Delhi District Court
Sandeep Salaria vs Gopal Krishan on 16 April, 2026
CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN
IN THE COURT OF SH. VIVEK KUMAR AGARWAL,
JSCC/ASCJ/GJ-02 (WEST),
TIS HAZARI COURTS, DELHI.
DLWT030009982015
CS SCJ No. 427/2016 9148/16
DLWT030009982015
SH. SANDEEP SALARIA
S/o Sh. Jawahar Lal
R/o H.No. 3311, Second Floor,
Ekta Bhawan, Ranjit Nagar
New Delhi.
.....PLAINTIFF
VERSUS
1.Sh. GOPAL KRISHAN R/o D-170, First Floor, Double Storey, West Patel Nagar, New Delhi-08.
2. NORTH DELHI MUNICIPAL CORPORATION Through its Commissioner Karol Bagh Zone, Nigam Bhawan, Digitally signed D.B. Gupta Road, Anand Parbat, VIVEK by VIVEK KUMAR New Delhi. KUMAR AGARWAL AGARWAL Date:
2026.04.16 17:51:28 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 1/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN
3. Pawan Kumar Kohli S/o R. K Kohli R/o D-174(FF), West Patel Nagar, New Delhi-08.
......DEFENDANTS SUIT FOR PERMANENT AND MANDATORY INJUNCTION Judgement
1. This judgment of mine shall decide the present suit filed by plaintiff seeking the relief of permanent and mandatory injunction against the defendants.
VERSION OF PLAINTIFF:-
2. The present suit has been filed by the plaintiff seeking the relief of perpetual injunction in favour of the plaintiff and against the defendant no. 1 thereby restraining him and his agents and representatives from disposing of the roof of the courtyard forming part of Quarter No. D-169, Double Storey, West Patel Nagar, New Delhi-08 (hereinafter called as suit property). Further the plaintiff seeks the relief of mandatory injunction in favour of the plaintiff and against the defendants thereby directing them to VIVEK remove the existing illegal and unauthorized iron gate and iron grill KUMAR installed on the roof of the courtyard forming part of suit property. AGARWAL Digitally signed by VIVEK KUMAR AGARWAL Date: 2026.04.16 17:51:37 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 2/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN 2.1. As per the plaint, the case of plaintiff in brief is that the plaintiff is one of the Co-owners of Double Storey of the suit property where he is running his service center of computers and its accessories. That the defendant no.1 is the owner in occupation of quarter no. D-170. First Floor. West Patel Nagar, New Delhi which is just above the suit property. That the courtyard in front of the suit property was already covered when the quarter was purchased by the plaintiff and his wife on 28.04.2006. In the year 2009 when the plaintiff made certain renovations and minor repairs in the front courtyard of his quarter the same were booked by the MCD as unauthorized construction. An appeal with regard to the above is pending in the court D.J. Delhi. That the roof of the above said courtyard is open to sky and is the exclusive property of the plaintiff. The plaintiff uses the roof the courtyard for putting up sign boards, keeping / storing the old stuff etc. The defendant no.1 whose quarter is across the passage has no right whatsoever over the said roof. That for going to the quarter of defendant no.1 on the first floor and the roof of the courtyard of the plaintiff there is a common stair-case which is located just adjacent / besides the wall of the plaintiff's quarter in between the wall of quarter no. D-167 and suit property.
2.2. That on the night of 29.12.2014 the defendant no.1 with VIVEK KUMAR the malafide intentions to debar the entry of the plaintiff to the roof AGARWAL of the above said courtyard and to grab the roof itself, has installed Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:51:44 +0530 PAGE 3/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN an illegal and unauthorized iron gate and an iron grill at the back of the plaintiff which has been shown at point X in the site plan attached with the plaint. That on noticing the unauthorized and illegal installation of the said iron gate and iron grill on 30.12.2014 the plaintiff immediately lodged a written complaint with the Deputy Commissioner and Assistant Engineer (Bldg), North Delhi Municipal Corporation. Karol Bagh Zone. Nigam Bhawan, D.B.Gupta Road for information and necessary action. That the installation of the above said iron gate and iron grill over the roof of the plaintiff's quarter by defendants no.1 without his consent is illegal and amounts to infringement of his rights. The said action is also bad and illegal as no permission /approval has been sought from the defendant no.2. That the plaintiff has approached the defendants no. 1 several times during this period to remove the illegal and unauthorized iron gate and grill but he has failed to do so. Even the defendant no.2 which Appears to be in connivance with the defendant no.1 and failed to initiate any action for the removal of the gate so far. That since 19.1.2015 that the defendant no.1 has been threatening the plaintiff to dispose off the said roof of the courtyard alongwith his quarter to someone. The plaintiff submits that in case the defendant no.1 succeeds in doing so, an irreparable loss and injury shall accrue to the plaintiff which may not be compensated in terms of money and hence the present suit.
Digitally signed byVIVEK VIVEK KUMAR KUMAR AGARWAL Date: 2026.04.16 AGARWAL 17:51:52 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 4/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN PROCEEDINGS OF COURT
3. It is pertinent to mention that previously the plaintiff had impleaded only defendant no. 1 and 2 in the present suit. At the stage of PE, an application was moved under Order I Rule 10 CPC by the applicant Pawan Kumar Kohli and vide order dated 22.05.2024, the applicant was impleaded as a defendant in the present suit and he filed his separate WS and subsequently vod. 12.09.2025, defendant no. 3 was also allowed for cross-examination of plaintiff/PW1.
