Delhi District Court
Joginder Singh vs . Amar Nath Gupta on 4 September, 2013
Joginder Singh Vs. Amar Nath Gupta
CS NO. 232/12
IN THE COURT OF MS. REKHA: JSCCCUMASCJCUM GUDN.
JUDGE:
ROHINI COURTS: DELHI
Suit No. 232/12
Sh. Joginder Singh
S/o Late Sh. Bishan Singh
R/o AG201, Shalimar Bagh,
Delhi110034 ............... Plaintiff
Versus
Sh. Amar Nath Gupta
S/o late Shivlal Gupta
R/o BA38, West Shalimar Bagh,
Delhi110052 ..............Defendant
DATE OF INSTITUTION: 17.04.2012
DATE OF DECISION: 04.09.2013
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
JUDGMENT :
Vide this judgment I proceed to decide suit for Mandatory and Permanent Injunction on behalf of the plaintiff. Through this suit 1 Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 it has been prayed that a decree for permanent Injunction may kindly be passed in favour of the plaintiff and against the defendant thereby restraining the defendants, their agents, servants, nominees etc. from raising any further construction in the common space more specifically shown in red colour in the site plan annexed as Annexure P2 and also pass a mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants to remove the illegal construction raised by the defendants in the common space more specifically shown in red colour in the site plan annexued as P2.
As per the case of the plaintiff, the defendant is the landlord of the plaintiff in respect of property bearing No. C6, Wazirpur Industrial Area, Delhi measuring 12"x10"(hereinafter referred as suit property) more specifically shown in the colour red in the site plan annexued. It is also the case of the plaintiff that suit property was let 2 Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 out to the plaintiff by the defendant for the commercial purpose on 01.11.1991 as per agreement dated 01.11.1991 and since then the plaintiff has been carrying out his business inthe suit property and has been regularly making the paymentof rent to the defendant but for the last about few months, the defendant is not accepting the rent tendered by the plaintiff in order to make the ground for eviction and also filed Eviction Petition No. 12/2009 U/s 14 (1) (a), (c) and (k) of the Delhi Rent Control Act and in that eviction petition, an interlocutory order was passed by the Court of ld. ARC. So, the plaintiff has filed a CM (Main) No. 1449 which was dismissed but later on restored and it is also stated that ld. counsel for plaintiff appeared before the Court of Ld. ARC, Rohini Delhi and apprised the ld. Court about the restoration of the CM (M) Petition of the plaintiff in the Hon'ble High Court of Delhi. It is also stated that on 05.04.2012 when the plaintiff went to the house for lunch, then the defendant, his 3 Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 son, and some other persons came to the suit property in the absence of the plaintiff and constructed the brick wall on the roof of the tenanted premises in possession of the plaintiff and affixed shed in such a manner that now whenever there will be rain the water will log on the roof of the premises in possession of the plaintiff and when it will overflow the water directly fall into the shop of the plaintiff. It is also stated that the defendant has no right whatsoever to raise any construction in any manner in which it has been raised. It is also averred that plaintiff requested the defendant not to do the same but all in vain. It is also stated that the plaintiff reported the matter on 05.04.2012 in the police station but no action has been taken by the police. In the fact and circumstances of the case, present suit has been filed.
The defendant contested the present suit and filed the Written Statement in which allegations levelled in the the plaint have been 4 Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 denied and it is stated that present suit is liable to dismissed U/o 07 Rule 11 CPC as no cause of action arose or has been shown agaisnt the defendant and the plaintiff has filed the present suit as counter blast against the eviction petition filed by the defendant against the plaintiff. It is also stated that the plaintiff has no right, title or interest in the roof of the suit property and initially suit property was given to the plaintiff of Rs. 1100/ per month on 14.01.2009. It is also stated that the defendant has not raised any wall of the roof of the tenanted premises and affixed shed on 05.04.2012 or any other date as alleged and the construction whatsoever is there, is an old construction and the defendant did not raise any construction as alleged by the plaintiff and the photographs produced by plaintiff are forged and manipulated. It is also stated that on 05.4.2012, the defendant was out of station on account of Mahavir Jayanti. There is also prayer for the dismissal of the suit.
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Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 Plaintiff filed Replication in which contents of the suit have been reiterated and allegations levelled in the Written Statements have been denied.
Vide order dated 27.05.2013, following issues were framed:
1. Whether the suit of the plaintiff is not maintainable in view of U/o 07 Rule 11 CPC? OPD.
2. Whether the plaintiff is entitled for the relief of permanent injunction as prayer for? OPP.
3. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP.
4. Relief.
Despite several opportunities no PE was led. Hence, vide order dated 26.08.2013, PE was closed and on the very same day, ld. counsel for defendant submits that he does not want to lead DE, hence, DE was closed.
I have heard the arguments and perused the material availabl on record.
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Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 Issueswise findings are as under:
1. Whether the plaintiff is entitled for the relief of permanent injunction as prayer for? OPP.
AND
2. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP.
Since both these issues are interconnected, hence are being decided here together.
Onus to prove both these issues were conferred upon the plaintiffs.
As per the para no. 3 of the plaint, the area of the suit property is measuring 12"x10" and same is shown in red in the site plan anenxed as AnnexureP2 and in reply to this para, its is stated that contents of the para no. 3 of the present plaint are not denied and further submits that the plaintiff has no right, title or interest in the roof of the tenanted premises and in replication to this para, it is stated that para no. 3 of the reply on merits in Written Statement are wrong and denied however, the plaintiff reiterate the contents of the 7 Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 para no. 3 of his plaint true and correct and same is not repeated herewith for the sake of brevity.
It is worthwhile to mention here that while order dated 30.05.2012 while deciding the application U/o 39 Rule 1 and 2 CPC, it was observed by the Court that when the defendant has given on rent the suit property to the plaintiff, the defendant is not divested of all the right in the property and the defendant can carry out construction in his property which is not the subject matter of rent agreement between the plaintiff and the defendant. It was further observed that if the defendant is carrying out illegal construction, it is for the plaintiff to prima facie show to the Court that the construction which is being carried out are illegal and only by alleging that the construction is illegal is not sufficient to injunct the defendant from exercising his rights in the property.
In view of the aforesaid, view of the Court is that plaintiff 8 Joginder Singh Vs. Amar Nath Gupta CS NO. 232/12 failed to lead any evidence in his case. So plaintiff failed to discharge onus placed upon him. Issue both issue no. 2 and 3 are decided against the plaintiff and in favour of the defendant.
So far as issue no. 1 is concerned, when issue no. 2 and 3 are decided in favour of the defendant and against the plaintiff, so there is no requirement to discuss on this issue, hence decided accordingly.
Relief: Suit of the plaintiff is dismissed. File be consigned to record room after due compliance.
Announced in the open (Rekha)
Court on 04.09.2013 JSCCcumASCJcumGudn. Judge
North, Rohini Courts, Delhi
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Joginder Singh Vs. Amar Nath Gupta
CS NO. 232/12
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