Delhi District Court
Sh. Mehtab vs Sh. Khalil Ahmed on 20 September, 2019
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IN THE COURT OF SH. BHARAT AGGARWAL, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.9235/16
Sh. Mehtab
S/o Sh. Abdul Hakim,
R/o House No.A15, Ground Floor,
Camp No.2, Nangloi, Delhi 110041
..........................PLAINTIFF
VERSUS
1. Sh. Khalil Ahmed
S/o Sh. Abdul Hakim
R/o House No.A15, First Floor,
Camp No.2, Nangloi, Delhi - 110041
2. North Delhi Municipal Corporation
Through its Commissioner,
Civic Centre, Minto Road,
New Delhi 110002
.....................DEFENDANTS
Suit filed on - 24/09/2015
Judgment Reserved on - 20/09/2019
Date of decision - 20/09/2019
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
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JUDGMENT: By this judgment, I shall adjudicate a suit for permanent and mandatory injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the plaintiff :
1. This is a suit for permanent injunction filed by the plaintiff against the defendants whereby plaintiff has sought decree of permanent injunction restraining the defendant no.1 from raising any unauthorised and illegal construction on the roof of the first floor in the property bearing No.A15, Camp No.2, Nangloi, Delhi - 110041 as shown in red colour in the site plain filed alongwith the plaint (hereinafter referred to as the "suit property"). The plaintiff has further sought decree of mandatory injunction against the defendants thereby directing the defendant no.2 i.e. the North Delhi Municipal Corporation to demolish the unauthorised construction raised by the defendant no.1 on the first floor of the suit property.
It is the case of the plaintiff that defendant no.1 is the real younger brother of the plaintiff and the defendant no.1 resides on the first floor of the suit property whereas the plaintiff resides on the ground floor of the suit property. That the suit property was allotted in the name of the father of the parties i.e. Sh. Abdul Hakim somewhere in the year 1976 and it was built upto the double storey in the year 1980 with the joint funds of the plaintiff and his father. That the father of the parties executed a Will dt.17/05/1997 and as per the said Will he bequeathed the ground floor of the suit property to the plaintiff and the first floor of the suit property to the defendant no.1, hence, the plaintiff and defendant no.1 have equal half shares in the suit property.
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It is the case of the plaintiff that the defendant no.1 has without any permission from the proper authority, raised unauthorised construction on the roof of the first floor in the suit property and that with malafide intentions, he brought labourers in the suit property on 21/09/2015 and thereafter the plaintiff made complaints with the Deputy Commissioner, MCD Rohini Zone and requested him to restrain the defendant no.1 from making unauthorised construction over the suit property. It is submitted that the entire building is an old construction and the said building cannot bear the weight of any further construction and, therefore, defendant no.1 should be restrained from making any unauthorised construction in the suit property. It is further submitted that defendant no.1 is in collusion with the officials of defendant no.2/North MCD and has been making unauthorised construction without any sanction. It is in these circumstances, that the plaintiff has filed the present suit seeking permanent and mandatory injunction against the defendants.
Pleadings of the Defendants :
2. The written statement was filed on behalf of defendant no.1 wherein inter alia, it was submitted that the present suit is not maintainable as there is no cause of action in favour of the plaintiff. It was also submitted that the present suit has been filed with a view to harass the defendant no.1 and as the other legal heirs of the deceased father of the parties have not been impleaded, therefore, the suit is liable to be dismissed because of nonjoinder of proper parties. Defendant no.1 admitted that the suit property was allotted in the name of the father of the parties. It was submitted by the defendant no.1 that the suit property was built upto ground floor, first floor and second floor with the funds of father of the parties only in the year 1976.
It was further stated that father of the parties Sh. Abdul Hakim died intestate leaving behind three sons and two daughters. It was submitted by the Suit No.9235/16 Page3/14 4 defendant no.1 that the suit property was very old and it requires certain repairs and the defendant no.1 only carried out permissible repairs under the building bye laws, in order to save the lives of the residents of the building.
3. Written statement was also filed on behalf of defendant no.2 i.e. North MCD wherein interalia it was submitted that the physical inspection was carried our in the suit property on 07/01/2016 and it was noticed that the property in question was old constructed building having ground floor, first floor and second floor and at the time of inspection no fresh construction, no building material was found at the suit property. It was also submitted on behalf of defendant no.2/North MCD that the plaintiff had not sent the mandatory legal notice to the defendant no.2 before institution of the present suit and the suit is, therefore, not maintainable.
It was further submitted by the defendant no.2 that the complaint was made by the plaintiff in respect of the unauthorised construction to the Rohini Zone whereas the suit property is under the jurisdiction of Narela Zone. It was also submitted by defendant no.2 that as per the inspection of the suit property there was no unauthorised construction found at the suit property and, therefore, no action is required to be taken by the defendant no.2/North MCD.
