Delhi District Court
Sh. Brij Bhushan vs Sh. Rajnish Verma on 16 December, 2019
IN THE COURT OF ADDITIONAL DISTRICT JUDGE05,
SOUTH WEST, DWARKA COURTS, NEW DELHI
Regular Civil Appeal No. 38/19
IN THE MATTER OF :
Sh. Brij Bhushan
S/o Late Sh. Sri Chand
R/o House No. RZ9H/3A, Indra Park,
Palam Colony, New Delhi - 110045.
.......... Appellant
versus
1. Sh. Rajnish Verma
S/o Late Sh. Sri Chand
R/o House No. RZ9H/3, Indra Park,
Palam Colony, New Delhi - 110045.
2. South Delhi Municipal Corporation
Through its Commissioner,
Civic Centre, J.L.N. Marg,
Minto Road, New Delhi.
3. The SHO
P.S. Sagarpur, New Delhi.
.......... Respondents
CIVIL APPEAL UNDER SECTION 96 CPC READ WITH
SECTION 41 OF CPC
Date of institution : 16.04.2019
Date when judgment reserved : 27.11.2019
Date of Judgment : 16.12.2019
RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 1 of 15
JUDGMENT:
1. This is an appeal against the impugned judgment and decree dated 20.02.2019 passed by Court of Dr. Jagminder Singh, Ld. Additional Senior Civil Judge, South West, Dwarka, New Delhi whereby the plaint of the appellant was rejected under Order 7 Rule 11 CPC.
2. Brief facts as borne out from the trial court record are that the appellant/ plaintiff had filed a suit for permanent and mandatory injunction against the respondent/defendants. It was claimed in the plaint that the appellant and respondent no. 1 are the real brothers and became coowners of the property bearing No. RZ9H/3, Gali No. 3, Indira Park, Palam Colony, New Delhi (hereinafter referred to as "suit property") after the death of their parents. The respondent no. 1 started demolishing the part of the suit property and also started digging the foundation for raising illegal and unauthorized construction without the sanctioned plan from the respondent no. 2. The appellant objected to on raising the unauthorized and illegal construction but the respondent no. 1 did not pay any heed and, therefore, the appellant made a complaint to RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 2 of 15 respondent no. 3/ SHO PS Sagarpur and respondent no. 2/SDMC, but no action was taken. The respondent no. 1 has also blocked the gali by collecting the construction material and malba and since no action was taken by respondent nos. 2 and 3, he was compelled to file the suit. The appellant had prayed for decree of permanent injunction to restrain the respondent no. 1 from raising further construction in the suit property and a decree of mandatory injunction directing the respondent no. 1 to demolish the illegal construction raised by him in the suit property.
3. The respondent no. 1 pursuant to service of summons of the suit appeared in the court but failed to file the written statement within stipulated time and his right to file the written statement was closed by the Ld. Trial Court vide order dated 04.07.2016. The Trial court also observed that the suit cannot be decreed hastily and court notice was directed to be issued to Executive Engineer of MCD for filing the status report. The status report was filed by the respondent no. 2/ SDMC on 13.07.2017 and, thereafter, the written statement filed by respondent no. 2 was allowed to be taken on record vide order dated 14.05.2018. On 15.10.2018, pursuant to the Court directions, the appellant filed an RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 3 of 15 affidavit stating therein that the property No. RZ9H/3A where he was earlier residing does not belong to him. In view of the said declaration made by the appellant in the affidavit, Ld. Counsel for the respondent no. 2 and 3 submitted that since the appellant has no connection with the property No. RZ9H/3A regarding which he is seeking relief in the present suit, the suit has become infructuous. In view of the same, the Ld. Trial Court vide order dated 15.10.2018 fixed the matter for arguments on the point of cause of action of the appellant/plaintiff. Vide order dated 20.02.2019, arguments on the maintainability of the suit were heard and the Ld. Trial Court rejected the plaint under order 7 rule 11 CPC observing that the appellant himself had appeared before the court with unclean hands and failed to show a valid cause of action or even his locus standi to file the present suit.
4. Aggrieved by the impugned order dated 20.02.2019, the appellant has preferred the present appeal contending that the Ld. Trial Court has overlooked the settled law that while rejecting the plaint only averments made in the plaint and documents annexed with it are to be looked into while no other document can be considered and allowed, RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 4 of 15 however the Ld. Trial Court appreciated the version and document filed by the respondent no. 2 and quoted the judgment of Hon'ble High Court of Delhi relied upon by the respondents in Civil Society Palam Kshestra vs. The Deputy Commissioner & Ors., WP (C)7838/2013. It is further contended that the status report filed by the SDMC has been considered by the Ld. Trial Court which could not have been considered. It is further contended that the Ld. Trial court vide order dated 15.10.2018 took the affidavit of the appellant/plaintiff dated 09.10.2018 and relied upon the same while coming to the final conclusion of rejecting the plaint erroneously whereas it is nowhere mentioned in the affidavit dated 09.10.2018 that the appellant is not residing in the suit property. The Trial Court has also failed to appreciate the photographs of illegal and unauthorized construction carried out by the respondent no. 1 and came to the wrong conclusion. The appellant has contended that the impugned order dated 20.02.2019 suffers from several infirmities and hence prayed that the same may be set aside.
