Delhi District Court
Naresh Malik vs Virinder Nehra & Ors. on 3 August, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
CS No: 570/11
Naresh Malik Versus Virinder Nehra & Ors.
03.08.2011
ORDER
1. This order shall decide the application under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure filed on behalf of the plaintiff. In the said application, the plaintiff has made the following prayers:
"a) Restrain the defendant nos. 1-3 from in any manner carrying out any further renovation, changes, development of any nature of work in units no. F1 to F4 and the corridor in front of unit nos. F1 to F4 in building no. 5, Block MLU, Sector 4, Dwarka, Delhi and from in any manner carrying out any further illegal and unauthorized construction or from in any manner damaging the flooring walls, ceiling, columns and the tie beams etc. forming part of and running through unit nos. F1 to F4 of the first floor of building no. 5, Block MLU, Sector 4, Dwarka, Delhi as well as the common corridors in front of the said building as are shown in the site plan annexed and the defendants be also restrained from in any manner using or creating any third party rights in the said shops till the time the shops are restored to their original condition as otherwise the entire building which has become dangerous may collapse.
b) Pass any other order as deem fit in the circumstances of the case."
2. The case of the plaintiff is that he is proprietor of a concern known as Malik Plaza. On 13.06.2003, the Delhi Development Authority allotted a lease hold plot bearing no. 5, Block MLU, Sector 4, Dwarka, Delhi Naresh Malik Vs. Virinder Nehra & Ors. 1 measuring 541.26 sq. metres to the plaintiff by registered perpetual lease deed dated 13.06.2003. The plaintiff constructed a commercial building on the said plot. The building was raised up to the third floor. The building was constructed after getting the building plan sanctioned from Delhi Development Authority. After carrying out construction, a completion certificate was also obtained from Delhi Development Authority. It is further stated in the plaint that under the lease, the plaintiff was authorized to sell and allot the shops and offices constructed by the plaintiff on the said plot. The plaintiff allotted various shops and offices to different persons. It is further stated in the plaint that as per the design of construction, there was a common corridor in front of all the shops on the ground, first and second floors. The plaintiff allotted two shops bearing nos. F1 and F2 on the first floor of the building measuring about 1260.39 sq. feet super area to defendant no. 1 and one Mr. Johnson Benchamen under the allotment letter dated 20.03.2003 and the possession letter dated 05.08.2006 under which the possession was handed over to the original allottee Sh. Dhan Singh who thereafter transferred his rights in favour of the defendant no. 1 and Mr. Johnson Benchamen. The shops are presently in the use and occupation of defendant no. 1. On 01.07.2004, the plaintiff allotted shop no. F3 measuring 257.51 sq. feet super area to the defendant no. 3 and handed over possession thereof to the defendant no. 3. The plaintiff thereafter allotted shop no. F4 measuring 235.64 square feet super area to Mr. Hawa Singh and Ms. Neelam Chandan who in turn transferred their rights in the said Naresh Malik Vs. Virinder Nehra & Ors. 2 shop in favour of defendant no. 3. The defendant no. 3 is in occupation of the shop no. F4. The said shops and the common area have been depicted by the plaintiff in the site plan filed with the plaint. It is stated by the plaintiff that the defendant nos. 1 to 3 are in occupation of the shops bearing nos. F1 to F4. It is further stated that the said shops had been allotted by the plaintiff to the defendants as separate units. It is further stated that defendant no. 2 has been trying to encroach upon the common area of the building. It is further stated that defendant no. 1 is in arrears of ground rent. It is further pleaded that under the terms of allotment, defendant nos. 1 to 3 were not authorized to carry out any illegal or unauthorized construction in the building or to damage the permanent structures of the building. This covenant is stated to have been violated by defendant nos. 1 to 3. It is averred in the plaint that defendant nos. 1 to 3 have been carrying out unauthorized construction and have illegally removed the front shutters of the shop nos. F1 to F4 and the load bearing walls and have damaged the building so as to create a single hall in place of the four shops. It is pleaded that false ceiling has also been erected and the columns as well as tie beams have been damaged. Such construction is sought to be restrained by the plaintiff through the present suit.