4. Replication has also been filed on behalf of plaintiff to the written statement of defendants wherein the averments made in the written statement were denied and those made in the plaint were reiterated and reaffirmed.
Issues :
5. From the pleadings of the parties, following issues were framed in the suit vide order dt.14/03/2016 : Suit No.9235/16 Page4/14 5
(a) Whether no cause of action has arisen in favour of the plaintiff and against the defendant no.1? OPD1
(b) Whether the suit of the plaintiff is not maintainable in its present form? OPD1
(c) Whether the suit of the plaintiff is bad for misjoinder and nonjoinder of necessary as well as proper parties? OPD1
(d) Whether the plaintiff has no locus standi to file the suit and claim the relief? OPD2
(e) Whether the plaintiff has approached the court with unclean hands?
OPD2
(f) Whether the suit of the plaintiff is bad for want of notice under provisions of DMC Act? OPD2
(g) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in the plaint? OPP
(h) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed in the plaint? OPP
(i) Relief, if any.
Evidence :
6. In order to prove his case, the plaintiff got examined himself as PW1 and led his evidence by way of affidavit which is Ext. PW1/A wherein he reiterated the averments made in the plaint. PW1 also relied upon certain documents which are as under : Identification Mark Description PW1/1 (Colly) (OSR) Photographs of Aadhar Card and Ration Card of the plaintiff.
PW1/2 Postal receipt.
Ex. PW1/3 (OSR) Photocopy of Will dt.17/05/1997.
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Ex. PW1/3A (Colly) Photographs of the suit property.
Ex. PW1/4 Site plan.
Ex. PW1/5 Photocopy of complaints to Commissioner, MCD and
SHO P.S. Nangloi.
MarkA Photocopy of complaint to Deputy Commissioner,
MCD.
PW1/plaintiff was also crossexamined by the counsel for defendant and during his crossexamination it came to light that the father of the parties passed away about 10 years ago. PW1 stated that as other brothers and sisters of the parties have no share in the suit property i.e. why the plaintiff did not make the other defendants as a party to the present suit. PW1 further stated that his father Sh. Abdul Hakim left a unregistered Will and as per that Will the property was to be shared between plaintiff and the defendant no.1. He further admitted that the suit property was allotted to his father in the capacity of license/tenant and the property has not yet been mutated with the DDA in the name of the parties. He further stated that he had made complaint to DDA regarding unauthorised construction over the roof of the first floor of the suit property, however, no official of DDA or MCD took any action against the alleged unauthorized construction. He stated that defendant no.1 has been residing in the suit property alongwith his family since his birth.
Thereafter, plaintiff examined Sh. Rashid Khan as PW2 who led his evidence by way of affidavit which is Ext. PW2/A. In his evidence affidavit Ex. PW2/A, PW2 deposed that he is the neighbour of plaintiff and he knows the parties. He further stated that the suit property was allotted in the name of the father of the parties and was built up to double storey in the year 1980 and as per the Will of Sh. Abdul Hakim dt.17/05/1997 the plaintiff and defendants are having equal shares in the suit property. He further stated that defendant no.1 without knowledge and permission raised unauthorised construction on the roof Suit No.9235/16 Page6/14 7 of the first floor and as the property is old it cannot bear the weight of another further construction.
PW2 was also crossexamined by the counsel for defendant no.1 and during his crossexamination PW2 stated that house of the plaintiff was 23 lanes away from the house of the PW2. He further stated that father of the parties was the licensee of DDA in the suit property. He further stated voluntarily that the defendant no.1 has constructed first floor and the second floor in the suit property.
Thereafter, PE was closed on the basis of statement of counsel for plaintiff vide order dt.02/02/2019.
7. Defendant no.2 was proceeded exparte vide order dt.20/04/2019 and DE was led only by defendant no.1. In order to prove his case, defendant no.1 examined himself as DW1 and he tendered his evidence by way of affidavit Ex. DW1/A wherein he reiterated the contents of the written statement. No document was relied upon or exhibited by DW1.
DW1 was crossexamined by the counsel for the plaintiff wherein defendant no.1 stated that he is residing at the second floor of the suit property and the plaintiff is residing at the ground floor of the suit property. He further stated that first floor of the suit property is occupied by him. He denied the suggestion of counsel for plaintiff that first floor of the suit property is occupied by a tenant. He admitted that as per the Will, the plaintiff and defendant are owners of half shares in the suit property. DW1 stated that he made repair/renovation work in the suit property. He further stated that second floor of the suit property was constructed about 25 years ago and is not a new construction. He further denied the suggestion of the counsel for plaintiff that he has raised unauthorised and illegal construction in the suit property without obtaining sanctions.