5. The respondents did not file any formal reply to the present appeal and the Ld. Counsel for respondents have argued straightaway on RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 5 of 15 the appeal.
6. Ld. Counsel for respondent no. 1 has argued that the appellant has not come to the Court with clean hands and he even failed to disclose that how he is the coowner of the suit property. He submitted that the appellant himself has raised illegal construction in the house where he is living. He further argued that the motive to file the litigation by the appellant before the Trial Court is not with regard to the unauthorized construction but when he failed to get any relief in previous two suits and contempt petition filed by him against his old age father and brother i.e. respondent no. 1 regarding partition of the property and both the suits having been dismissed even upto the Hon'ble High court of Delhi, the present suit has been filed to pressurize the respondent no. 1 to succumb to his illegal demand of partition of the suit property. He submitted that the impugned order does not suffer from any infirmities and is based on the facts and circumstances of the case as narrated in the plaint and the binding precedent of the Hon'ble High Court of Delhi and has prayed for dismissal of the appeal with cost.
7. Ld. Counsel for respondent no. 2 has submitted that the RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 6 of 15 appellant himself has not approached the court with clean hands as the construction raised by the appellant in his propriety is also unauthorized, therefore relying upon the judgment of Hon'ble High Court in Civil Society Palam Kshestra vs. The Deputy Commissioner & Ors. (supra), the Ld. Trial Court has rightly rejected the plaint observing that the suit is without cause of action and the appellant has no cause of action to file the suit.
8. I have considered the submissions made on behalf of the parties and perused the record including the Trial Court record.
9. The grievance of the appellant in the present appeal is that the Ld. Trial Court has gone beyond the scope of provisions of Order 7 rule 11 CPC since for rejection of plaint u/o 7 rule 11 CPC only averments made in the plaint and documents annexed with it are to be looked into, while the Ld. Trial Court has taken into consideration the defence of the respondent no. 2/SDMC and also referred the judgment relied upon by the respondents while rejecting the plaint vide impugned order.
10. The appellant had filed the suit simplictor for injunction RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 7 of 15 claiming himself to be coowner of the suit property alongwith the respondent no. 1. The appellant was aggrieved with the unauthorized construction being undertaken by the respondent no. 1 in the suit property which the respondent no. 2 did not stop despite making complaint to it. Therefore, the appellant sought decree of permanent injunction to restrain the respondent no. 1 from raising further construction and a decree of mandatory injunction to direct him to demolish the unauthorized construction raised by him in the suit property. Apart from these reliefs, the appellant had not sought any other relief. If as per the case of the appellant, he is coowner of the suit property alongwith respondent no. 1, then he should have sought relief of partition of the suit property in addition to the reliefs sought in the suit. The Ld. Trial Court has rightly observed that, "The plaintiff has mentioned that he is coowner in the suit property but he has not filed the present suit for partition and also has not pressed in prayer clause regarding his any claim qua the suit property. He has filed the present suit only to restrain the defendant no. 1 from doing unauthorized construction at the suit property and to direct the defendants to remove RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 8 of 15 unauthorized construction at the suit property."
11. The Ld. Trial Court has also observed that, "Plaintiff has not disclosed in the plaint that in what capacity he is residing in H. No. RZ 9H/3A, Gali no. 3, Indira Park, Palam Colony, New Delhi. He has not filed any document showing his any right, title or interest qua the property i.e. H. No. RZ 9H/3A, Gali no. 3, Indira Park, Palam Colony, New Delhi".
12. The appellant has claimed himself to be resident of property bearing No. H. No. RZ 9H/3A, Gali no. 3, Indira Park, Palam Colony, New Delhi which address he had mentioned in the memo of parties in the suit filed before the Ld. Trial Court. The said address has also been mentioned by the appellant as his residential address in his various complaints made to the Govt. Authorities including the respondent no. 2/SDMC regarding unauthorized construction in the suit property being carried out by the respondent no. 1. The Ld. Trial Court vide order dated 24.07.2018 had directed the appellant to file an affidavit regarding status of his construction on an application moved by the respondent no. 2/SDMC in this regard in view of order of Hon'ble High RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 9 of 15 Court of Delhi in Civil Society Palam Kshestra vs. The Deputy Commissioner & Ors (supra). Pursuant to order dated 24.07.2018, the appellant filed the affidavit on 15.10.2018 before the Trial Court. Perusal of the said affidavit filed by the appellant dated 09.10.2018 would reveal that he has shown himself to be resident of House No. RZ 9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi - 110045, however in para no. 2 of the said affidavit he has declared that the said house bearing No. RZ9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi does not belong to him and he had not constructed the same. In para no. 3, he has further declared that the house No. RZ9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi to his knowledge was constructed in the year 1980 by the previous owner Smt. Shanti Devi. In para no. 4, he has declared that construction in house No. RZ9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi is old construction raised prior to 198586 and no new construction was raised in this house by him.
