Delhi District Court
Sanjay Mittal vs Shri Mahendra Dutt Sharma on 17 August, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
RCA No.44/2009
Sanjay Mittal,
S/o Late Shri Bihari Lal,
R/o 50, Gali Raja Kedar Nath,
Chawri Bazar, Delhi.
...Appellant
Versus
1. Shri Mahendra Dutt Sharma
S/o late Pandit Damodar Dass Sharma,
R/o 50, Gali Raja Kedar Nath,
Chawri Bazar, Delhi.
2. Smt. Santosh Rani
Wd/o late Shri Murari Lal Gupta,
3. Shri Deepak Mittal,
S/o late Sh. Murari Lal Gupta,
4. Smt. Anita
5. Smt. Poonam
6. Smt. Archana
7. Smt. Monika
All daughters of late Shri Murari Lal Gupta, r/o
4750, Pathak Rasheed Khan, Jogiwara, Nai Sarak,
Delhi.
8. Smt. Sangeeta,
D/o late Shri Bihari Lal Mittal,
W/o Ajay Gupta,
R/o 101, Shiv Kutti, Krishna Kunj, Laxmi Nagar,
Delhi.
1
9. Smt. Neena Mittal,
D/o late Shri Bihari Lal Mittal,
W/o Shri Vinod Kumar,
R/o 2524, Naiwara,
Chawri Bazar, Delhi.
10. Smt. Neelam,
W/o Shri Bharat Jain,
D/o late Shri Bihari Lal,
R/o 2131, Johari Bazar, Jaipur.
11. Smt. Pushpa Rani,
W/o Shri Sat Prakash Gupta,
D/o Late Shri Jawahar Lal,
R/o 2134, Katra Gokul Shah,
Bazar Sita Ram, Delhi6.
12. Smt. Raj Dulari,
W/o Shri Om Prakash Gupta,
D/o Late Shri Jawahar Lal,
R/o H.No.1188, Gali Babu Ram,
Mohalla Imli, Kucha Pati Ram,
Bazar Sita Ram, Delhi6.
13. Municipal Corporation of Delhi,
service to be effected through its Commissioner,
Town Hall, Chandni Chowk, Delhi.
.... Respondents
Date of Institution: 26.11.2001
Arguments heard on: 16.7.2009
Last date for filing written synopsis: 10.8.2009
Date of Decision: 17.8.2009
2
: J U D G M E N T :
This appeal has been directed against the
judgment and decree of the Ld. Trial Court dated 3.10.2001.
BRIEF FACTS OF THE CASE BEFORE THE TRIAL
COURT:
At the very outset before proceeding to decide the present appeal it is necessary to mention that the complete trial court record has not been placed before me as part of the trial court record containing the part pleadings, documents, initial proceeding sheets has been destroyed and my Ld. Predecessor had sent this intimation to the Ld. District & Sessions Judge who directed its reconstruction. A communication had been received from the Ld. Civil Judge and being an extremely old record the reconstruction is not so easy and is a time consuming process. Therefore, under these circumstances, it has become necessary for this court to reconstruct the facts on the basis of the available records, the facts narrated in the impugned judgment which have not been disputed by any of the parties before this court and also on the 3 basis of the assistance provided by the counsels appearing for the parties.
Smt. Sita Devi had filed a suit for mandatory injunction in the year 1972 against Shri Jawahar Lal, son of Shri Shri Ram alleging that she is the owner of H.No.4950, Gali Raja Kedar Nath, Chawri Bazar, Delhi and defendant was a tenant in a portion of the ground floor and first floor. It was pleaded that the defendant no.1 in collusion with defendant no.2 illegal constructed one room on the second floor of the said house in the year 197071 and the said construction was in violation of Section 343/344 of the DMC Act which resulted in substantial deprivation and diminution of light and air of the ground floor and first floor and the defendant had no right to make any new construction on the second floor and he was only a tenant of one room with inside room in the ground floor and one chaubutra on the first floor. It was stated that the defendant no.2 inspite of protest by the plaintiff constructed the said room on the second floor and the said room is liable to be demolished pursuant to which the 4 plaintiff served a notice dated 3.2.1972 upon defendant no.2 to demolish the said room but despite that the said room was not demolished. On the basis of the aforesaid allegations the plaintiffs sought a decree of mandatory injunction against the defendants for demolition of the room on the second floor shown in red colour in the site plan.