3. Ld. Counsel for plaintiff has addressed arguments, in support of his case. He has submitted that the construction which the defendants are undertaking is contrary to the terms of their agreement. Ld. Counsel for Naresh Malik Vs. Virinder Nehra & Ors. 3 plaintiff has also argued that the said construction is contrary to the sanctioned plan and the completion certificate issued by the Delhi Development Authority in respect of the building. Upon asking, Ld. Counsel for plaintiff has stated that permission of Delhi Development Authority was not obtained for transfer of possession of shops of the building. He has submitted that the Delhi Development Authority is not entertaining any request for transfer of possession and that under the policy of Delhi Development Authority such transfers are being recognized although prior permission of Delhi Development Authority has not been obtained. Ld. Counsel for plaintiff further submits that since the matter relates to a dispute between the plaintiff and the defendants and revolves around their inter se agreement, the legality of transfer of possession cannot be called into question. Ld. Counsel for plaintiff has placed reliance on the cases reported as Sudhir Tyagi vs. Subhash Tyagi 2011(179) DLT 780 and Punj Sons (P) Ltd. vs. Lapinns Rockwool Pvt. Ltd., 1994(3) RRR 713.
4. Ld. Counsel for defendant no. 1 has opposed the prayers made in the application of the plaintiff. He submits that the suit is vexatious and has been filed merely to extort money from the defendants. He states that the plaintiff is a politician and has nexus with police officials as well as goons. It is submitted that the plaintiff is trying to pressurize the defendants merely to extract money from them. It is pointed out that an Assistant Commissioner of Police had been visiting the suit property and had been Naresh Malik Vs. Virinder Nehra & Ors. 4 trying to stall renovation work at the behest of the plaintiff although he has no power to do so.
5. Ld. Counsel for defendants has submitted that the defendants have purchased the shops in question. He states that the defendants are entitled to carry out renovation in the premises. He states that the defendants are not carrying out any major structural changes and have not acted in violation of any agreement. It is further submitted that the defendants are merely carrying out renovation of the premises and have fixed glasses in front of the corridor, are replacing the tiles on the floor of the shops and are erecting a false ceiling. It is submitted that the said changes do not amount to any structural change and are not in violation of the sanctioned plan or the occupation certificate. It is also submitted that the defendant nos. 1 to 3 are well within their rights to remove the partition of the shops. It is further submitted that no credence can be attached to the contention of the plaintiff that the said renovation is contrary to the sanctioned plan or completion certificate since the authority which has issued the sanctioned plan or the completion certificate has itself not been impleaded as a party in the present case. It is stated that since the property is lease hold, ownership continues to vest in the Delhi Development Authority that has not been made a party and therefore the present suit is not maintainable.
Naresh Malik Vs. Virinder Nehra & Ors. 5
6. I have heard arguments advanced by Ld. Counsel for parties and have perused the record.
7. Briefly stated, the case of the plaintiff is that he has permitted the defendants to use part of his premises under an agreement and the defendants are using the premises in a manner contrary to the said agreement. In order to assess whether the plaintiff is entitled to the relief claimed by him, it must be examined as to whether the plaintiff had indeed entered into any agreement with the defendants in respect of the shops, whether the agreements have been violated by the defendants and whether the violation of the agreements, if any, can be restrained by injunction. If upon assessment of the above matters, it is found that the plaintiff has a prima facie case, it shall then be examined as to whether there is balance of convenience in favour of the plaintiff and whether the plaintiff would suffer irreparable injury in case the relief sought is declined. Whether the plaintiff had entered into any agreement with the defendants in respect of the shops?
