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Delhi District Court

Sanjay Kalra vs Tilok Raj Anand And Anr on 6 August, 2012

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IN THE COURT OF Ms. VEENA RANI :  ADDITIONAL RENT CONTROLLER­
 cum­COMMERCIAL CIVIL JUDGE­cum­ ADMINISTRATIVE CIVIL JUDGE: 
     NEW DELHI DISTRICT : PATIALA HOUSE COURTS, NEW DELHI


Suit No:15/12

Sanjay Kalra                                                              .....Plaintiff

                        Vs.      

Tilok Raj Anand and anr.                                                  ....Defendant.

ORDER

1. Vide this order I shall decide the application of the plaintiff filed u/o 39 rule 1 & 2 CPC r/w section 151 CPC wherein plaintiff prayed for ex­parte ad­interim injunction thereby restraining the defendant no.1, his agents, representatives, assignees from raising any illegal and unauthorised construction over the suit property i.e. basement and the 2nd floor of D/74, Regal Building, Connaught Place, New Delhi. Briefly stated the facts for the disposal of above application are as under:­

2. It is averred by the plaintiff that he is the owner of shop No: 1, D/74, Regal Building, Connaught Place, New Delhi. It is stated by the plaintiff that defendant pretends to be the owner and started renovating the entire building section by making the basement and the 2nd floor of D/74, Regal Building, Connaught Place, New Delhi without proper permission from the defendant no.2. The construction can cause overload on the suit property having weak foundation Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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and same can be collapsed resulting damage to passers with heavy causalities. It is stated by the plaintiff that on 31­03­2012 and 12­4­2012, the plaintiff intimated the defendant no.2 about the illegal construction in the suit property but all in vain. It is averred that if the defendant no.1 is not restrained, the plaintiff will suffer irreparable loss and injury. It is prayed that a decree of permanent injunction in favour of the plaintiff and against defendant no.1 thereby restraining the defendant no.1, his agents/representatives/assignees from raising any illegal and unauthorized construction over the suit property and to pass a decree of mandatory injunction directing the defendant no.2 to demolish the unauthorized construction being raised by the defendant no.1 over the suit property.

3. Defendant No:1 filed written statement. It is submitted by the defendant No:1 that the plaintiff has not approached the court with clean hands and suppressed the material facts from the court. It is further stated that the suit of the plaintiff is barred for non­joinder of necessary parties as M/s Glory Construction Pvt. Ltd is the owner of the suit property and defendant no.1 is one of director of the the said company. Further that M/s Glory Construction Pvt. Ltd let out the suit premises to Smt Poonam Bhasin and she sub­let the suit premises to the plaintiff w.e.f. 01.9.2011 without prior intimation to M/s Glory Construction Pvt Ltd therefore, the plaintiff is an illegal sub­tenant and has no locus standi to file the present suit against the defendant. It is further submitted that Smt Poonam Bhasin is a necessary party in the present suit. It is further stated that the basement of Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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the building is an old construction and defendant only carried out repairs/renovation in the entire building including basement within the norms prescribed by the NDMC/defendant no.2 The defendant No:1 denied all the allegations leveled against him by the plaintiff.

4. Defendant No:2/NDMC also filed written statement wherein it has been stated that there is no cause of action against the NDMC, therefore, the suit of the plaintiff is liable to be dismissed against the defendant No:2/NDMC. It is stated that only repair and renovation work was carried out and no new basement and third floor was found constructed at the premises in question. It is submitted that the answering defendant/NDMC have no knowledge about the alleged construction activities in the suit premises and the plaint is wrong, misconceived and devoid of merit and is liable to be dismissed on account of concealment of the material facts.

5. I have heard ld. Counsel for the parties and perused the record carefully. In order to seek relief u/o 39 rule 1&2 CPC, one must show that a prima facie case exists in his favour, balance of convenience also lies in his favour and that an irreparable loss would be caused in case such a relief is not granted in his favour.

6. The case of the plaintiff herein is that, the without proper permission from the defendant no.2/NDMC, the defendant no.1 has started renovation of the entire building section by making the basement and the 2nd floor of D/74, Regal Building, Connaught Place, New Delhi and there is every possibility that due to Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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the construction work and the weak foundation the suit premises can collapsed resulting damage to passers with heavy causalities.

7. In the WS of defendant no.1 it is the submission of the defendant no.1 that the plaintiff is an illegal sub­tenant and has no locus standi to file the present suit against the defendant. It is denied by the defendant no.1 and defendant no.2 that alleged construction activity is going on in the suit premises.

8. It is also the contention on behalf of the NDMC that the suit has been filed without any cause of action. Further that only repair and renovation work was carried out by the defendant no.1 and no new basement or third floor was found constructed at the premises in question.