VERSION OF DEFENDANT NO. 1:-
4. As per the written statement filed by defendant no. 1, the preliminary submissions has been submitted that as there is a private common passage and stairs leading to four originally built GBP quarter nos. D-170, D-172, D174 & D-176, West Patel Nagar, Double Storey, New Delhi & other floors built on them subsequently (at present total 12 dwelling units) and the common-
passage runs through D-167(GF) and D-169(GF). That in the said passage and staircase, various types of obscene acts and illegal activities were being carried out in the past. That the strangers and unknown persons were invariably found to be urinating in the passage as well as young boys and girls were also visiting the place and indulging in indecent and objectionable acts. The salesmen, VIVEK professionals and customers visiting Aerocom Systems(D-169, GF) KUMAR belonging to plaintiff, used to gather & crowd in the passage AGARWAL Digitally signed by VIVEK KUMAR (Vivek Kumar Agarwal) AGARWAL (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), Date: 2026.04.16 17:51:59 +0530 PAGE 5/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN causing obstruction in the way, much to the annoyance and discomfort of the residents of upper floors. Due to this problem, there were tiffs, altercations and troubles in the past. That because of no hindrance in the passage and stairs upto third floor, the stray dogs also used to come upstairs for devouring the remains of the left out food kept in the dustbins and garbage bags. As a result thereof, in the morning, the residents had to face obnoxious sight of the bones and filth lying scattered here and there in the passage and stairs. That barking and fighting of street dogs on passage & stairs during night hours was also a prominent feature. That several incidents of canine bites in the passage during odd hours had taken place in the locality in the past. That minor thefts had also been reported in the flats. Moreover, there is large scale unauthorized and illegal construction in property no. D-169(GF) (alleged to be owned by plaintiff) and its roof/terrace falls in close proximity to the stairs in front of D-170(FF). Ever since its construction in 2009, the said roof was lying in an abandoned, unclaimed and unattended state and due to there being no obstruction in its approachability---vagabonds, mischievous and anti social elements visited the terrace and indulged in all types of uncalled for, immoral and mischievous activities like gambling, consumption of liquor, taking drugs and urinating in open. That the unscrupulous elements of the society had also started throwing poly bags full of garbage etc on the terrace. All VIVEK KUMAR these acts and activities of foul and nasty nature constituting public AGARWAL Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:52:06 +0530 PAGE 6/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN nuisances of all sorts needed to be curbed to restore peaceful and hassle-free lives of the people living in the vicinity. 4.1. It is further stated that in order to eradicate and solve the above mentioned problems, all the residents / occupiers of 12 upper floor accommodations held a meeting on 23/11/2014 and jointly took a decision to install two small iron gates, one at the entry point of common passage between D-167(GF) & D-169(GF) and another at the point of entry on the terrace of illegally covered courtyard of D-169(GF) in front of D-170(FF). All the residents/occupiers who were the exclusive users of the private passage and stairs had no objection to the installation of the gates and had unanimously and voluntarily agreed to contribute money towards the cost of manufacturing and erection of the gates. There was no problem in installing the small gate on the terrace in front of D-170 (FF) because def. no. 2, who is the owner of said house and is using the terrace as conventional right like others in double story colony of West Patel Nagar, had agreed to the proposal. Therefore, keeping the problems & hardships faced by the residents of upper floors and larger public interest in mind, a small gate was installed at at the entry point of roof of illegal courtyard of D-169 (GF). As such being a close neighbour the plaintiff, despite having knowledge of all the facts as aforesaid, has deliberately not revealed them due to his oblique motive. Digitally signed by VIVEK VIVEK KUMAR AGARWAL KUMAR Date:
AGARWAL 2026.04.16
17:52:13
+0530
(Vivek Kumar Agarwal)
(JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 7/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN 4.2. It is further submitted that the plaintiff has also suppressed and concealed the material facts from this Hon'ble court that one Shri Pawan Kumar Kohli r/o D-174(FF), W.P.Nagar, New Delhi had filed a civil suit vide CS No.290/2009 against the plaintiff in 2009 whereupon MCD had issued a show cause notice to plaintiff for illegal and unauthorized construction on his property vide F.No. B/UC/KBZ/09/164 dated 13/07/09 and consequently demolition order dated 22/07/09 was passed. In the meantime during the pendency of the above mentioned suit, the Hon'ble Court of ASCJ, Delhi had also appointed Sh. Sanjay Gupta, Advocate, as Local Commissioner, who, in the company of one Architect namely Sh. Ratnakar Nama, on the directions of court, inspected the premises no. D-169, W.P. Nagar on 25-05-2009 at 5:00 PM. On inspection of the property, alleged to be belonging to plaintiff, the said Local Commissioner and the Architect submitted their reports in the court on dated 01-09-2009 wherein it was interalia mentioned that the construction in the disputed portion of the property was only one month old which nailed the plea of the plaintiff herein that he had not made any fresh unauthorized construction and had only carried out repairs and renovation in his property. Thereafter, the plaintiff filed Appeal No. 259/2009 before the Hon'ble Appellate Tribunal of MCD on dated 15/09/2009 against the demolition order. During the pendency of appeal, the plaintiff also moved an application before VIVEK MCD for regularization of unauthorized construction of his KUMAR AGARWAL property. His said application was rejected on 05/08/2013 by the Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), Date: 2026.04.16 17:52:21 +0530 PAGE 8/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN competent authority of MCD (North) as plaintiff had failed to demolish the portion which was beyond Standard Plan. Consequently, plaintiff's Appeal No.259/09 was also dismissed by Ld. AT MCD on 19/08/2013 on the basis of materials and photographs submitted by said Sh. Pawan Kumar Kohli therefore, it was Sh. Pawan Kumar Kohli only who had done spade work in exposing and nailing the falsehood resorted to by the plaintiff and it was due to his active assistance that the Ld. ATMCD could make a just decision in the appeal.
