Delhi High Court - Orders
Asha Gupta & Ors vs Sunil Budhraja & Ors on 28 February, 2024
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 540/2023, I.A. 16734/2023
ASHA GUPTA & ORS. ..... Plaintiffs
Through: Mr. Arun Khatri, Ms. Saumya Bajaj,
Ms. Shreya, Advs.
versus
SUNIL BUDHRAJA & ORS. ..... Defendants
Through: Ms. Aanchal Budhiraja, Adv.
Mr. Siddhant Nath, SC with Mr.
Bhavishya Makfiija, Adv.
Mr. Mohit Monga, Adv.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 28.02.2024 I.A. 2339/2024
1. This is an application under Order XII Rule 6 of CPC filed by the plaintiff seeking a decree on admission.
2. The plaintiff has filed the above said suit [CS(OS) 540/2023] seeking following prayers:
"a) Pass a decree of Damages in favour of the Plaintiffs and against the Defendants jointly and severally to the tune of Rs.
3,51,62,000/- (Rupees Three Crores Fifty One Lakhs and Sixty Two Thousand Only) with future interest @ 18% p.a. till realisation;
b) Pass a decree of Permanent Injunction in favour of the Plaintiffs and against the Defendants thereby restraining them from carrying out the construction in a dangerous/hazardous/negligent manner or in any manner detrimental to the structural integrity of the Plaintiffs or in any manner prejudicial to the peaceful, safe and vacant occupation of the Suit Property by the Plaintiffs;."
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 22:59:18
3. It is the case of the plaintiff that the plaintiff is the owner of property No. 2126/59, Naiwala, Karol Bagh, New Delhi-110005
4. The defendant is the owner of the adjoining property No. 2131/59, Naiwala, Karol Bagh.
5. It is stated that on account of construction of the basement in the property of the defendant, the building of the plaintiff has tilted by about 6 to 7 inches causing danger to the building.
6. In the present application i.e. I.A. 2339/2024, it has been stated that the defendant in the written statement has admitted as under:
" .... The MCD, Police and Fire Department Officials, all of them visited the site on 16.08.2023 and ascertained the situation and took necessary steps for damage control. Despite all the learned official's assessment, none of them found fault of the defendants and did not stop the construction work, rather they insisted that the construction work should continue with full force knowing fully well that in case the defendants do not construct their building and place girders for support, it shall cause more harm and damage to the suit property. Therefore, they allowed the construction work to continue ....."
7. It is also submitted that in FIR No. 988/2023 dated 16.08.2023, PS Karol Bagh registered by the plaintiff, the police has given a finding that on account of illegal and unauthorized digging by the defendant, the building of the plaintiff has become unsafe and has also tilted. The plaintiff also relies upon the report of the Local Commissioner to urge the above.
8. Hence, it is stated that a decree of injunction be passed in favour of the plaintiff and against the defendant, restraining the defendant from carrying out construction in a dangerous, hazardous, negligent manner in their property, based on the aforesaid admissions.
9. Ms. Budhiraja, learned counsel for the defendant Nos. 1 and 2 has This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 22:59:18 drawn my attention to para 9 of the written statement to urge that the plaintiff has only quoted selective portions of the written statement.
10. Complete para 9 reads as under:
"9. That the contents of para under reply are matter of record to the extent of registration of FIR at P.S. Karol Bagh, rest of the contents are denied in full. However, it is vehemently denied that the defendants were creating ruckus on 16.08.2023 at the site. Rather, the FIR was lodged as a mandatory procedure to be followed by the Police Officials. The MCD, Police and Fire Department Officials, all of them visited the site on 16.08.2023 and ascertained the situation and took necessary steps for damage control. Despite all the learned official's assessment, none of them found fault of the defendants and did not stop the construction work, rather they insisted that the construction work should continue with full force knowing fully well that in case the defendants do not construct their building and place girders for support, it shall cause more harm and damage to the suit property. Therefore, they allowed the construction work to continue without taking any adverse action against the defendants. That the contents of paras of preliminary submissions and objections be read as part and parcel to the para under reply and the same are not being repeated herein for the sake of brevity."
11. The para above shows that the MCD duly inspected the building of the defendant, found that the construction by the defendant was in accordance with the sanctioned plan and thereafter permitted the defendant to continue with the construction. No adverse action was taken by the defendant.
12. This Court on 29.01.2024 directed the MCD to inspect the property of the plaintiff and produce the sanction plan as well as a completion certificate of the property.
13. Mr. Nath, learned standing counsel has filed a status report, wherein it has been stated that the property of the plaintiff comprises of ground floor, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 22:59:19 first floor, second floor, third floor and fourth floor. There is no sanctioned building plan and there is no occupancy- cum- completion certificate. It is further stated that action under 344(1) and 343 of the DMC Act has been initiated with regard to unauthorized construction in the shape of addition/alteration at ground floor, first floor, second floor, third floor and complete unauthorized construction on the entire fourth floor and partly on the fifth floor.
14. The order of demolition was passed on 13.01.2017 but could not be executed. The vacation notice under section 349 of the DMC Act has also been sent to the plaintiff to vacate the premises.
15. A perusal of the status report clearly shows that it is the property of the plaintiff which is unauthorized, illegal and not according to the sanctioned plan.