9. In the case of Gujarat Bottling Co. Ltd. v. Coca Cola Co. reported in [(1995) 5 SCC 545] the Hon'ble Supreme Court, while discussing the factors to be considered by the Courts in exercise of the discretion under order 39 rules 1 & 2 CPC, has observed as follows:

"The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests :

                   (i)     whether the plaintiff has a prima facie case;
                   (ii)    whether the balance of convenience is in favour of the  
                           plaintiff;
       and 

Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.

The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."

10. In Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors., (1990) 2 SCC 117, this Court, discussing the principles to be kept in mind in considering the prayer for interlocutory mandatory injunction observed :

"The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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non­contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines.

11. In Dalpat Kumar v. Prahlad Singh, (1992)1 SCC 719 : (1992 AIR SCW 3128) a Bench of two Judges (in which K. Ramaswamy, J. was a Member) of this Court held that the phrases "Prima facie case," "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non­interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

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12. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, the Hon'ble Supreme Court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case­ the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.

The Prima Facie case:

13. It is contended by the plaintiff that he is the owner of the Shop No. 1,D 74, Regal Building, Connaught Place, New Delhi and the defendant no.1 by carrying out construction in the building of D­74, Regal Building, Connaught Place, New Delhi by making 2nd floor and basement causing damage to the foundation of the entire building which can be collapsed by this construction work and thereby can also resulted in damage and heavy casualties. On the other hand, it is the version of the defendant no.1 that the plaintiff is not the owner of the suit property and he is an illegal sub­tenant, therefore, he has no locus standi to file the present suit. It is further contended by defendant no.1 that the basement of the building is an old construction and he is only carrying out the repair/renovation work in the entire building within the norms prescribed by the NDMC. The NDMC/defendant no.2 also submitted in their WS that only repair and renovation work was carried out and no new basement and third floor found to be constructed in the premises in question.

Vide order dated 15.5.2012 a Local Commissioner was appointed for the Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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inspection of the suit property i.e. D­74, Regal Building, Connaught Place, New Delhi. It is reported by the Local Commissioner in his report that there is major construction going on in the basement, in first floor, in roof and a office has been newly constructed. It is further reported that the construction work is also going on in the adjoining first floor M/s Shikha Developers Ltd. It is also reported by the Local Commissioner that the construction work cannot be called as minor repair but major construction are being undertaken. I have also gone through the photographs annexed with the Report showing the construction work in the premises in question. On the perusal of the Local Commissioner report and the photographs, it can be clearly inferred that the major construction work is going on in the premises in question. Whether the plaintiff is an illegal occupant of the suit property or not is a matter of trial. At this stage, the plaintiff is succeeded in establishing a prima facie case in his favour by showing that heavy construction work is going on in the suit premises which can cause damage to the suit property. The balance of convneince

14. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd. (SCC at pp. 731­32]. In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."

15. In the present case the need of the plaintiff appears more justified than that of the defendant No.1. Therefore the 'balance of convenience' is in favour of the plaintiff at this stage.

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The Irreparable Loss

16. In "Law of Injunctions" by L.C. Goyle, at page 64, it is stated that "an application for temporary injunction is in the nature of a quia timer action. Plaintiff must, therefore, prove that there is an imminent danger of a substantial kind or that the apprehended injury, if it does come, will be irreparable. The word "imminent" is used in the sense that the circumstances are such that the remedy sought is not premature. The degree of probability of future injury is not an absolute standard: what is aimed at is justice between the parties, having regard to all the relevant circumstances". At page 116, it is also stated that "in a suit for a perpetual or mandatory injunction, in addition to, or in substitution for, the plaintiff can claim damages. The Court will award such damages if it thinks fit to do so. But no relief for damages will be granted, if the plaintiff has not claimed such relief in the suit."

17. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait­jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.

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Muralidhar & Anr. (2007) 14 SCC 721).

18. In the present case the question is whether the plaintiff could be adequately compensated in terms of money if the interim injunction is not granted. The answer appears to be in negative because the issue is related to the livelihood of the plaintiff­herein.

19. The Court should grant the interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice.

20. I am satisfied that the plaintiff would suffer irreparable loss if the injunction is not granted.

21. The application of the plaintiff u/o 39 rule 1&2 CPC stands allowed. The defendant no.1, his agents, representatives, assignees are hereby restrained from raising any illegal and unauthorised construction over the suit property i.e. basement and the 2nd floor of D/74, Regal Building, Connaught Place, New Delhi till the final disposal of the present suit.

22. Nothing is tantamount herein above expressed, on the merits of the case.

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23. Put up for framing of issues, filing of documents and admission-denial, if any, on 03­09­2012.

Announced in the open court on this 06th day of August, 2012. (VEENA RANI) ARC/ACJ/CCJ/New Delhi Suit No:15/12, Sanjay Kalra Vs. Tilak Raj Anand and anr.