4.3. That the plaintiff has no locus standi to file the instant suit, because neither he is the user of the common-passage/ stairs leading to the upper floors nor the owner of the terrace of illegally covered courtyard pertaining to D-169, West Patel Nagar, New Delhi. That as a matter of fact, an area of 35.6 feet X 6.0 feet in front of House No. D-169 (GF), which is in the form of excess coverage, is unauthorized and illegal as per MCD's records. As such the said area does not belong to the plaintiff and is not owned by him. That the fact of unauthorized and illegal excessive coverage in front of his property by the plaintiff stands established before the Hon'ble Appellate Tribunal of MCD in its judgment dated 19.08.2013 in Appeal No. 259/2009 whereby the plaintiff had challenged the demolition order dated 22.07.2009 passed by MCD VIVEK KUMAR (North), Karol Bagh Zone. Under such circumstances, the suit of the AGARWAL plaintiff is not maintainable and is liable to be dismissed because Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:52:28 +0530 PAGE 9/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN plaintiff cannot claim any legal right over the roof of courtyard which is in itself an illegal and unauthorized construction. 4.4. It is further submitted that in his complaints to MCD filed along with the plaint, the plaintiff has himself admitted that a matter in respect of the structure is pending in the Hon'ble Court of District Judge, Delhi in which, it is stated, a stay has been granted. However, the plaintiff has not brought any such stay-order on record to substantiate his plea. Under such circumstances, there is no denying the fact that filing of the present suit by the plaintiff is against the policy of the courts as well as legislature to minimize the litigation and avoid multiplicity of proceedings. The Hon'ble Court of District Judge was fully empowered to pass any order and grant any relief in connection with and in respect of the property in question as deemed fit, had the plaintiff approached the said court. Further, in the plaint, it has not been stated that there was no other proper and efficacious remedy available to plaintiff except to file the present suit which implies that the plaintiff has not exhausted the other equally efficacious remedy available to him by acting in over haste. Therefore, the present irresponsible suit needs to be nipped in bud. That on one hand the plaintiff has not highlighted any problem or inconvenience faced by him on account of erection of gate, on the other hand he has completely overlooked, ignored and trivialized the VIVEK problems and hardships faced by the defendant no. 1 and his other KUMAR AGARWAL neighbours who have overcome their safety & security concerns and Digitally signed have heaved a sigh of relief due to installation of gate in question. by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:52:34 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 10/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN 4.5. It is denied that plaintiff uses the roof for putting up sign-boards, keeping/storing the old stuff etc. That in the plaint, the plaintiff has shown himself to be residing at H. No. 3311, 2nd Floor, Ekta Bhawan, Ranjit Nagar, New Delhi, whereas in the affidavits filed with the plaint as well as application for interim-stay, he is stated to be residing at D-169, West Patel Nagar, N. Delhi for the reasons best known to him. The ambiguity regarding the residential address of the plaintiff is a material infirmity and goes to the root of the lis. That the suit is bad on account of non-joinder of the necessary parties. As all the owners/ occupiers of the 12 dwelling units situated on three floors of house nos D-170, D-172. D-174 and D-176 above had jointly erected the gate by making monetary contribution towards the same, therefore, being the stakeholders they were necessarily required to be made parties. Moreover, without impleading them as parties, it is not possible to pass an effective decree of binding nature against them. Since other neighbours are on the same footing as def. no.1, the real matter in controversy cannot be effectively adjudicated upon without determining the right and interests of such neighbours. This fact is very much in the knowledge of the plaintiff being a close neighbour. That the plaintiff has not delivered statutory legal notice u/s 478 DMC Act to NDMC (def. no. 2) before instituting the present suit and the plaint is also bereft of such statement as envisaged under Digitally signed Sub-Section (1) of the provision. VIVEK by VIVEK KUMAR KUMAR AGARWAL AGARWAL Date: 2026.04.16 17:52:39 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 11/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN 4.6. In the reply on merits, it is submitted that the onus of proving his ownership of quarter No. D-169, GF, WP Nagar, N. Delhi, lies on the plaintiff. As a matter of fact, the copy of Sale- Deed filed by the plaintiff itself shows the area of the property no. D-169 (GF) to be 254 sq. feet as on the date of purchase i.e. 28.04.2006 (kindly see page no. 18 of paper book). In April 2009 when the plaintiff embarked upon large-scale construction in the courtyard by encroaching upon the Municipal land, one of his aggrieved neighbour namely Sh. Pawan Kumar Kohli filled a civil suit for permanent and mandatory injunction against the property no. D-169 (GF). During the pendency of that CS No. 290/2009, on 25.05.2009 the Hon'ble Court of Sh. Vinay Singhal, ASCJ, Delhi appointed Sh. Sanjay Gupta as Local Commissioner who visited the premises no. D-169 in the company of one Architect Sh. Ratnakar Nama and submitted his report in the court on dated 01.09.2009 wherein it was interalia mentioned that the construction in the disputed portion of the property was only one month old which nailed down the plea of the plaintiff herein that he had not made any fresh unauthorized construction and had only carried out repairs and renovation in his property, MCD who was def no. 3 in the said suit passed a demolition order vide File No. B/UC/KBZ/09/154 dt. 22.07.2009. It is submitted in reply that in the present suit regarding VIVEK the gate installed on the entry point of the roof, the plaintiff has KUMAR alleged that he is using the roof for putting up sign-boards and AGARWAL storing old stuff etc and has sought removal of the gate, whereas in Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:52:46 +0530 PAGE 12/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN his complaints to the def. no. 2 (MCD), the plaintiff has only stated that def. no. 1 has erected a wall type iron grill and gate on the roof of D-169 which structure has been stayed by the Hon'ble court of Distt. and Session Judge, Delhi. However, in another suit pending in the Hon'ble Court of Sh. Sameer Bajpai, CJ Delhi titled as Sandeep Salaria Vs. Pavan Kumar Kohli & Ors. being CS No. 6/2015, this same plaintiff has alleged that he has to go to the terrace of his quarter for maintenance and repairs of the roof whereas in the complaints to MCD in the said another suit, the plaintiff has alleged that installing the iron gate amounts to contempt of court and violation of his right to property.
4.7. It is further submitted that in the whole Double-Story quarters of West Patel Nagar and other Rehabilitation Colonies of Delhi, as per convention and usage, it is the occupier residing on first floor who uses the terrace of whatever construction, legal or illegal, carried out, on the ground floor. There is not even a single precedent where ground floor owner is using the roof of his courtyard on first floor. As such the def. no. 1 is in possession of & using the roof of illegally covered courtyard of the plaintiff, which falls in front of the quarter no. D-170 (FF) belonging to the def. no.
1. However, in eat manner and on what basis the plaintiff is claiming himself to be the exclusive owner of the roof of the VIVEK KUMAR courtyard is a mystery to be solved especially in view of the AGARWAL admitted fact that his property was booked by MCD as unauthorized Digitally signed by VIVEK KUMAR (Vivek Kumar Agarwal) AGARWAL (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), Date: 2026.04.16 17:52:53 +0530 PAGE 13/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN construction in 2009. Nobody can assert and claim any legal right over the roof of a construction which is itself unauthorized and illegal because the law does not recognize any such legal right. It is again submitted that the said stairs and common passage is private and exclusively meant for originally built GBP quarter nos. D-170, D-172, D-174 and D-176, W.P. Nagar, Double Storey Quarters, built on the upper (First) floor. However, other floors (2nd and 3rd), built on the said quarters subsequently, which are at present 12 dwelling units, are using the said private passage and stairs on account of legal right for going upstairs and no ground floor occupier can claim access to common-passage & stairs as a matter of right. It is submitted that the plaintiff has absolutely got no legal right to go to the roof of his courtyard which is itself an illegal and unauthorized construction. The site plan attached with the plaint is gnedly false because adjoining to flat no. D-167 (GF) there is flat no. 165 (GF) and not D 163 (GF) as shown in the plan. Likewise, adjoining to house no. D-168 (1F) there is house no. D-166 (FF) and not D-164 (FF) as wrongly shown in the dte- plan. Further, the location of gate has been shown inside the quarter no. D-170 (FF) which is wrong and incorrect because the gate stands erected in front the quarter no. D-170 (FF) across the common- passage which is only 4 feet wide. It is specifically denied that installation of the above said iron gate and iron grill over the roof of the plaintiff's quarter by def. no. 1 VIVEK KUMAR without his consent is illegal and amounts to infringement of his AGARWAL rights. It is submitted that the plaintiff has no legal right or lien over Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:53:00 +0530 PAGE 14/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN the roof of his illegally constructed courtyard and neither any permission from the plaintiff nor from def. no.2 to install a small gate for security and safety purpose was required to be sought.