The deceased defendant no.1 in his written statement had taken number of preliminary objections regarding maintainability of the suit including the objection that suit for mandatory injunction is not maintainable in as much as defendant being in possession of the suit premises and no possession is sought from him besides an objection that the plaintiff is estopped from her own conduct from seeking the mandatory injunction of demolition. It was also stated that the plaintiff is guilty of latches in as much as the repair in the barsati which is now alleged as room were carried out in January, 1970 and the suit was filed in January, 1973. On merits the defendant no.1 stated that he was a tenant in respect of a portion comprising of ground floor, first 5 floor and second floor and the plaintiff had deliberately concealed the factum of possession of second floor which was a barsati and open terrace. The said barsati on the second floor had always been in tenancy of defendant no.1/ the present appellant since beginning and as such Barsati started leaking due to passage of time. The same was repaired by defendant no.1. This fact was also mentioned by defendant no.1 in reply to a notice dated 9.2.1970 received from the defendant no.2. In reply to another notice from defendant no.2 dated 22.7.70 the same thing was repeated. It was stated that the plaintiff herself had given no objection to defendant no.1 vide letter dated 29.8.1970 and therefore it could not be said that defendant no.1/ present appellant had constructed any room as alleged. In the written statement by defendant no.1 it was also stated that the said barsati is in the same shape in which it was let out except for repairs carried out by defendant after seeking permission from the plaintiff.
MCD who was the defendant no. 2 also filed a separate written statement wherein a preliminary objection 6 was taken to the effect that the suit is barred under Section 343/344 of the DMC Act and being without any cause of action is liable to be dismissed. Though defendant no.1 had stated in the written statement that the said construction is against building byelaws and an action is being contemplated yet it was no where mentioned that any show cause notice or demolition notice was ever served upon the owner/ builder as required under Section 343 of the DMC Act.
During the pendency of the suit defendant no.1 Shri Jawahar Lal died and as such his legal representatives namely Shri Murari Lal Gupta, Shri Bihari Lal, Smt. Pushpa Rani and Smt. Raj Dulari were substituted in his place. Subsequently, Shri Murari Lal Gupta also died and his legal representatives were also substituted. Not only this Shri Bihari Lal also died during the pendency of the suit and his legal representatives including the appellant were also substituted. On the other hand the plaintiff Smt. Sita Devi also died and in her place her alleged adopted son i.e. respondent no.1 herein was substituted and the trial of the 7 case proceeded.
It is further evident that initially the suit was even dismissed in default but was thereafter restored on 13.7.1982. Issues were framed by the Ld. Trial Court on 9.11.1973. The plaintiff had examined 6 witnesses including the original plaintiff Sita Devi. The plaintiff closed her evidence on 29.9.1975. On 13.2.1976 the application for additional evidence was allowed and two more witnesses were allowed to be examined after which the plaintiff' s evidence was closed on 24.10.1976. The defendant MCD examined one witness and closed their evidence on 27.7.1979. The main contesting defendants examined only 5 witnesses of which DW5 stopped appearing before the court and his testimony could not be completed and the evidence of the defendant was thereafter closed 4.1.2000. The initial plaintiff Smt. Sita Devi expired in the year 1995 and it is only thereafter that the defendants came up with a new plea regarding the deceased Sita Devi having issued a No Objection Certificate on 20.8.1970 which was disputed by the LRs of the plaintiff Sita Devi alleging 8 that it was a forged and fabricated document.
