thus it is clear that the counter claim against the respondent no2 is without any cause of action and is liable to be dismissed against it.
The above issues are, accordingly, decided against the counter claimant and in favour of the respondent no2.
Issue No. 1"Whether the defendant no1 is entitled to the relief of Mandatory Injunction as prayed for ? OPD1"
According to the counter claimant, the flat of the respondent no1 originally had its entrance adjacent to the main entrance of the block but the father of the respondent no1 shifted it to the main entrance of block no. 26 to the extreme left with the intention to grab public land meant for the common use of the residents of block no. 26 & 27 which not only occasioned a structural change in the premises but also resulted in obstruction of light and air to the kitchen and bed room of the counter claimant. On the other hand, the respondent no1 has categorically denied that any structural change in the flat or encroachment upon the public land has been made by him. A perusal of the record shows that though the counter claimant has placed on record a site plan depicting the alleged encroachment made by the respondent no1 but he has failed to prove the said site plan. Neither any 12 photograph of the alleged encroachment nor any sanction plan of the flats has been produced on record by the counter claimant. Not only this, he has also failed to examine any witness from the concerned authority to prove that the alleged encroachment is in contravention of building bye laws. In fact, the counter claimant (DW1) has stated in his cross examination that he did not lodge any complaint with any authority when the respondent no1 shifted his entrance gate. Had the easementary rights of the counter claimant been actually affected by the alleged encroachment made by the respondent no1, he would have certainly opposed the same and lodged a complaint against it. The failure of the counter claimant to do so lends support to the case of the respondent no1 that the entrance gate existed at the same place when the flat was purchased in the year 1992. Bald allegations of the counter claimant uncorroborated with any material evidence does not entitle him to the relief of mandatory injunction as prayed for. The above issue is thus decided in favour of the respondent no1 and against the counter claimant.
I ssue No. 2" Whether the defendant no1 is entitled to a decree for an amount of Rs. 2,06,000/ as prayed for ? OPD1"
The counter claimant has sought to recover Rs. 2,06,000/ from the respondent no1 being the compensation for the injury caused to him as a result of institution of suit for permanent injunction and obtaining of temporary injunction 13 on 18.07.2002 by the respondent no1. Thus the claim of the counter claimant is essentially under the law of Torts for damages resulting from malicious abuse of civil proceedings. It is trite that a civil action ordinarily involves no damage to a person and the only damage is the expense of fighting such a litigation. Since the order in such civil proceedings for costs adequately compensates the aggrieved party for this damage, an action for malicious abuse of civil proceedings is normally not maintainable. It is only in the exceptional cases where the costs of litigation may not adequately compensate the defendant that he may sue to recover damages arising out of such civil proceedings. In Genu Ganp ati Shivale Vs. Bal Chand Jivraj Raisoni and Anr. AIR 1981 Bombay 170, it has been held by the Hon'ble High Court that in order to succeed in establishing malicious abuse of civil proceedings, the plaintiff is required to prove the following ingredients:
i) In the first place, malice must be proved.
ii) Secondly, the plaintiff must allege and prove that the defendant acted without reasonable and probable cause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged.
iii)The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to effect his reputation. The counsel for the counter claimant has argued that since 14 the respondent no1 filed the suit for permanent injunction with out any reasonable cause, obtained temporary injunction on false ground and thereafter abandoned the suit, he is liable to compensate the counter claimant for the injury suffered by him. I find no merits in the argument advanced by the counsel for the counter claimant. Abandonment of suit for permanent injunction by the respondent is not sufficient either to impute malice to him or to show want of reasonable or probable cause for filing the suit. Independent of the dismissal of the suit, the counter claimant was required to prove not only malice but also absence of sufficient ground for bringing an action against him by the respondent no1. The suit for permanent injunction was instituted by the respondent no1 as he apprehended that the counter claimant was shifting the main entrance of his house towards the main entrance of the house of the respondent no1. The facts that the construction work was being undertaken by the counter claimant and that he had arranged the construction material as well as labour at the site are not in dispute. Though in his written statement to the suit for permanent injunction, the counter claimant had averred that he was merely replacing his old iron gate with a new iron grill gate but in his counter claim as well as affidavit tendered in evidence, the counter claimant (DW1) has stated that on 08.07.2002, he was undertaking a minor construction of shifting the entrance gate of his residence and the respondent no1 objected to the same and obtained temporary injunction 15 on 18.07.2002 from the court. In view of the above admission of the counter claimant, it can not at all be said that the apprehension of the respondent no1 was without any reasonable or probable cause. Nothing has been brought on record by the counter claimant to show that the construction being undertaken by him was in conformity with the building byelaws. Rather he has admitted in his cross examination that he had not obtained permission from any authority to carry out the construction in his flat. It has also been elicited from the cross examination of the counter claimant that he was trying to shift forward the gate of his flat. Considering the same, neither any malice can be inferred against the respondent no1 nor it can be said that the suit for permanent injunction was filed by him on insufficient grounds. Thus it is evident that the counter claim is not sustainable against the respondent no1 and accordingly the present issued is decided against the counter claimant and in favour of the respondent no1.
Relief : In view of my findings on issue no1 & 2, the counter claim filed by the counter claimant is hereby dismissed. No order as to costs is made.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court ( Smita Garg )
on 09/05/2011 JSCC/ASCJ(NW)
Rohini Courts:Delhi.
16
S353/08/02
09.05.2011
Pr. None.
Vide separate judgment announced in the open court, the counter claim filed by the counter claimant has been dismissed. No order as to costs is made.
Decree sheet be prepared accordingly.
File be consigned to record room.
( Smita Garg ) JSCC/ASCJ(NW) Rohini Courts:Delhi.