VERSION OF DEFENDANT NO. 2 /NORTH DMC
5. As per the written statement filed by defendant no. 2, the preliminary objections has been taken that the present suit is not maintainable for want of statutory notice U/s 477/478 of DMC Act 1957, which is mandatory in nature. Hence the suit is liable to be dismissed. That there is no cause of action against the answering defendant MCD hence the suit is liable to be dismissed under order VII Rule 11 of CPC. It is submitted that site has been inspected by the concern JE(B)/KBZ on 08.09.2015 and found that no construction activity is going on, no building material stack at site i.e. property bearing B-169, Double Storey, West Patel Nagar, New Delhi. The Iron Gate installed on the wall of quarter no. D-169, D/s, West Patel Nagar without permission from the answering defendant which is liable to be removed and the present suit is not maintainable since the same has been filed by the tiff only to settle his personal scores with defendants. Hence, the suit is liable to be dismissed. VIVEK 5.1. In reply on merits, it is submitted that as per record KUMAR unauthorized construction in property bearing no. D-169, Double AGARWAL Storey, Ramesh Nagar, New Delhi was booked vide file No. Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:53:08 +0530 PAGE 15/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN B/UC/KBZ/09/164 dt. 13.07.2009 in the shape of excess coverage of Ground Floor. It is submitted that at the time of inspection i.e. on 08.09.2015 no construction was found in progress. The Iron Gate installed on the wall of quarter no. D-169, D/s, West Patel Nagar without permission from the answering defendant which is liable to be removed.
VERSION OF DEFENDANT NO. 36. As per the written statement filed by defendant no. 3, the preliminary submissions have been made that adjoining property no. D-169 (Ground Floor), West Patel Nagar, New Delhi, runs a common-passage and cemented stairs leading to 12 flats on upper floors. It is submitted that originally property no. D-169(GF) was separated from common-passage & stairs by a parapet wall of 4 feet height from Ground Floor to First Floor throughout up to the front- side of property no. D-170 (FF). It is submitted that in the year 2009, the plaintiff had raised large-scale unauthorised and illegal construction by extensively covering the open space in front of his quarter beyond the front setback up to footpath on the road. For making such unauthorised construction, the plaintiff raised the height of parapet wall up to about 11 feet for laying lanter over such additional coverage. Not only this, the plaintiff also demolishedVIVEK KUMAR some portion of the parapet wall in front side of property no. D-170AGARWAL (FF) to carve out an entrance for reaching the roof of his illegally Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), Date: 2026.04.16 17:53:14 +0530 PAGE 16/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN covered alleged courtyard, thereby subjecting and leaving the roof open to misuse without any gate. Not content with such huge unauthorised construction on the front portion of his property, the plaintiff also constructed two stairs/footsteps covering two feet of land illegally on the pavement itself for gaining entry into his shop. It is further submitted that on 22/07/2009, MCD had passed a demolition order against the property of plaintiff However, the plaintiff managed the pliable MCD and with a view to protract and ward off demolition action, the plaintiff moved an application for regularisation before Ld. Authority of MCD as well as filed an appeal before Ld. ATMCD. It is also submitted that being emboldened by his success in having kept the demolition action in abeyance, the plaintiff started using his purely residential property solely for commercial purpose in the name and style of "Aerocom Systems" dealing in computers and accessories without formal conversion and paying conversion charges to MCD. Resultantly, salesmen, professionals and customers visiting the commercial establishment of the plaintiff started gathering and crowding in the passage causing hindrance, annoyance and discomfort to the residents of upper floors. Young boys and girls also started visiting the common passage & indulging in indecent, vulgar and objectionable acts. It is further submitted that anti-social elements, vagabonds and strangers were spotted on the roof of the illegally covered courtyard because the same was open to sky and accessible Digitally signed by VIVEK to all and sundry without any gate to regulate its entry. Such people VIVEK KUMAR AGARWAL KUMAR AGARWAL Date:
2026.04.16 (Vivek Kumar Agarwal) 17:53:20 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), +0530 PAGE 17/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN started creating and indulging in all sorts of unwanted activities amounting to public nuisances. More often than not, such mischievous elements were noticed being engaged in immoral and illegal activities like gambling, consuming liquor and drugs and urinating in full public view. Stray dogs also used to come upstairs due to unhindered access to stairs and the roof in question. Incidents of dog-bites and thefts were also reported. That due to the above- mentioned problems and difficulties the occupants of upper floors suffered inconvenience, discomfort and embarrassment which were triggered by the indifference, apathy and inaction of the plaintiff. Written complaint to local police also and not bear any fruitful result. However, by all means the above said instances of of the neighbours. Therefore, in order to get rid of the above stated problems and attendant compelling circumstances, all the occupiers of 12 flats on upper floors principally agreed to install two small gates one at the entry point of common-passage on Ground Floor and another at the entrance of roof where earlier parapet wall was broken by the plaintiff in front of D-170(FF) to pave way for going to the roof. Accordingly, a letter was shot off to Executive Engineer (Building) of Karol Bagh Zone, MCD, New Delhi for seeking permission to erect the gate and iron grill at the entrance of roof, by VIVEK answering defendant as desired and requested by all the neighbours.
KUMAR A formal meeting of residents was also called on 23/11/2014 and AGARWAL their monetary contribution was collected. Thereafter, a small gate Digitally signed and grill on the parapet wall was installed at and near the entrance by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:53:29 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 18/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN of roof respectively on 29/12/2014. It is submitted that the gate installed on the ground floor at the entrance of common-passage is the subject matter of another suit filed by the plaintiff.
6.1. As per the written statement filed by defendant no. 1, the preliminary objections has been taken that the plaintiff has not approached this Hon'ble Court with clean hands as he has suppressed the material facts and concealed documents which tend to disentitle him from claiming equitable and discretionary relief of injunction. It is submitted that the plaintiff has resorted to pick and choose of facts and has not made full and complete disclosure of all material and relevant facts. Further, since because the plaintiff himself has acted in an unfair and unequitable manner, he cannot seek assistance of the court by taking advantage of his own wrongs.
