Delhi District Court
Manorama Dubey vs Delhi Development Authority & Ors on 2 March, 2013
Suit No. 278/2008
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 278/2008
Manorama Dubey
........Plaintiff
Versus
Delhi Development Authority & Ors.
....Defendants
Order:
Vide this order, I shall decide application under Order
XXXIX Rule 1 and 2 CPC filed by the plaintiff against defendants. The
brief facts for the effectual disposal of the instant application are as
follows:
1.Plaintiff states that she is the owner in possession of flat bearing no 40 C, SFS DDA Flats, Vijay Mandal Enclave, New Delhi. It is the case of plaintiff that defendants no 4 and 5 are the occupants of the flat no 40D, SFS DDA Flats, Vijay Mandal Enclave, New Delhi which is just above the flat of the plaintiff. It is stated that there is a common terrace for installing water tanks, antennas, junkyard, etc but the defendants 4 and 5 want to grab the entire terrace by constructing a floor and putting a lock on the common gate of the roof. On 17.02.2008 when plaintiff went to the terrace of the building to take back certain goods she found that her goods were taken and sold off by the defendant no 4 and 5. She also Manorama Dubey Vs. DDA & Ors. 1/6 Suit No. 278/2008 found that the common lock on the terrace had been broken. It is also stated that on 19.02.2008 defendant no 4 and 5 put their personal lock on the terrace and when the plaintiff and other occupants of the building went to inspect their water tanks, defendant no 4 and 5 refused to open their personal lock and abused them. Consequently a police complaint was also lodged but to no avail. It is the case of plaintiff that defendant no 1 to 3 have allowed the defendant no 4 and 5 to encroach upon the roof. It is stated that on 30.03.2008 defendant no.4 and 5 brought some building materials to construct a room on the terrace but the same was stopped by intervention of the police.
Hence the present suit has been filed seeking that defendants no 4 and 5 be restrained from putting a personal lock on the terrace and from encroaching and raising unauthorized construction on the common terrace of flat no 40D, SFS Flats, Vijay Mandal Enclave. It is further prayed that defendant no 1 to 3 be directed to demolish such unauthorized construction raised by defendant no 4 and 5 and also to remove the lock fixed by defendant no 4 and 5.
2. Vide the present application plaintiff prays that defendants no 4 and 5, their family members, attorneys, agents, etc be restrained from encroaching, putting personal lock on the terrace and from raising Manorama Dubey Vs. DDA & Ors. 2/6 Suit No. 278/2008 unauthorized construction on the common terrace of flat no 40D, SFS Flats, Vijay Mandal Enclave, Delhi without due process of law till the final disposal of the suit. It is also stated that plaintiff shall suffer irreparable harm if the application is not allowed. It is further stated that plaintiff has prima facie case in her favour.
3. In their reply, DDA/defendant no.1 submits that the suit is bad for want of notice under Section 53B of the Delhi Development Act. It is stated that the area in question has been denotified and now any action for detection, removal, regularization of the additions/alterations in the flats can be by MCD only.
4. In their reply, defendant no. 2 states that the suit is bad for want of notice under Section 477/478 of the Delhi Municipal Corporation Act. It is stated that the common terrace of flat no 40D, SFS Flats, Vijay Mandal Enclave was inspected on 06.06.2011 and no ongoing construction activity was seen. The terrace was vacant except water tanks. It is stated that the suit of plaintiff is based only on apprehension and that there is no cause of action for filing the suit.
5. In their reply, defendant no 4 and 5 state that the plaintiff has not approached the Court with clean hands and has suppressed material facts. It is stated that the terrace can be used by flat owners of ground Manorama Dubey Vs. DDA & Ors. 3/6 Suit No. 278/2008 floor, first floor and second floor only for installing water tanks, plumbering system and antennas and for the maintenance of these the flat owners have right to visit the terrace. The terrace cannot be used a junkyard. It is stated that the roof can be used exclusively by the owner of third floor and not by any other person. It is stated that the lock has been put by defendant 4 and 5 only to avoid any junk being stored on the terrace by owners of flats in lower floors. It is stated that plaintiff has damaged the water proofing done by defendant no 4 and 5 by fixing her water pipe and has not repaired the same. It is stated that plaintiff herself took away her goods. It is also stated that there was never a common lock on the terrace. It is also stated that no construction has been undertaken on the roof by the defendant no 4 and 5.
6. I have heard the parties and have considered the record.
7. The prayer in the present application is two fold. Firstly it is prayed that defendant no 4 and 5 be restrained from putting personal lock on the terrace. Secondly it is prayed that they be restrained from raising unauthorized construction on the common terrace of flat no 40D, SFS Flats, Vijay Mandal Enclave, Delhi. The first prayer has become infructuous in as much as the plaintiff has herself admitted in the plaint that such private lock has been put on the terrace by defendant no 4 and Manorama Dubey Vs. DDA & Ors. 4/6 Suit No. 278/2008 5, which is admitted by defendant no 4 and 5 also. Thus no injunction can be granted restraining defendant no 4 and 5 from putting a lock.
8. Plaintiff claims that defendant no 4 and 5 intend to construct a room on the terrace as some building materials were brought by them to the terrace. This has been denied by defendant no.2 who say that on inspection no such materials were found on the terrace and there was no construction activity going on or completed. Defendant no 4 and 5 have also stated that there is no such construction taking place and that they have no such intention to construct any room over the roof. To support her case plaintiff has not filed any photograph or anything to show that such building materials were ever brought to the terrace or some construction activity is going on. Prima facie there is nothing on the record to substantiate the case of the plaintiff as regards the unauthorized construction on the roof. The apprehension of the plaintiff as would necessitate the grant of interim injunction is not established. There is no gainsaying that there is no occasion for granting injunction without a threat or apprehension to rights of plaintiff.
9. Accordingly, no prima facie case is made out in favour of the plaintiff. Balance of convenience cannot be said to be lying in her favour. No case of irreparable injury as may be suffered by the plaintiff is made out.
Manorama Dubey Vs. DDA & Ors. 5/6 Suit No. 278/2008
10.Consequently, the application under Order XXXIX Rule 1 and 2 CPC is dismissed.
11.Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Pronounced in the open court today on 02.03.2013 (Richa Gusain Solanki) Civil Judge (West) THC, Delhi/02.03.2013.
Manorama Dubey Vs. DDA & Ors. 6/6