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Thereafter, DW Mohd. Furqan @ Guddu was examined by defendant no.1 as DW2 who led his evidence by way of affidavit i.e. Ex. DW2/A wherein he reiterated the contents of the written statement. DW2 happens to be the brother in law of the defendant no.1. No document was placed on record by DW2.
DW2 was also crossexamined by counsel for plaintiff and during his crossexamination, he stated that it takes about half an hour for him to reach the suit property. He further stated that he has come to depose at the instance of the defendant who happens to be his brother in law. He stated that suit property was built upto the second floor with the funds of father of the parties as he was told so by the father of the parties Late Sh. Abdul Hakim. He further stated that when he visited the suit property at the time of marriage of his sister in the year 1995 it was told to him by father of the parties Late Sh. Abdul Hakim that he would convert the tin structure on the second floor into a permanent structure. He further stated that when he visited his sister (i.e. the wife of the defendant no.1) about three years back, she asked for certain funds from DW2 for purpose of repair/plaster work to be carried out at the suit property.
Thereafter, DE was closed on the basis of statement of the counsel for the defendant no.1 vide order dt.06/07/2019.
Decision with reasons :
8. The arguments were heard on behalf of both the parties at length and record has been carefully perused. Now, I shall give my issuewise findings which are as under : I shall take up issue No.(a), (b) and (c) together as mixed question of law and facts are involved in the aforesaid issues.
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9. Issue No.(a), (b) & (c)
(a) Whether no cause of action has arisen in favour of the plaintiff
and against the defendant no.1? OPD1
(b) Whether the suit of the plaintiff is not maintainable in its present
form? OPD1
(c) Whether the suit of the plaintiff is bad for misjoinder and non
joinder of necessary as well as proper parties? OPD1 The onus to prove these issues was upon the defendant no.1. The present suit has been filed by the plaintiff against the defendant alleging that the defendant no.1 has made illegal and unauthorised construction in the suit property. Plaintiff has alleged that even after complaining with the defendant no.2/North MCD, no action was taken by the concerned authorities and, hence, plaintiff was compelled to file the present suit. Therefore, perusal of the plaint reveals that there is a cause of action in favour of the plaintiff and even otherwise, the defendant no.1 has not led any evidence to show that there is no cause of action in favour of the plaintiff and against the defendant no.1.
Accordingly, issue no.(a) is decided against the defendant no.1 and in favour of the plaintiff.
Defendant no.1 has alleged that the present suit is not maintainable. However, defendant no.1 has failed to point out as to what are the legal infirmities in the present suit filed by the plaintiff and on perusal of the plaint and the documents filed alongwith it, the present suit appears to be maintainable before this court.
Accordingly, issue no.(b) is decided against the defendant no.1 and in favour of the plaintiff.
Defendant no.1 has argued that the present suit is liable to be dismissed for nonjoinder of necessary as well as proper parties as the plaintiff has not made other siblings of the plaintiff and defendant no.1 as party in the Suit No.9235/16 Page9/14 10 present suit. Therefore, it is submitted that OrderI R.9 CPC is attracted and the suit shall be dismissed for nonjoinder of necessary parties. However, the said argument of the defendant no.1 lacks merit because the present suit has been filed by the plaintiff alleging unauthorised construction by the defendant no.1 and, therefore, it is prayed that the defendant no.1 be restrained from raising any unauthorised construction on the suit property and that the defendant no.2 be directed to demolish the unauthorised construction raised by the defendant no.1. This court is of the view that in a suit of such a nature, the other brothers and sisters of the plaintiff and defendant no.1 are not necessary parties in the present case. Even otherwise, it is the admitted case of the defendant no.1 that as per the Will Ex. PW1/3 of the deceased father of the plaintiff and defendant no.1, the suit property fell in equal shares with the plaintiff and defendant no.1. Be that as it may, the defendant no.1 has not even led any evidence to prove the fact that the other siblings of the plaintiff and defendant no.1 have rights in the suit property. Therefore, the argument that the suit shall be dismissed for nonjoinder of necessary parties does not hold any water and lacks merit.
Accordingly, issue no.(c) is also decided against the defendant no.1 and in favour of the plaintiff.
10. Issue No.(d) & (e)
(d) Whether the plaintiff has no locus standi to file the suit and claim the relief? OPD2
(e) Whether the plaintiff has approached the court with unclean hands? OPD2 The onus to prove these issues was upon the defendant no.2. Perusal of the record reveals that the defendant no.2 has not led any evidence in the present suit and defendant no.2 was proceeded exparte vide order dt.20/04/2019. As far as these issues are concerned, from the perusal of the Suit No.9235/16 Page10/14 11 plaint, it is quite evident that plaintiff has locus standi to file the present suit and it cannot be said that plaintiff has approached this court with unclean hands. Even though, there is no evidence led by defendant no.2 to prove these issues, from the perusal of record, it cannot be said that plaintiff has no locus standi to file the present suit or has approached the court with unclean hands.