The record reveals that the application under Order 13 Rule 1 and 2 read with Order 18 Rule 17A CPC dated 9.12.98 was filed seeking permission of the learned trial court to place on record a 'No Objection Certificate dated 29.8.1970' issued by Smt. Seeta Devi, permitting the deceased defendant to carry out the repairs in the disputed premises. The said document was sought to be produced being the most material document in respect of which plea had been taken in the written statement and on the basis of which a specific issue was framed by this learned trial court. The record reveals that vide order dated 20.4.1991 Sh. Rakesh Kapoor, the then Sub Judge, 1st Class, Delhi had disposed off the application under Order 11 Rule 12 & 14 read with Order 12 Rule 8 CPC, filed by the defendant no. 1/ appellant before this court, by observing that the defendant no. 1/ present appellant had failed to produce the No Objection Certificate enclosed alongwith the letter and therefore, the defendant no. 1 had a legal right to prove the said document by leading 9 secondary evidence in respect of the said No Objection Certificate and had directed the defendant no. 1 to file an affidavit with regard to the No Objection Certificate dated 29.8.1970. The record further reveals that vide order dated 21.4.1999 the application of the defendant no. 1/ present appellant under Order 13 Rule 1 & 2 read with Order 18 Rule 17A CPC dated 9.12.1998 was allowed on cost of Rs.500/ by Sh. Rajender Kumar, the then Civil Judge, Delhi despite which no evidence was lead by the present appellant on the said document. The impugned judgment/ decree was passed by the Ld. Civil Judge on 3.10.2001 after giving sufficient opportunities to all the parties to advance their oral arguments vide which judgment/ decree the defendant no. 1/ present appellant was directed to remove the disputed construction within a period of two months. GROUNDS OF APPEAL:
The said judgment/ decree dated 3.10.2001 has now been challenged by the appellant/ defendant on the ground that the learned trial court has committed an error in 10 law by holding that the deceased defendant Shri Jawahar Lal raised construction of a room on the top floor which fact was neither proved by the respondent i.e. plaintiff before the trial court by way of evidence nor by way of documents and that the learned trial court has also committed a grave error in not discussing the pleadings of the parties and particularly, the plaint and replication which is totally contrary to the evidence led by the respondent/ plaintiff before the trial court. It is stated that the learned trial court has also committed an error by ignoring the provision of Section 101 of the Evidence Act which deals with the burden of proof. According to the appellant, it is settled law that initial burden of proving the facts lies on the person who is seeking the relief and alleging the existence of a particular fact and in the instant case the respondent had filed the suit for mandatory injunction claiming therein that the appellant is a tenant in respect of a portion comprising of one room with inside room on the ground floor and one chabutra (one room, two kothas, one kitchen with court yard) on the first floor of the house and 11 that the deceased defendant had raised construction of a room on the second floor. The initial burden regarding the extent of tenancy and raising of unauthorised construction was upon the respondent/ plaintiff before the trial court which she had to discharge by leading positive evidence. It is stated that though, the learned trial court has discussed in the judgment that respondent has concealed the fact that appellant was also a tenant in respect of a barsati on the top floor yet the plea of appellant in this regard was rejected.
It is also pleaded that the learned trial court has also committed an error on fact by relying upon the version of the respondent with regard to extent of accommodation existing in the property and particularly when in the site plan the barsati/tin shed on the top floor was not at all shown. It is stated that the learned trial court also did not taken into consideration the fact that the respondent had not placed on record counter foils of the rent receipts, rent deed, rent note or any other related document showing extent of tenancy of the deceased predecessor in interest of the appellant and the 12 deceased predecessor in interest of the respondent even failed to prove on record that at the relevant time no construction existing on the second floor and there is no evidence on record except the oral evidence. It is stated that the best record in this regard would have been survey report of the MCD which could have proved that there was no construction on the second floor prior to the alleged raising of construction by the defendant. According to the appellant the learned trial court in fact wrongly stuck to the fact that the whole case of the appellant is based on a no objection certificate given by the respondent which was not placed on record by the appellant. It is also stated that the learned trial court has taken it for granted that the appellant has raised construction of a room on the second floor after obtaining a no objection certificate from the deceased predecessor in interest of the respondent and thus the burden of proof was upon him. It is pointed out that it was never the case of the appellant that any new construction was raised on the second floor and thus the approach of the learned trial court in this regard is totally 13 erroneous and unsustainable. It is further stated that though the learned trial court has discussed the evidence led by the appellant yet no weightage was given to the oral and documentary evidence and ignoring the evidence of the appellant on record the learned trial court has committed an error of facts and in case if this conclusive evidence would have been relied upon by the learned trial court in its true sense, the decree in question would not have been passed since by passing the decree the learned trial court has directed the demolition of the room meaning thereby evicting the appellant from the tenanted portion which is totally beyond jurisdiction of the learned trial court in view of Section 50 of the Delhi Rent Control Act. It is also stated that the learned trial court has stressed upon the fact that the appellant had failed to produce on record the no objection certificate and the entire controversy revolves around the said no objection certificate. It is also stated that the learned trial court had failed to consider the preliminary objections and the issues regarding maintainability of the suit and has also committed 14 an error while deciding legal issues i.e. issue no.4 and 5 which issues were to be decided on the basis of evidence of the parties. It is pointed out that the learned trial court has failed to consider that in crossexamination almost every witness of the respondent including the respondent has categorically stated that the constructions were carried out in 1970 but no action was initiated by the plaintiff till 1973 when the suit was filed.