8. According to the case of the plaintiff, as pleaded in the plaint, the shop nos. F1 to F4 stand transferred in favour of the defendants. Shop nos. F1 and F2 are stated to have been transferred originally in favour of one Mr. Dhan Singh and subsequently assigned to defendant nos. 1 and 2. Naresh Malik Vs. Virinder Nehra & Ors. 6 The transfer from the plaintiff to Mr. Dhan Singh is stated to have been carried out by agreement dated 20.03.2003. Copy of the said agreement is on the record. The covenants of the agreement are perused. The shop nos. which are stated to have been transferred to Mr. Dhan Singh do not figure in the covenants of the agreement dated 20.03.2003. The relevant clause of the agreement on its first page has been left blank. It is the clauses contained in the agreement and not the title of the agreement that are material to determine its scope and applicability. Hence, the said agreement dated 20.03.2003 does not indicate that it pertains to shop nos. F1 and F2. The terms of the said agreement can therefore not be considered as binding on the defendants in respect of the shops.
9. Furthermore, even if it is assumed that the agreement pertains to shop nos. F1 and F2, it does not become enforceable against the defendants at the instance of the plaintiff. The assignment of the rights under the agreement has been done by Mr. Dhan Singh and not by the plaintiff. The plaintiff is not a party to the assignment of rights and therefore cannot enforce the obligations arising therefrom. Merely because the plaintiff has appended his signatures on the document by which rights have been assigned does not make him a party to the assignment. The defendant no.1 has, through the assignment/endorsement, clearly stated that he accepts the rights and liabilities assigned by Sh. Dhan Singh. He has not acknowledged any transfer of rights from the plaintiff. There is no Naresh Malik Vs. Virinder Nehra & Ors. 7 consideration within the meaning of Section 2 (d) of the Contract Act, 1872 flowing from either the defendant to the plaintiff or vice versa so as to assume that an enforceable agreement has been executed between them. Under Section 10 of the Contract Act, an agreement is enforceable only if it is for consideration. The agreement also does not fall under any of the exceptions provided under Section 25 of the Contract Act, 1872 so as to be sustainable despite absence of consideration. Hence, by the agreement dated 20.03.2003 relied upon by the plaintiff, he has not been able to establish that there is an enforceable contract between the plaintiff and the defendants thereby placing restrictions on the use of the shops in question. There is also no other document to indicate this.
10. In respect of shop nos. F3 and F4 too, no document has been placed on record to establish the terms and conditions of the transfer. It is stated in the plaint that the shop no. F3 was allotted to the defendant no.3 by the plaintiff. However, no agreement entered into between the plaintiff and the defendant no.3 in this regard has been placed on record. Similarly, shop no. F4 is stated to have been originally allotted to Mr. Hawa Singh and Ms. Neelam Chandan, who subsequently transferred their rights in favour of defendant no.3. The agreement whereby the shop was allotted to Mr. Hawa Singh and Ms. Neelam Chandan and the agreement whereby the said transferees assigned their rights in favour of defendant no.3 have not been filed by the plaintiff. Although heavy reliance is being placed on the said Naresh Malik Vs. Virinder Nehra & Ors. 8 agreements by the plaintiff and the plaintiff has repeatedly urged that the defendants are acting in contravention of the said agreements, strangely, the plaintiff has chosen not to file copy of the same. Unless a condition restricting use of the shops is shown to exist, it cannot be stated to have been violated. The documents being material and indispensable, ought to have been filed by the plaintiff. The plaintiff has however withheld these documents. No explanation whatsoever has been furnished to justify the omission to file the documents. Adverse inference under Section 114 of the Evidence Act is therefore attracted and it may be assumed that either the agreements do not exist or else their terms do not support the averments of the plaintiff and that is why they have not been filed.
11. Even if the plea of the plaintiff contained in paragraph no.8 is assumed to be correct, it would only lead to the inference that the shop no.4 was transferred by the plaintiff in favour of Mr. Hawa Singh and Ms. Neelam Chandan who in turn transferred their rights in favour of defendant no.3. From this, it cannot be concluded that there is privity of contract between the plaintiff and the defendant no.3 in respect of shop no. F4. Unless there is privity of contract, the plaintiff cannot compel performance of the terms of contract.