That on his own volition, the plaintiff has chosen not to amend his plaint despite opportunities granted. Resultantly, the significant developments subsequent to the filing of instant suit on 05/02/2015 have not come on record, which completely falsify and belie the core allegations contained in the plaint. That the plaintiff has failed to show any clear right to sue in the present suit, as he is neither the owner of the roof of his alleged courtyard, nor in physical possession of the roof going by his own averments in the plaint. The VIVEK present suit is manifestly bogus vexatious and meritless in the sense KUMAR AGARWAL of not disclosing clear right to sue. The sheer abuse of the process of Digitally signed law and is liable to be dismissed. That the suit is bad in law on by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:53:38 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 19/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN account of non-joinder of all the necessary parties. It is submitted that all the owners/occupiers of 12 dwelling units situated on upper floors. D-170 80 D-178 had jointly erected the gate in question by making monetary contribution towards its installation. Therefore being the important stakeholders all other neighbours as aforesaid were necessarily required to be made parties. Being a close neighbour, the plaintiff knew it very well that others, who have not been joined as defendants, were also involved in the installation of gate. As such, the plaintiff wants to claim relief behind their back.
6.2. It is submitted that the present suit is also barred by law due to want of prior mandatory legal notice u/s 477/478 DMC Act served to the agents and officials of MCD. The present suit was filed on 05/02/2015 after the erection of gate on 29/12/2014 as per the averments contained in the plaint. Neither any urgency has been shown, nor it has been pleaded that the purpose of filing the suit would have been defeated, so as to justify the dispensing with of the statutory notice in terms of sub-section (3) of Sec. 478 of DMC Act. Further, in terms of sub-section (1) of Section 478 of DMC Act, the plaint does not contain any mandatory statement as regards the delivery of statutory notice or otherwise Likewise, there is nothing in the plaint even as regards the non-delivery of mandatory prior VIVEK notice or to claim waiver of such notice Therefore, Therefore, the KUMAR AGARWAL statutory bar u/s 477/478 DMC Act.
Digitally signed by VIVEK KUMAR AGARWAL Date: 2026.04.16(Vivek Kumar Agarwal) 17:53:52 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 20/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN 6.3. It is further stated that though the plaintiff has claimed the roof to be his exclusive property, yet he has not filed any documentary evidence to show that the roof and illegally covered courtyard underneath it, are lawfully owned by him. However, the plaintiff has himself admitted the total excess coverage of area measuring 364.455 sq. feet (33.85 sq.mt.), out of which an area of 156.03 sq feet (14.49 sq.mt.) falls on front side whereas an area of 208.425 sq. feet (19.36 sq. mt.) falls on the rear side of his property, though as per sale-deed, the plaintiff had only purchased 254 sq feet built-up area. Further, according to letter dated 13/02/2013 of MCD, the measurements of encroached area comes to be 494.1 sq. feet, which means the plaintiff has understated the extent of excess coverage area in his property. As per factual position, the whole structure of courtyard has been declared to be unauthorised not only by MCD, but also by various judicial fora. The plaintiff has concealed this material fact from this Hon'ble Court as well as the orders of the courts. Further, in other words, in the Double Storey Colony of West Patel Nagar, the plaintiff is seeking a legal right over the roof at first floor level which falls in front of property no. D-170(FF)---belonging to defendant no. 1. Further, the plaintiff is admittedly out of possession of roof due to installation of gate in question which, on his own volition, is kept locked all the times VIVEK However, under the gars of present suit for injunction simpliciter, KUMAR AGARWAL the plaintiff is cleverly seeking to recover possession of roof.
Digitally signedTherefore, there is no gainsaying the fact that the plaintiff has by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:53:58 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 21/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN planted scrutiny and meaningful reading of the plaint discloses no cause of action, hence the unfounded allegations to create an illusionary cause of action. It is also pertinent to note that the plaintiff has filed the instant suit by not showing his residence at D- 169 (GF), West Patel Nagar, but from some other place in Ranjit Nagar. That the plaintiff has himself perpetuated illegality by making 8. large-scale unauthorised construction by encroaching land in front of his property beyond its front setback up to the pavement on the road and is facing the threat of demolition by MCD after having lost the matter at all fora. However, the plaintiff has suppressed and concealed all the orders passed by MCD as well as judicial fora which have gone against him. It is further stated that on one hand, it is alleged in the plaint that construction in front courtyard of D-169(FF) was booked by MCD for unauthorised construction, on the other hand, it has been alleged that the roof over courtyard is exclusive property of the plaintiff. 6.4. In reply on merits, it is submitted that the co- ownership status of plaintiff is not denied. It is submitted that plaintiff started using his purely residential property for commercial purpose without formal conversion and paying any conversion charges to MCD. It is submitted in reply to corresponding para that the whole front portion of his property was open to sky and not covered in 2006 when the property was purchased. It is submitted VIVEK that admittedly in the year 2009, the plaintiff had raised large-scale KUMAR AGARWAL unauthorised construction in the front as well as back portion of his Digitally signed by VIVEK KUMAR (Vivek Kumar Agarwal) AGARWAL (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), Date: 2026.04.16 17:54:04 +0530 PAGE 22/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN property. It is submitted that during the course of proceedings taken on planes application for regularisation, the plaintiff himself has submitted documents which and falsify his version in the plaint that he was repairing and renovating his Judgment dated 19/08/2013 that the plaintiff had made fresh and new construction in when it was booked by MCD. Further there are categorical findings in Ld. ATMCD-his courtyard and that he had not got any lease deed executed in respect of the excess area, meaning thereby that the plaintiff was not the owner of that front portion where questionable unauthorised construction existed. In the para under reply, the plaintiff has skillfully made a passing reference to the booking of his property by MCD for U/C, but has deftly concealed the fact that his application stood rejected by MCD on 05/08/2013 and his appeal against the demolition order before ATMCD had also been dismissed on 19/08/2013, long before the filing of the present suit on 05/02/2015. Still further, at present the plaintiff's Regular Civil Appeal, as alluded to in the para under reference, has also been dismissed by Ld. PD & SJ, West, Delhi vide judgment dated 23/09/2022 whereby the judgment of Ld Tribunal and demolition order have been upheld. Further, as per the traditional usage and conventions in Double Storey flats of W. P. Nagar, it is the occupier construction--legal or otherwise, done on the Ground Floor. It is next to impossible to infoor who uses the terrace of whatever VIVEK KUMAR construction legal or otherwise, done on the ground floor. It is next AGARWAL to impossible to find a single example where ground floor occupier Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), Date: 2026.04.16 PAGE 23/39 16.04.2026 17:54:12 +0530 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN is using the roof of his courtyard. Even otherwise also the plea of the plaintiff that root is his exclusive property dashes appellant/plaintiff has not produced any document to show that he has got the lease to ground in view of the categorical finding of the Ld. AT MCD to the effect that deed executed in respect of the excess area thus covered. Therefore the specious plea of the plaintiff regarding exclusive ownership of the roof vanishes into air. It was only in 2009 when the alleged courtyard was illegally covered by the plaintiff that the roof came into existence. The stairs are meant to be used by the upper floor residents only, whereas the plaintiff, whose property is situated on ground floor, has no right to go upstairs for the purpose of accessing the roof in an unauthorised manner. It is submitted that no ground floor occupier like plaintiff can claim access to common-passage and stairs as a matter of right. It is submitted in reply that the roof of the so-called courtyard is itself in the form of an illegal construction and is facing constant threat of demolition by the agents and officials of defendant no. 2 (MCD). The plaintiff has no right to visit the roof of the courtyard and he cannot be permitted to reap the benefits of his own wrongful acts. Rather, the plaintiff still has expansionist plans to make further unauthorised construction on the roof by thwarting the demolition process and winning over MCD. It is submitted that it was the plaintiff who had himself created circumstances compelling for the VIVEK KUMAR installation of the gate to get rid of the problems and hardships faced AGARWAL by the residents of the upper floors. In the para under reply, the Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:54:21 +0530 PAGE 24/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN plaintiff has made false and fabricated averments to constitute an illusionary cause of action. The site-plan attached with the 6. plaint is further wrong and incorrect. It is submitted that no permission was required sought from MCD for installation of small gate for security and safety purpose where a parapet wall, already existing, was demolished by the plaintiff to make a way for going to the roof. It is submitted that even then being law-abiding citizens, the defendants had sought permission from MCD and the same was not denied within the stipulated time and thereafter the gate was erected. However, the plaintiff who himself is guilty of perpetuating illegal and unauthorised construction cannot be heard preaching sermons to others to follow law. It is submitted that since the relations between the parties are strained for the last many years even prior to the installation of gate, therefore, the question of plaintiff having approached the defendants for removal of gate does not arise. It is submitted that no action was called for on the part of defendant no.2 for removal of gate due to acquiescence.