Before proceeding further it is noted that alongwith the appeal an application under Section 5 of the Limitation Act has also been filed for condoning the delay in filing the appeal on the ground that the father of the counsel appearing on behalf of the appellant who had been instructed to apply for certified copy, was seriously ill due to which reason Sh. Mujaffar Hussain Advocate had gone to his native village at Aligarh to attend to his ailing father for about 8 to 10 days who had forgotten to apply for certified copy. There has been a delay of 6 days in applying for certified copy and 3 days after obtaining the copy which delay was on account 15 of negligence on the part of the junior counsel Sh. Mujaffar Hussain. I have considered the submissions made before me.
The day to day delay has been explained with which I am satisfied. The delay of 23 days in filing of appeal is hereby condoned.
Alongwith the appeal another application under Order 13 Rule 1 and 2 read with Order 41 Rule 27 CPC and Section 151 CPC has also been filed seeking permission to prove the No Objection Certificate issued by the respondent by way of additional evidence. It is submitted that the No Objection Certificate dated 29.8.1970 sought to be placed on record by way of application under Order 13 Rule 1 and 2 CPC may be directed to be taken on record and the appellant may be allowed to prove the same in accordance with law by leading additional evidence to be taken before this court on such terms and conditions as may be imposed by this court. Reply to the said application has been filed by the respondents. However, it is evident from the record that alongwith the application no such document i.e. No Objection 16 Certificate has been placed on the judicial record.
I have gone through the trial court record and also Order dated 20.4.1991 passed by Sh. Rakesh Kapoor, the then Sub Judge First Class, Delhi on the application filed by the present appellant under Order 11 Rule 12 & 14 CPC read with Order 12 Rule 8 CPC calling upon the MCD to produce the original letter dated 16.2.1970 written by Jawahar Lal; the NOC letter written and signed by Smt. Sita Devi W/o late Sh. Damodar Dass Shastri; undertaking dated 29.8.1970 and the application dated 29.8.1970. It is evident that the letter dated 16.2.1970 was filed before the trial court but in so far as the NOC letter written by Smt. Sita Devi is concerned, as per the MCD no such letter is available with them. The undertaking dated 29.8.1970 and the application dated 29.8.1970 have also been filed by the MCD. It is also evident from the order of Sh. Rakesh Kapoor, the then Sub Judge dated 20.4.1991 that in the application dated 16.5.1974 Sh. Jawahar Lal had informed the Zonal Engineer (Building) that he was prepared to file the NOC from the landlady Smt. Sita 17 Devi and also an undertaking on the non judicial stamp paper to the effect that he is a tenant of Smt. Sita Devi on a monthly rent of Rs.30.50p and the landlady had given him the required No Objection Certificate. He had further stated that the roof projection which is 2' 6" wide at the second floor of the property bearing no. 50/IX, Gali Kedar Nath, Chawri Bazar, Delhi had been converted by him as nonaccessible flower bed and he shall not use the same for any other purpose except the flower bed in future. Vide this order dated 20.4.1991 the Ld. Sub Judge had observed that it was evident from the letter that the defendant no.1/ applicant had enclosed an undertaking and the NOC issued by Smt. Sita Devi in his favour which was enclosed alongwith the letter written by him to the Zonal Engineer vide letter dated 29.8.1970 and therefore, the defendant no. 1 has a legal right to prove the said NOC by leading secondary evidence. An objection had been raised that the said NOC sought to be produced on record and purported to have been issued by Smt. Sita Devi was a forged document and not genuine and it was in this 18 background that the case was listed for filing the affidavit by defendant no. 2 with regard to the NOC dated 29.8.1970. Despite the aforesaid no secondary evidence was lead and thereafter vide order dated 21.4.1999 the application under Order 13 Rule 1 and 2 CPC read with Order 18 Rule 17A CPC, was allowed by Sh. Rajender Kumar, Civil Judge and the present appellant/ defendant before the trial court was allowed to place on record the NOC allegedly issued by Smt. Sita Devi the plaintiff before the trial court to the MCD on 29.8.1970 and to prove the said document by leading evidence. In the said application under Order 13 Rule 1 & 2 CPC it was alleged that the document was not traceable earlier and could only be found after the death of the father of the applicant namely Bihari Lal when a search was made of old records and the entire case of the appellant/ defendant before the Trial Court rests on the proof of the said document. It was in this view of the matter that the Ld. Civil Judge had allowed the application and taken on record the said document with permission to lead secondary evidence to 19 prove the same.
