Delhi District Court
Tis Hazari Courts Delhi vs Sh. Ram Kishore on 12 August, 2014
IN THE COURT OF SH. SIDDHARTHA MALIK, CIVIL JUDGE (WEST) III
TIS HAZARI COURTS DELHI
SUIT NO. 1477/06
DATE OF INSTITUTION : 23.12.2006
DATE ON WHICH RESERVED : 05.08.2014
DATE OF DISPOSAL : 12.08.2014
1 SMT. KUM KUM SOMANI
W/O SH. ANIL KUMAR SOMANI
2 SH. ANSHUL SOMANI
S/O SH. ANIL KUMAR SOMANI
BOTH RESIDENT OF 4790
PHATAK NAMAK, HAUZ QAZI
DELHI-110006 ...... PLAINTIFFS
VS
1 SH. RAM KISHORE
2 SH. HARI KISHAN
BOTH S/O LATE SH. BATTU MAL
BOTH R/O 566, GALI LODHIYAN
KUCHA PATI RAM, BAZAR SITA RAM
DELHI-110006
..... DEFENDANTS
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SUIT FOR MANDATORY AND PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed by the plaintiffs for the relief of mandatory and permanent injunction against the defendants to direct the defendants to close the windows/openings in the wall in property number 4797-98, Phatak Namak, Hauz Qazi, Delhi-110006 (hereinafter referred to as 'suit property') and to restrain the defendants from opening the said windows which are shown as W-1 to W-6 in the site plan.
2. Briefly stated the case of the plaintiffs is that the plaintiffs are the owners and in possession of property bearing No. 4789 (part) to 4796 situated at phatak Namak, Hauz Qazi, Delhi-110006. It is submitted that defendants are the owners and in possession of the suit property which is the adjoining property to the property of the plaintiffs.
3. Further it is stated that in the month of March, 2004, defendants opened a number of windows/opening (W-1 to W-6) in the side wall of the suit property which is adjacent to the property of the plaintiffs and have installed an Air Conditioner in the part portion of the one window (W-1). It is submitted that the said AC and the projections have been installed in the portion of the plaintiffs and the doors of the entire windows are opening in the property of the plaintiffs.
4. It is averred that during the period of April, 2006 to July, 2006, plaintiffs carried out certain repairs and renovations in their property for its beneficial use and enjoyment. It is submitted that in the month of June, 2006 plaintiffs requested the defendants to close the opening/windows towards the property of the plaintiffs and to remove the A.C and projections installed over and above the portion of the plaintiffs property -:2:- as the A.C was creating nuisance of heat and water in the portion of the plaintiffs. It is further submitted that the privacy of the plaintiffs is also affected due to the windows/openings causing disturbance to the plaintiffs and their family members.
5. It is further submitted that defendants have now started throwing garbage and other waster materials from the said opening/windows in the portion of the plaintiffs. Hence, the present suit.
6. On the other hand defendants have filed a detailed written statement stating that the plaintiff has filed the present suit just to harass the defendants and has not approached the Court with clean hands. Defendants allege that the plaintiffs wish to raise illegal construction in their property and want the windows of the defendants closed. Defendants further submit that the windows in dispute are existing for a long time and the defendants are fully entitled to use them for basic necessities of light and air. It is denied that the windows were installed only the year 2004.
7. As per the pleadings of the parties following issues were framed on 31.05.2008:
1 Whether the plaintiff is entitled for the permanent injunction as prayed for?OPP 2 Whether the plaintiff is entitled for the mandatory injunction as prayed?OPP 3 Relief.
8. In PE, the plaintiff no.2 examined himself as PW-1 while in DE, the defendant no.1 was examined as DW-1.
9. Final Arguments were advanced by Ld counsels for both the parties. I -:3:- have heard the submissions and perused the record carefully. My issue wise findings are as under:Issue No. 1 & 2
1 Whether the plaintiff is entitled to , as prayed?OPP & 2 Whether the plaintiff is entitled to , as prayed?OPP
10. It is the case of the plaintiffs that the defendants have constructed and opened six windows in their property towards the portion of the property in the year 2004 and the plaintiffs are subjected to continuous nuisance due to the said windows. Plaintiffs have depicted these windows as W-1 to W-6 in Ex.PW-1/B i.e. the site plan of the property.