REPLICATION
7. In the replication filed on behalf of plaintiff to the WS of the defendant no. 1, 2 and 3 all the averments of plaint are reiterated and allegations of WS are denied. Digitally signed by VIVEK VIVEK KUMAR AGARWAL KUMAR Date:
AGARWAL 2026.04.16
17:54:29
+0530
(Vivek Kumar Agarwal)
(JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 25/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN ISSUES
8. After completion of pleadings issues were framed by Ld. Predecessor vide order dt. 11.04.2017, however said issues were modified 12.09.2025 as follows :-
Issue no.1 :- Whether the plaintiff has got no locus standi to file instant suit? OPD.
Issue no.1(a) :- Whether the present suit is barred u/S 41 of Specific Relief Act? OPD3.
Issue no.2 :- Whether the plaintiff has not approached with clean hand and has suppressed and concealed material facts and documents, in terms of preliminary submissions, paragraph no. 1 and 2, in WS of the defendant no. 1? OPD.
Issue no.3 :- Whether the suit of plaintiff is bad for non joinder of necessary parties? OPD.
Issue no.4 :- Whether the plaintiff is not in physical possession of roof of illegal constructed courtyard? OPD. Issue no.5 :- Whether the plaintiff is entitled to relief of perpetual injunction as prayed for? OPP Issue no.6 :- Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPD. Digitally signed by VIVEK Issue no.7 :- Any other, relief. VIVEK KUMAR KUMAR AGARWAL AGARWAL Date:
2026.04.16 17:54:38 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 26/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN Evidence of plaintiff:-
9. In plaintiff evidence, plaintiff examined himself as PW1 who tendered his evidence by way of affidavit as Ex. PW1/A and relied on the following documents:-
Photocopy of Sale Deed i.e. Ex. PW1/1(OSR). Photocopy of order dt. 09.10.2023 passed by District Judge West i.e. Mark A. Site Plan i.e. Ex. PW1/3.
Letter dt. 30.12.2014 issued to DC North Delhi Municipal Corporation i.e. Ex.PW1/4(OSR).
Letter dt. 30.12.2014 issue to AE, North Delhi Municipal Corporation i.e. Ex.PW1/5(OSR).
Photographs i.e. Ex.PW1/6(colly).
9.1. Thereafter the witness has been cross-examined accordingly. In his cross-examination several documents were taken on record Ex. P1 and PW1/D3A to Ex. PW1/D3G and then PE has been closed vide separate statement dt. 19.02.2024.
Evidence of Defendant:-
10. In defendant evidence, the defendant no. 3 examinedVIVEK himself as D3W1 and tendered his evidence by way of affidavit as KUMAR AGARWAL Ex. DW3/1 and relief upon some documents as Ex. D3W1/A to Ex.
D3W1/C. Defendant no. 1 and 2 have not lead any evidence on theirDigitally signed by VIVEK KUMAR AGARWAL behalf. DE was closed vod. 23.01.2026. Date: 2026.04.16 17:54:44 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 27/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN FINDINGS
11. The arguments advanced by Ld. Counsel for both the parties have been heard at length and file has been carefully and minutely perused including the written submissions filed on behalf of plaintiff as well as defendant no. 3 and my issues wise findings with reasons thereof are as under:-
ISSUE NO. 112. The onus to prove this issue was upon the defendants. It has been argued on behalf of defendants that as plaintiff is neither the owner nor in possession of the roof in question and again as plaintiff has also failed to show any right of plaintiff being infringed, plaintiff has no locus standi to file the present suit. On the other hand, it is submitted on behalf of plaintiff that the present suit has been filed for removal of iron gate which was illegally installed by defendant no. 1. That as per the status report filed by the MCD / Defendant no. 2, the said gate was installed without permission and was liable to be removed. That the said gate was a direct interference in the possession of plaintiff on the terrace / roof of his courtyard and therefore, there was no question with respect to locus standi of the plaintiff to file the present suit.
VIVEK 12.1. Heard. It is observed that on perusal of the plaint of the KUMAR present suit as well as the evidence of plaintiff, it is reflected that AGARWAL Digitally signed by VIVEK KUMAR (Vivek Kumar Agarwal) AGARWAL (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), Date: 2026.04.16 PAGE 28/39 16.04.2026 17:54:49 +0530 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN plaintiff has claimed his access to the roof of his property bearing no. D-169, Ground Floor, as being the exclusive owner of the said roof, however, except his own self serving statement, plaintiff has failed to prove his ownership in the said roof. As reflected from the Sale Deed i.e. Ex.PW1/1, the roof of the said property was never sold to the plaintiff by the vendor and therefore, the plaintiff never became the owner of the said roof. Moreover, as reflected from the cross-examination of plaintiff / PW-1, he himself admitted that he had no authority to go on the first floor of the said property. Accordingly, it is very apparent that when plaintiff was not having any right or title in the roof of the said property, no question arises for any injunction in favor of plaintiff qua the said roof. It is not the case of plaintiff that his access to the roof was required for purpose of some essential amenities.