Thereafter, again sufficient opportunities were granted to the present appellant to lead secondary evidence on the said document. The appellant did not examine any witness on 1.11.1999 and 4.1.2000 despite opportunities and it was only thereafter that the evidence of the present appellant was closed and the case was listed for final arguments.
It is further evident that repeated adjournments were granted for final arguments and it was observed by the Ld. Civil Court on many occasions that the case was very old and further time would not be granted for arguments. The perusal of the proceeding sheets also show that at no point of time any request was made on behalf of the present appellant during this period for allowing him to lead any secondary evidence on the NOC as allowed by the Ld. Civil Judge vide its order 21.4.1999. Rather, the present appellant even failed to file his written synopsis of arguments despite opportunities and the Ld. Trial Judge had to proceed to deliver the 20 impugned judgment only thereafter.
Now, even before this appellate court the application of the appellant/ defendant is not accompanied by any copy of the NOC or the list of witnesses who could have proved the same and the attempt it seems is only to further delay the execution of the decree. If this is not abuse of process of law, then what else could it be.
The available records reveal that the original plaintiff Smt. Sita Devi has filed the suit somewhere in the year 1972 and now even after 37 years the attempt of the appellant is only to delay the present proceedings on one pretext of the other since despite repeated opportunities , the appellant has failed to prove the alleged No Objection Certificate by leading secondary evidence or even to place the same on record despite the directions of the Ld. Trial court dated 20.4.1991 and subsequent directions dated 21.4.1999. The application now filed by the appellant under Order 41 Rule 27 CPC without any supporting documents which is nothing short of abuse of the judicial process. 21
I have considered the grounds raised in the appeal. Firstly it has been submitted by the Ld. counsel appearing on behalf of the appellant that the Ld. Trial Court has erred in not deciding the issues no. 2 and 5. This ground raised by the appellant is without any merit since it is evident that the Ld. Trial Court has duly considered and decide all the issues on merits and the contention that the issues no. 2 and 5 have not been decided, is factually incorrect as evident from the detailed judgment of the Ld. Trial Court. It is apparent that the issue no. 2 and 3 have already been considered and decided by the Ld. Trial Court having been treated as preliminary issued on 15.5.1975.
Secondly Smt. Sita Devi who is the alleged executant of the said NOC duly relied upon by the appellant had initially appeared before the Ld. Trial Court and had made a deposition before the Ld. Trial Court on 26.3.1982. She was also subjected to a detailed crossexamination on the aspect of having issued the No Objection Certificate on 29.8.1970 wherein she admitted Jawahar Lal to be her tenant 22 and specifically denied having given anything in writing on 29.8.1970.
Thirdly the application under Order 11 Rule 12 & 14 CPC had been filed only after the death of the landlady, the initial plaintiff who expired in the year 1985. The attempt it appears is to take advantage of the death of the original landlady Smt. Sita Devi who was the predecessor in interest of the respondent and of the destruction of a part of the judicial record which till date has not been reconstructed.