12. The plaintiff has, in paragraph no. 7 of the plaint, urged that shop nos. 1 and 2 have been transferred in favour of defendant no.1 and Naresh Malik Vs. Virinder Nehra & Ors. 9 one Mr. Johnson Benchamen. In paragraph no. 8 of the plaint, the plaintiff has stated that possession of shop nos. F3 and F4 have been transferred in favour of defendant no.3. However the plaintiff has miserably failed to demonstrate the capacity in which defendant no.2 has entered into possession of any of the shops. The plaintiff has not demonstrated as to whether any agreement has been entered into between the plaintiff and the defendant no.2. Unless such an agreement is shown to exist, its breach cannot be proved.
13. The agreements that the plaintiff states to have been entered into with the defendants purportedly create rights over immovable property under the guise of "allotment" and therefore are compulsorily registrable under Section 17 of the Registration Act. Unless the duly registered documents are produced, the terms of use of the property cannot be assumed to exist.
14. In the result, the plaintiff has failed to demonstrate that he has entered into agreements with the defendants restricting or regulating the use of shops in question.
Naresh Malik Vs. Virinder Nehra & Ors. 10 Whether the agreements have been violated by the defendants?
15. The agreements providing for the manner of use of the shops have not been shown to exist. Therefore, the question of violation of the agreements does not arise.
16. Yet, even if it is assumed that such agreements mandating that permanent structure of the building shall not be damaged do exist, the proposed renovation does not violate the said agreements since it has not been convincingly demonstrated that it would cause permanent damage to the building.
17. Further, the plaintiff has pleaded that the proposed renovation is in violation of the sanctioned plan and the completion certificate. This plea cannot be accepted since the plaintiff has not filed either the sanctioned plan or the completion certificate. The plaintiff has merely filed copy of the occupation certificate. Unless the sanctioned plan and the completion certificate are filed and unless the extent of proposed renovation is fully explained, the court cannot arrive at the conclusion that the renovation is in contravention thereof.
18. Hence the plaintiff has failed to demonstrate that the Naresh Malik Vs. Virinder Nehra & Ors. 11 defendants are acting in breach of their contractual obligations or that they are violating the sanctioned plan or completion certificate. Whether the violation of the agreements, if any, can be restrained by injunction?
19. According to the plaintiff, the defendants are under a contractual duty not to make structural changes in the building and that they are acting in breach of this duty. In paragraph no. 23 of the plaint, it is stated that the defendants have "breached the terms of the allotment agreement and having committed default under the same...". Assuming this to be true, the plaintiff ought to seek specific performance of the said agreement instead of the present suit for injunction. Specific performance would then be usual and ordinary remedy available to the plaintiff and having failed to avail this alternate and efficacious remedy, the suit stands barred by Section 41(h) of the Specific Relief Act, 1963.
In this behalf, reference may be made to the case of Rohit Kumar v. A.S. Chugh 2009(3) A.D.(Delhi) 108, wherein Hon'ble High Court of Delhi observed as under :
"This is for the reason that under section 41 (h) of the Specific Relief Act an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode. In my opinion, after the cause of action for the relief of specific performance has accrued to a purchaser, the efficacious relief of specific performance is available to the purchaser and an injunction at the instance of the purchaser restraining the seller from Naresh Malik Vs. Virinder Nehra & Ors. 12 dealing with the property cannot be granted. This has also been held in Satish Bahadur v Hans Raj AIR 1980 Punjab 351 with which I respectfully concur".
Similar observations were made by Hon'ble Allahabad High Court in the case of Subhash Chand Sharma v. Nanda 1997(2) Civ.C.C. 95, by Hon'ble Andhra Pradesh High Court in the case of K. Venkata Rao v. Sunkara Venkata Rao 1999(1) R.C.R.(Civil) 399 and by Hon'ble Punjab and Haryana High Court in the case of S.K. Dhadwal v. Prem Singh 1991(1) R.R.R. 253.