13. The aforesaid affidavit filed by the appellant as such is not only evasive but it is also apparent that he has concealed the fact RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 10 of 15 regarding his status in the house where he is residing. The appellant has not disclosed in the affidavit that in what capacity whether as an owner, licensee or tenant, he is residing in the house bearing No. RZ9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi, more so when he has given the said address as his residential address in all his correspondence and pleadings be it plaint, complaint or affidavit. Moreover, at one hand, he is claiming to be resident of House No. RZ9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi and at the same breath he has disowned the said house in para no. 2 of the affidavit stating that the said house does not belong to him.
14. The appellant is aggrieved by the observation of the Trial Court on the basis of affidavit filed by him that the appellant is not residing in house bearing No. RZ9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi. He contended in the present appeal that the Ld. Trial Court misinterpreted the contents of affidavit while coming to the conclusion of rejecting the plaint and failed to appreciate that the appellant before filing of the suit till date is continuously residing with his family at the address given by him in the title of the case i.e. RZ RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 11 of 15 9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi. If it is so, then it is not understandable as to why the appellant has filed an incorrect affidavit disowning the said house.
15. The Ld. Trial Court has relied upon the judgment of the Hon'ble High Court in Civil Society Palam Kshestra vs. The Deputy Commissioner & Ors. wherein the Hon'ble High Court of Delhi directed the petitioner to file an affidavit disclosing whether the house in which he resides is in authorized colony and has been constructed after obtaining sanction from the Municipal authorities observing as under: "The reason was, it being noticed by this Court that people who had built houses or were living in unauthorized colonies in houses which were constructed without a sanction, were filing in public interest, petitions that other houses in illegal and unauthorized colonies which have come up without a sanction should be demolished.
It is trite that he who seeks law to be enforced must come to the Court with clean hands and must be a person who lives by the law. A law avoider or a law violator would not have the locus standi to maintain a petition in public interest."
16. On the basis of the aforesaid observations, the Ld. Trial RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 12 of 15 Court has rightly observed that the appellant has not disclosed the fact whether construction of the house in which he is residing is authorized one or the same has been done after following the relevant by laws. The appellant even has failed to show any right, title or interest or even his possession in the house No. RZ9H/3A, Gali no. 3, Indra Park, Palam Colony, New Delhi and he himself has approached the court with unclean hands.
17. I do not find any merit in the contention of the appellant that the Ld. Trial Court could not have considered the judgment of the Hon'ble High Court of Delhi as the same had been relied upon by the respondents . Of course, while rejecting the plaint u/o 7 rule 11 CPC only averments made in the plaint and documents annexed with it are to be looked into but there is no bar in considering the binding precedent of the Hon'ble High Court or Apex Court and the same has been done by the Ld. Trial Court and it hardly matters that which party has cited the same.
18. As the appellant has claimed to be coowner of the suit property but he had not filed the suit seeking partition of the same. RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 13 of 15 Further, he has not disclosed the status of the property where he is residing. Therefore, observations made by the Ld. Trial Court are based on the averments made by the appellant in the plaint and the documents annexed with it. The Trial Court has not considered any of the defence taken by the respondent no. 2. Although the Trial Court has considered the status report filed by respondent no. 2/SDMC whereby it was informed that both the properties i.e suit property and the property where the appellant is residing have been constructed in unauthorized manner and without any sanction plan. However, I do not find any illegality in considering the said status report by the Trial Court as the same has been filed by the public authority i.e. SDMC after making the site visit.
19. It is apparent that the appellant has not approached the Court with clean hands and filed the simplicitor suit for injunction without seeking relief of partition of the suit property. If he was co owner of the suit property, then proper remedy available to him was to file suit for partition as well and simplictor suit for injunction was not maintainable. Since the appellant has also failed to show his interest in the alleged unauthorized construction carried out in the suit property RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 14 of 15 because neither he is in possession of the suit property nor he has disclosed the status of construction of the property where he is residing. Therefore, the appellant had no locus standi to file the suit against the respondents. The Ld. Trial Court has rightly observed so and rejected the plaint u/o 7 rule 11 CPC
20. In the light of aforesaid discussion, in my considered opinion, there is no illegality, infirmity or perversity in the observations made by the Ld. Trial Court in rejecting the plaint u/o 7 rule 11 CPC vide impugned order dated 20.02.2019. The impugned order is well reasoned and does not call for any interference. The present appeal filed against the impugned order is devoid of any merit and hence same is hereby dismissed. No order as to costs. Decree sheet be prepared accordingly.
21. Appeal file be consigned to Record Room.
22. TCR be sent back to the Trial Court along with copy of this Digitally signed by BALWANT BALWANT RAI judgment. RAI BANSAL Date: 2019.12.21 BANSAL 13:08:39 +0530 Announced in the open Court (Balwant Rai Bansal) th on 16 December, 2019 Additional District Judge05 (SouthWest) Dwarka Courts, New Delhi RCA No. 38/19 Brij Bhushan vs. Rajnish Verma & Ors. Page 15 of 15