16. On the other hand, the construction carried out by the defendant is as per the sanctioned plan and in accordance with the rules and procedures.
17. For the plaintiff to carry out illegal and unauthorized construction in violation of the MCD Act and then to state that his building has tilted/become unsafe on account of the actions of the defendant will permitting the plaintiff to put a premium on his illegalities.
18. A person coming to the Court must come with clean hands and must strictly adhere to the laws. A scenario where the plaintiff accuses the defendant of causing damage in his property cannot be allowed when it is actually the plaintiff whose building is illegal and contrary to municipal laws and building bye-laws.
19. The plaintiff, being guilty of blatant violations, cannot seek restraining orders against the defendant from carrying out construction This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 22:59:19 which is in accordance with law and as per sanctioned plan. It is an abuse of process of law to come to Court with unclean hands. In addition, there are no admissions of claims of the plaintiff by the defendant which can persuade the Court to pass a decree on admission. The so-called admissions alleged to have been made by the defendant are misquoted and self-serving statements of the plaintiff.
20. For the said reasons, there is no merit in the application and the application, being a mala fide application, is dismissed with costs of Rs. 40,000/- to be paid to the New Delhi Bar Association (NDBA) within 4 weeks from today. The proof of cost will be filed with the Registry.
21. However, the defendant shall ensure that the construction in his property takes place in accordance with law and as per sanctioned plan and all steps shall be taken to ensure the safety of the adjoining building.
22. The status report is taken on record.
I.A. 16734/2023 & I.A. 21968/2023
23. This is an application filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC seeking restraint against the defendants from carrying out any construction during the pendency of the suit.
24. It is stated that the defendant is carrying out illegal and unauthorized construction in the adjoining premises as a result of which the building of the plaintiff, namely property No. 2126/59, Naiwala Road, Karol Bagh has become unsafe and has tilted about by 6.8 inches.
25. Mr. Khatri, learned counsel for the plaintiff has also relied on the report of the Local Commissioner and more particularly paras 5 and 6 which This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 22:59:19 read as under:
"5. I started the spot proceedings at 04:00 P.M. After carefully inspecting both the premises, I found out that the premises of the defendant was under construction. The premises of the plaintiff was ground plus five floors building with common adjoining wall with the premises of the defendants. That due to the construction at the defendant's premises it can be said that the premises of the plaintiff has tilted by 6.8 inches approximately and that the floor of the premises of the plaintiff has subsided.
6. The premises of the plaintiff, that is, 2126/59, Naiwala Karol Bagh, has been partitioned. One part has been used for their own business and the other part, is rented for shoe business. In both the partitioned premises, the floor has subsided and whole building has tilted towards its left, while standing in front of the building."
26. This Court on 29.01.2024 directed the MCD to inspect the premises of the plaintiff and give an inspection report. The report has been given, wherein it has been stated as under:
"3. That the property bearing no. 2126/29, Naiwala, Karol Bagh, New Delhi has been inspected by the Junior Engineer (BIdg.) on 22.02.2024. The property comprises of ground floor, first floor, second floor, third floor & fourth floor. There is no sanctioned building plan. Also, there is no Occupancy-cum-Completion Certificate.
4. That action u/s 344(1) & 343 of the DMC Act had been initiated w.r.t. unauthorized construction in the shape of addition/alteration at ground floor, first floor second floor and partly third floor and complete U/C on partly third floor, entire fourth floor and partly fifth floor vide no B/UC/KBZ/2017/03 dated 09.01.2017. Order of demolition had been passed on 13.01.2017. Demolition action had been fixed for 21.06.2017 but could not be executed due to shortage of time. Subsequent demolition action had been taken on 30.05.2018 wherein, fifth floor roof had been demolished.
5. That vacation notice u/s 349 of the DMC Act has been sent to Sh. Ashok Gupta, P. No. 2126, Gali No. 58-59, Naiwala, Karol Bagh, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 22:59:19 New Delhi vide no. D/AE(B)/KBZ/2024/294 dated 23.02.2024. A copy of the same has been endorsed to the SHO, PS Karol Bagh, New Delhi with the request to get the premises vacated. Demolition action has been fixed for 01.03.2024.
27. A perusal of the same clearly shows that it is the plaintiff whose building is illegal, unauthorized and without a completion certificate. The building of the plaintiff is contrary to the MCD Act and bye- laws. Hence, the plaintiff cannot blame the tilting of his building and it being unsafe on the actions of the defendant. The defendant is carrying out construction as per the sanctioned plan. It is within the defendant's right to carry out construction in his property in accordance with law.
28. The plaintiff, having failed to approach the Court with clean hands, cannot seek interim protection from the Court.
29. For the said reasons, the present application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC of the plaintiff is dismissed.
30. I.A. 21968/2023 filed by the defendant under Order XXXIX Rule 4 read with section 151 of CPC is allowed and the interim order dated 01.09.2023 is vacated.
CS(OS) 540/2023
31. List before the Joint Registrar on 29.04.2024 for completion of pleadings.
32. Dasti JASMEET SINGH, J FEBRUARY 28, 2024/DM Click here to check corrigendum, if any This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 22:59:19