Accordingly, issue no.(d) and (e) are decided against the defendant no.2 and in favour of the plaintiff.
11. Issue No.(f)
(f) Whether the suit of the plaintiff is bad for want of notice under provisions of DMC Act? OPD2 The onus to prove this issue was upon the defendant no.2. It was stated by defendant no.2/North MCD in the written statement that plaintiff has not served the mandatory notice as per Section478 of the Delhi Municipal Corporation Act, 1957 to the defendant no.2/North MCD before the institution of the present suit. Defendant no.2 submitted that suit is liable to be dismissed on this ground. In this regard, it is relevant to refer to Section478(3) which provides that the requirement of service of notice prior to the institution of the suit shall not be applicable in a case where the only relief claimed is injunction and the object of which would be defeated by giving notice. In the present suit, the plaintiff has approached the court against unauthorised construction raised by the defendant no.1 and it is stated by the plaintiff that due to repeated unauthorised construction by the defendant no.1, there is threat to the lives of the residents of the building and in these circumstances the present suit for injunction was filed by the plaintiff, therefore, the present suit is squarely covered by subsection3 of Section478 of the Delhi Municipal Corporation Act, 1957 and the court is of the view that there was no mandatory requirement of service of prior notice u/s 478 of Delhi Municipal Corporation Act, 1957 by the Suit No.9235/16 Page11/14 12 plaintiff to the defendant no.2 in the present case.
Accordingly, in view of the aforesaid observations, issue no.(f) is decided against the defendant no.2 and in favour of the plaintiff.
12. Issue No.(g) & (h)
(g) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in the plaint? OPP
(h) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed in the plaint? OPP The onus to prove these issues was upon the plaintiff. In order to prove his case, plaintiff has examined himself as PW1 and Sh. Rashid Khan as PW2. In order to prove the unauthorised construction allegdly made by defendant no.1, the plaintiff has placed on record Ex. PW1/3A i.e. four photographs alleged to be of the suit property, site plan Ex. PW1/4, complaint made to the defendant no.2 Ex. PW1/5 and another complaint dt.20/09/2015 i.e. MarkA. Upon perusal of the said documents, it is evident that the plaintiff has not been able to prove as to what construction as alleged by the plaintiff is unauthorised or illegal and when was the same was raised allegedly by defendant no.1.
A status report dt.08/01/2016 was filed by Assistant Engineer (Building) North Zone on behalf of defendant no.2/North MCD wherein it was submitted that the suit property consists of ground floor, first floor and second floor and as per the inspection on 07/01/2016 no fresh construction or building material was found by the said official at the suit property.
Perusal of the written statement filed by the defendant no.2/North MCD reveals that it is the clear case of defendant no.2/North MCD, that is the Government body in charge of taking action against illegal and unauthorised construction, that there is no unauthorised construction at all in the suit property.
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Defendant no.2/North MCD has categorically stated in their written statement as well as in the status report dt.08/01/2016 that as there is no unauthorised construction in the suit property and that no action is required to be taken by the defendant no.2/North MCD. In view of the provisions of Indian Evidence Act, 1872 the onus to prove that there is illegal and unauthorised construction which was raised made by the defendant no.1 in the suit property was upon the plaintiff. It is trite law that the case of the plaintiff has to stand on its own legs irrespective of the defence taken by the defendants, in order to be entitled to the relief claimed in the suit. Apart from filing the complaint sent to the MCD dt.20/09/2015 and certain undated photographs, the plaintiff has not filed any other document to show that the defendant no.1 has raised any illegal or unauthorised construction in the suit property. Even the testimony of PW2 does not inspire any confidence and from his testimony it cannot be conclusively determined as to when the defendant no.1 has raised the alleged unauthorised and illegal construction in the suit property or whether there is actually any unauthorised construction in the suit property. Therefore, it is quite evident that plaintiff has miserably failed to discharge the burden of proving the aforesaid issues.
However, defendant no.2 being the statutory body in charge of taking action against unauthorised construction shall be at liberty to take action against the unauthorised construction in the suit property, if any, as and when it is found after following the due process of law.
In view of aforesaid findings, issue no.(g) and (h) are decided against the plaintiff and in favour of defendants.
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13. Issue no.(i)
(i) Relief - In view of the findings given on issues no.(a) to (h),
documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove his case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly. File be consigned to record Digitally signed by BHARAT BHARAT room after completing the necessary formalities. AGGARWAL AGGARWAL Date: 2019.09.21 16:44:40 +0530 (BHARAT AGGARWAL) Civil Judge, Delhi (West)02 Announced in the open court on 20/09/2019.
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