12.2. It is further observed that admittedly plaintiff had previously filed a suit against the same defendants qua the same property and had sought the relief of permanent injunction against defendant no. 1 and 2 in that suit (defendant no. 1 and 3 in the present suit) to restrain them from carrying out any activity of putting up locks / lever over the iron gate installed between the wall of Q.No. D-167 and D-169, Double-Story, West Patel Nagar and had VIVEK further sought the relief of mandatory injunction for removal of said KUMAR gate. Now, as reflected from the certified copy of judgment dt. AGARWAL 02.09.2025 passed by the Court of Ld. ASCJ/JSCC/GJ-01, West Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:54:55 +0530 PAGE 29/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN THC, the said suit of the plaintiff was dismissed and it was specifically observed by the Court that the plaintiff was not having any right in the roof of property bearing no. D-169, as it was never sold to him by the vendor and at the most he could claim his right to have access to the roof for maintenance of his water tanks / other essential amenities. The said judgment being between both the parties certainly obtains as Res Judicata qua the subject matter involved in the previous suit as well as in the present suit and therefore, even on the basis of findings in the said judgment, the plaintiff was not having any locus to file the suit with respect to the roof in question.
Accordingly, Issue no. 1 is decided against the plaintiff.
ISSUE NO. 1(a)
13. As observed in the order dt. 12.09.2025, said issue was framed on the basis of the submission on behalf of defendant no. 3 that suit was barred u/S 41 of SRA for non-compliance of Section 477/478 of DMC Act.
13.1. The onus to prove this issue was upon the defendant no. 3 and it has been submitted by counsel for defendant no. 3 that suit was apparently barred in view of the absence of the mandatory notice as provided u/S 477/478 of DMC Act. Digitally signed by VIVEK VIVEK KUMAR AGARWAL KUMAR Date:
AGARWAL 2026.04.16
17:55:00
+0530
(Vivek Kumar Agarwal)
(JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 30/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN 13.2. It is observed that as provided u/S 478(3) of DMC Act, the bar provided u/S 478(1) of DMC Act is not applicable, where the only relief of injunction has been sought and where the object of the suit would be defeated by giving of notice or by postponement of the suit. Now, as reflected from the plaint itself, the iron gate / grill in question was allegedly installed by defendant no. 1 on 29.12.2014 and present suit was filed on 06.02.2015. Again it is not the case that removal of said iron gate / grill was very urgent in nature and therefore, it was not the case that by giving notice, the objective of the suit would have been frustrated. The counsel for plaintiff has failed to provide any justification in this regard. Accordingly suit is apparently bad for non-compliance of Section 478(1) of DMC Act and therefore, the suit without the said compliance was not maintainable. Accordingly, issue no. 1(a) is decided against the plaintiff and in favour of the defendant no. 3.
ISSUE NO. 2 :-
14. In this regard, it has been submitted by the defendant no. 2 that the plaintiff had suppressed the demolition order i.e. Ex.PW1/D3A and had also suppressed about the dismissal of the appeal against the said demolition order vide judgment i.e. VIVEK Ex.PW1/D3C. It has been further submitted that it was not for the KUMAR plaintiff to decide that which fact was material or not and in this AGARWAL regard reliance is also placed on some judgements, as mentioned in Digitally signed by VIVEK KUMAR the written submissions. On the other hand, no explanation has been AGARWAL Date: 2026.04.16 17:55:06 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 31/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN given on behalf of plaintiff regarding suppression of said demolition order and the judgment of ATMCD.
14.1. It is observed that as reflected from the plaint, the plaintiff no where disclosed in the entire plaint about the demolition order passed by the MCD and also about the dismissal of appeal against the said demolition order. As reflected from the cross-
examination of plaintiff / PW-1, the demolition order Ex.PW1/D3A was passed by the MCD qua the property of plaintiff and the appeal filed against the same was also dismissed vide judgement Ex.PW1/D3C. The said fact of demolition order and dismissal of appeal was certainly very material in the present suit, as it pertained to the very legality of the structure belonging to plaintiff, the roof of which was in question in the present suit. Therefore, it is certainly the case of concealment of material fact by the plaintiff and accordingly plaintiff is not entitled for equitable relief of possession, in view of Section 41(i) of SRA. In this regard, the reference is also made to the judgement of Hon'ble Apex Court in the case Ramjas Foundation & Anr. Vs. Union of India & Ors. [ Civil Appeal No. 6662 of 2004], wherein, it was held as follows:
"14. The principle that a person who does not come to VIVEK the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such KUMAR person is not entitled to any relief is applicable not AGARWAL only to the petitions filed under Articles 32, 226 and Digitally signed by VIVEK KUMAR 136 of the Constitution but also to the cases instituted AGARWAL in others courts and judicial forums. The object Date: 2026.04.16 17:55:13 +0530 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 32/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. In Dalglish v. Jarvie 2 Mac. & G. 231, 238, Lord Langdale and Rolfe B. observed: "It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward. In Castelli v. Cook (1849) 7 Hare, 89, 94 Wigram V.C. stated the rule in the following words: A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go." [Emphasis Supplied] In view of aforesaid discussion Issue no. 2 is decided against the plaintiff.
ISSUE NO. 3:-
15. It has been submitted on behalf of defendant no. 3 that VIVEK KUMAR as stated in the WS of the defendant no. 3 as well as in the evidence AGARWAL affidavit of D3W1, the said iron gate was installed by all the Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), 17:55:22 +0530 PAGE 33/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN occupants of the building, however, the plaintiff failed to rebut the same in his replication to the WS and again no cross-examination of D3W1 was done in this regard and therefore, it is the case of non-
impleadment of necessary party. On the other hand, the counsel for the plaintiff failed to advance any argument on the said aspect.
15.1. It is observed that as per the averments of plaint, the iron gate / grill on the roof in question was allegedly installed by defendant no. 1. Now, the said version of plaintiff was clearly denied by the defendant no. 1 and 3 and in their WS, it has been specified that said iron gate / grill was installed by the joint decision of the all the occupiers of the upper floor of the said building. As reflected from the replication, no specific rebuttal was made in this regard and again no cross-examination was done on behalf of plaintiff of D3W1 on the said aspect. Therefore, it is the clear case of non-impleadment of the other occupiers of the upper-floor of the said building, which were necessary party in the present suit.
Accordingly, Issue no. 3 is also decided against the plaintiff.