11. The defendants have categorically denied the assertion of the plaintiffs that the windows in dispute were constructed in 2004 and submit that the said windows are in existence for last many years without any interference from any person.
12. As the averment of the plaintiffs regarding construction of windows has been denied by the defendants, the plaintiffs had the onus of proving that the said windows have been constructed in the year 2004 and are used for causing nuisance in the property of the plaintiffs.
13. To discharge this onus the plaintiffs have relied only upon the testimony of plaintiff no.2 as PW-1. In his testimony PW-1 has asserted that the windows in dispute were constructed for the first time in the year 2004 despite objections from the plaintiffs. The plaintiff's testimony is not based upon any other documentary evidence except the affidavit in evidence. During his cross examination PW-1 has admitted that he is not -:4:- in possession of any photograph of the suit property for the years 2004 to 2006 which could show the construction of the windows in dispute.
14. PW-1 has further admitted that he did not send any notice or other written communication to the defendants between 2004 to 2006 regarding the nuisance caused by the presence of the windows. PW-1 has further admitted that no complaint was lodged to the concerned authorities in relation to the windows in dispute.
15. It is very surprising to note that the plaintiffs had no photographs of the alleged construction of windows carried out by the defendants in the year 2004 despite objections of the plaintiff. It is further surprising that the plaintiffs have not examined any witness from the neighbourhood who could depose regarding the fact of windows carved out in the year 2004.
16. Admittedly, the lower floors of the property of the plaintiffs as well as the defendants have multiple shops being run by different people for a long time. The plaintiffs could have examined any of the said shop owners to depose regarding the alleged fact of carving out of windows in 2004. It is highly improbable to believe that a person who is continuously facing nuisance due to windows opened in 2004 would not tender in evidence any documentary proof such as photograph or would try for deposition of neighbours for the alleged construction of the windows.
17. The act of carving out to six windows could not have been done in one day and would have incurred substantial labour and raw material. The debris of the portion of the wall torn apart for carving the windows must also have been scattered. Noting prevented the plaintiffs from taking photographs of the aforesaid acts especially when the acts were causing direct nuisance to the plaintiffs.-:5:-
18. The plaintiffs have alleged that the windows were carved out in March, 2004, whereas the present suit has been instituted in December, 2006, i.e. more than 2 ½ years after the alleged incident. It is hard to believe that the plaintiff kept quite for such a long time in face of constant nuisance and did not lodge any formal protest by way of legal notice or complaint to the concerned authorities.
19. Thus, in sum total the glaring lacuna in the deposition of the plaintiffs are fatal to the case of the plaintiffs. The plaintiffs have failed to prove their averments by any conclusive evidence. The testimony of the plaintiffs has been countered by the defendants by giving evidence on oath wherein the averments of the plaintiffs have been refuted.
20. Thus, except for allegations and counter allegations made on affidavit, there is nothing on record to support the contentions of the plaintiffs for grant of an injunction. The plaintiffs have failed to establish either the alleged act of carving out of windows in the year 2004 or the allegations of creating intentional nuisance on the part of defendants.
21. Be that as it may, it is admitted fact that the windows in dispute have been carved out from the wall of the defendants property and no damage has been caused to the property of the plaintiffs for carving out the said windows.
22. Every human being has the right to light and air in his property. The said right is quite fundamental in nature as it is necessary for the dignified living of any individual. Thus, no person can be asked to close windows in his own property except in cases of very exceptional nature such as law & order and security issues.-:6:-
23. Needless to say the said use of window for light and air is subject to basic duties of a citizen of maintaining peace, cleanliness and dignity of other fellow citizens. Thus, the defendants cannot be directed to close windows in their property except when the plaintiffs are able to conclusively establish that the said closing of windows is the only remedy available to check the alleged nuisance.
24. It is settled law that the case of the plaintiff has to stand on its own feet and cannot seek support in the discrepancies in defendant's evidence.
Thus, it was imperative for the plaintiffs to establish their own case by substantial evidence. A civil suit is decided on the preponderance of probabilities and the balance of probabilities does not support the case of the plaintiffs in the present suit.
25. Accordingly, the issue nos.1 & 2 are decided against the plaintiffs.
Issue No. 3Relief
26. In view of the aforesaid discussion, the suit of the plaintiffs is dismissed with costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court today i.e. 12.08.2014 (Siddhartha Malik) CJ(West)III,THC/Delhi 12.08.2014 -:7:-