Fourthly the documentary record placed on record by the Municipal Corporation shows that the No Objection Certificate was only to the extent of admitting the predecessor in interest of the appellant as a tenant at a monthly rent of of Rs.30.50p and allowing him to use the roof projection as a nonaccessible flower bed and shall not be used for any other purpose in future and there is nothing on record to show that any no objection was granted by Smt. Sita Devi permitting the predecessor in interest of the appellant in raising the pucca construction of a room.
23
Lastly I find no merit in the contention made by the appellant that the respondent who was the plaintiff before the Ld. Trial Court has failed to discharge the onus upon her and had failed to bring on record the extent of accommodation. Rather, on the other hand the record reveals that the stand of the plaintiff before the trial court had been very consistent that the predecessor in interest of the appellant was only a tenant in respect of the ground floor and the first floor and the use of roof projection was permitted only as a flower bed. This aspect finds an independent corroboration from the documents placed on record by the Municipal Corporation of Delhi i.e. letter dated 16.2.1970 written by the predecessor in interest of the appellant Sh. Jawahar Lal and therefore, the respondent having discharged the initial onus imposed upon it, the onus of disproving the same now shifted upon the appellant and it became obligatory for the present appellant to have rebutted the same which he did not do.
24
What is absolutely shocking is the fact that the appellant before this court who is only a tenant in respect of the property in question i.e. the roof projection which was initially being used by him as a non accessible flower bed which was illegally converted by him into a room, has managed to delay the trial of the case for almost 37 years, only on the pretext of leading secondary evidence on the aspect of No Objection Certificate. Unfortunately during this period the landlady Smt. Sita Devi had expired so much so that even original tenant who was the predecessor in interest of the appellant also expired. The attempt of the appellant is to legalize his tenancy rights the illegally constructed room. Unfortunately he has managed to retain the possession of the said room by delaying the present legal proceedings. The repeated applications filed by the appellant for leading secondary evidence for the last many years is nothing but an attempt to prolong the litigation in order to retain the possession of the illegally constructed room on one pretext or the other. This court will not allow itself to get trapped and 25 entangled in these tactics of the appellant who has now once again filed similar application under Order 13 Rule 1 and 2 CPC read with Order 41 Rule 27 CPC. The appellant having failed to place on record the relevant documentary evidence so permitted previously and to examine even a single witness despite repeated opportunities having been given to him for the last almost more than 17 years, now cannot be allowed to fill up the lacuna at appellate stage.
I, therefore, find no merit in both the application under Order 13 Rule 1 & 2 CPC read with Order 41 Rule 27 CPC and the appeal filed by the appellant which are hereby dismissed. However, since the directions of the Ld. Trial Court to remove the construction as shown in Ex.D2W1/1, Ex.D2W1/2 and Ex.D2W1/3 within two months from the date of decree after which the appeal has been filed, I in the interest of justice extend this period and direct the appellant to remove the construction within 30 days from today failing which the respondent shall be at liberty to get removed the same with the aid and assistance of the 26 municipal corporation under intimation to this court, cost of which shall be recovered from the present appellant. Decree sheet be prepared accordingly. Trial court record be sent back alongwith the copy of this order. Appeal file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 17.8.2009 Addl. District Judge: Delhi 27 Sanjay Mittal Vs. Mahender Singh RCA No. 44/09 17.8.2009 Present: None for the appellant. Respondent no. 1 Mahender Dutt in person. Sh. Sanjay Gupta, JLO for the MCD.
Vide my separate detailed order dictated and announced in the open court but not yet typed, I find no merit in both the application under Order 13 Rule 1 & 2 CPC read with Order 41 Rule 27 CPC and the appeal filed by the appellant which are hereby dismissed. However, since the directions of the Ld. Trial Court to remove the construction as shown in Ex.D2W1/1, Ex.D2W1/2 and Ex.D2W1/3 within two months from the date of decree after which the appeal has been filed, I in the interest of justice extend this period and direct the appellant to remove the construction within 30 days from today failing which the respondent shall be at liberty to get removed the same with the aid and assistance of the municipal corporation under intimation to this court, cost of which shall be recovered from the present appellant. Decree sheet be prepared accordingly. Trial court record be sent back alongwith the copy of the detailed order. Appeal file be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 17.8.2009 28