ISSUE No. 416. It is observed that in his cross-examination dt. VIVEK 18.10.2023, plaintiff himself admitted that he had no authority to go KUMAR AGARWAL on the first floor of the property bearing no. D-169, Double-Story, West Patel Nagar. Again, in his cross-examination dt. 07.11.2025 Digitally signed by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:55:32 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 34/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN plaintiff admitted that the possession of proof in possession was grabbed by the defendant no. 1. Accordingly, as per the case of plaintiff himself, he was not in possession of the roof in question.
Therefore, Issue no. 4 is also decided against the plaintiff.
ISSUE NO. 517. It is observed that at the stage of final arguments, it was submitted by counsel of plaintiff as well as plaintiff that plaintiff does not want to press the prayer (a) of the suit and accordingly, said prayer was dropped vod. 24.03.2026. Consequently, issue no. 5 is disposed off being infructuous.
ISSUE NO. 618. The onus to prove this issue was on the plaintiff only, however same was inadvertently mentioned as OPD in the issues framed on 11.04.2017. The evidence was led on behalf of plaintiff only to discharge the burden of proving the facts to seek the relief of mandatory injunction. Accordingly, for sake of clarity, it is reiterated that said issue is taken up as being 'OPP' only.
18.1. It has been argued by ld. counsel of plaintiff that as per VIVEK the status report filed by the MCD, the iron gate / grill installed by KUMAR defendant no. 1 on the roof of the property of plaintiff is illegal as AGARWAL being installed without permission from the MCD. It is further Digitally signed by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:55:39 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 35/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN submitted that defendant no. 3 has taken the defence that the plaintiff was not entitled to said relief, as courtyard of the plaintiff was an unauthorised construction. That defendant no. 3 cannot be allowed to justify the admitted illegality. It is further submitted that a party cannot justify its own wrong by alleging a wrong on the part of another, as encapsulated in the maxim ' Tu Quoque'. Again reference is also made to the maxim ' Ex Injuria jus non oritur', which means no right can arise, wrongful act. It is further submitted that the defendants cannot be allowed to take law in their hands and to illegally interfere with the possession of plaintiff by installation of said iron grill/gate.
18.2. On the other hand, it is submitted on behalf of defendant no. 1 and 3 that admittedly plaintiff was not in possession of the roof in question and therefore, without seeking the relief of possession, he could not claim the relief of injunction. In this regard, reference is made to judgement of Anathula Sudhakar Vs. P. Buchi Reddy, 2008 4SCC 594. It is further submitted that as reflected from the earlier statement of plaintiff i.e. Ex. PW1/D3F, he had no requirement to go on the roof and therefore, the cause of action in the suit had already come to an end.
18.3. Heard. At the very first, it is observed that as discussed VIVEK above, it is the admitted position that plaintiff had no right/title in KUMAR the roof in question. Same has been further decided by way of theAGARWAL judgement passed in the civil suit filed by the plaintiff only. The Digitally signed by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:55:46 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 36/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN finding of the court in the said judgement certainly operate as Issue Estoppel in the present suit with respect to the claim of ownership on the said roof, in the present suit. Even otherwise, as discussed above, the plaintiff has also failed to prove any right/title in the said roof, as no such evidence has been led in the present suit. Again, as discussed above, it is not the case of plaintiff that he needs to have access to the roof for purpose of any essential amenity, as there are no such pleadings in the entire plaint. Going one step further, the plaintiff/PW1 in cross-examination dated 07.11.2025, has duly admitted that he was not using the property no. D-169, Ground Floor, for any purpose and it was kept locked. Same was his version in his cross-examination dated 26.02.2018, recorded in the other suit, as reflected from the document Ex. PW1/D3F. Again, even in the present case, the plaintiff has failed to lead any evidence, if he was enjoying the ground floor of the said property in any manner. Accordingly, in the given circumstances, when the plaintiff has failed to establish any right/title on the said roof or any violation of his right by installment of said iron grill/door, the only conclusion to be drawn is that the plaintiff is not entitled to relief of mandatory injunction.
18.4. Regarding the contention raised on behalf of plaintiff VIVEK by referring to the maxim 'Tu Quoque' and the maxim 'Ex Injuria KUMAR jus non oritur', it is observed that to seek the relief from the court AGARWAL and to prove his case, the plaintiff has to stand upon his own legs. It Digitally signed by VIVEK KUMAR AGARWAL Date: 2026.04.16 (Vivek Kumar Agarwal) 17:55:54 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 37/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN is not only the illegal act committed by the defendant, which gives the right to the plaintiff to seek injunction and on the other hand, plaintiff has to satisfy the court that what right of plaintiff has been suffered by way of said illegality. In this regard reliance is placed upon the judgment of Hon'ble High Court of Delhi titled as Rajender Motwani & Ors. Vs. MCD 2017 SCC Online Del 11050, wherein it was observed as follows:-
"...that an illegal construction in itself does not give any legal right to a neighbor. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor..."
Now, in the given facts, as plaintiff has failed to show that what right of the plaintiff was affected by way of illegal installment of iron grill/gate on the roof in question, the plaintiff is certainly not entitled to seek any injunction for removal of said grill/gate. Regarding the status report filed by the MCD, it is observed that MCD is certainly at liberty to take due action qua the VIVEK KUMAR said grill/gate, if being illegally installed, however the plaintiff AGARWAL cannot seek any direction to the MCD in this regard from the court. Digitally signed by VIVEK KUMAR AGARWAL (Vivek Kumar Agarwal) Date: 2026.04.16 17:56:01 +0530 (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 38/39 16.04.2026 CS SCJ 427/2016 9148/16 SANDEEP SALARIA Vs. GOPAL KRISHAN Therefore, Issue no. 6 is also decided against the plaintiff.
ISSUE NO. 7 RELIEF
19. In view of above findings of issue no. 1 to 6, the suit of the plaintiff is hereby dismissed. No order as to costs. Suit is being dismissed, however it is made clear that MCD is at liberty to take due action qua the said iron grill/door in question as per relevant rules. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by VIVEK VIVEK KUMAR
KUMAR AGARWAL
Date: 2026.04.16
AGARWAL 17:56:11 +0530
(VIVEK KUMAR AGARWAL)
JSCC/ASCJ/GJ-02/West,THC,
Delhi/16.04.2026
(Announced in open court
On 16.04.2026).
Note: This judgment contains 39 pages and all the pages have been Digitally signed checked and signed by me. by VIVEK VIVEK KUMAR KUMAR AGARWAL AGARWAL Date:
2026.04.16 17:56:21 +0530 (VIVEK KUMAR AGARWAL) JSCC/ASCJ/GJ-02/West,THC, Delhi/16.04.2026 (Vivek Kumar Agarwal) (JSCC-cum-ASCJ-cum-Guardian Judge-02, West,THC), PAGE 39/39 16.04.2026