20. The prayer of the plaintiff is to restrain the defendants from carrying out "any further renovation, changes, development of any nature". If the said prayer is granted, it would prohibit any kind of activity including that which is necessary for upkeep and maintenance of the premises. Such a blanket ban on renovation and other activity would debar the plaintiff from proper maintenance of the premises and from making effective use thereof. Such wide ranging directions cannot be passed. This prayer of the plaintiff is vague and not tenable.
21. The plaintiff has also prayed for restraining the defendant from carrying out "illegal and unauthorized construction" and from damaging the building. What is illegal and unauthorized has not been clearly defined. To ensure that the construction/renovation remains within the confines of the Naresh Malik Vs. Virinder Nehra & Ors. 13 law requires a continuous duty on the part of the court. This cannot be monitored by the court. The specific performance of such terms is incapable of supervision or enforcement by the court. Hence, such conditions cannot be specifically enforced under Section 14(1) of the Specific Relief Act, 1963 and no injunction can be granted to restrain their breach in terms of Section 41(e) of the Act.
22. The plaintiff has further prayed for restraining the defendants from creating third party rights in the shops till their condition is restored. By the said prayer, the plaintiff is essentially seeking to compel restoration of the condition of the shops. Such relief cannot be granted under Order 39 Rules 1 and 2 of the Code of Civil Procedure. It is settled law that injunction can be granted only to preserve status quo and not to create a state of affairs other than that existing on the date of institution of the suit. Restoring the condition of the shops would create such a state of affairs. In this behalf, reference may be made to the case of Dorab Cawasji Warden v. Coomi Sorab Warden and Ors.1990(2) S.C.C. 117, wherein the Hon'ble Supreme Court held that interim injunction must be granted to restore status quo and is not granted to establish a new state of things. It is yet to be determined during trial as to whether the renovation activity of the defendants is lawful or not. Pending such determination, the defendant cannot be compelled to restore the condition of the shops. Naresh Malik Vs. Virinder Nehra & Ors. 14
23. Moreover, if, at this stage, the defendants are directed to restore the condition of the shops, it would amount to decreeing the suit itself and nothing would remain to be adjudicated. It is settled law that at the stage of interim relief, final relief itself should not be granted.
In the case of Ashok Kumar Bajpai v. Dr.(Smt.) Ranjana Bajpai AIR 2004 All 107, the Hon'ble Allahabad High Court, relying upon a large number of decisions of the Hon'ble Supreme Court, concluded thus:
"The Hon'ble Apex Court consistently has been emphasizing that the Court while dealing with the case at an interim stage cannot grant a relief which amounts to final relief".
In the case of Metro Marins and Another v. Bonus Watch Co. (P) Ltd. & Ors, AIR 2005 SC 1444, the Hon'ble Supreme Court deprecated the practice of issuing interim injunctions which have the effect of decreeing the suit before trial.
24. The abovementioned prayer of the plaintiff for restraining creation of third party interest in the shops cannot be acceded to. Even if it is assumed that the defendants have carried out renovation in the premises contrary to the terms of agreement, that is not a good ground to restrain the sale or transfer of the shops. This is not a suit relating to title. The right of the defendants to own or dispose of the said shops has not been assailed by the plaintiff through this suit. In the event of sale of the shops, the relief that the plaintiff is seeking would be maintainable against the transferees. Naresh Malik Vs. Virinder Nehra & Ors. 15
25. It is not in dispute between the parties that the plot was allotted by Delhi Development Authority to the plaintiff by perpetual lease dated 13.06.2003. By the said lease deed, the plaintiff was permitted to use the plot for commercial purpose. Clause 6 of part II of the lease deed lays down certain terms of lease. It provides that the lessee (the plaintiff herein) "shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the commercial building accepted with the previous concern in writing to the lessee which he shall be entitled to, is refused in his absolute discretion". The said clause also provides for the rights of pre emption in favour of the lessor in the event of sale, transfer, assigning or parting with possession of the property. It is further provided in the clause that the lessee may transfer or sell floor space constructed on the plot subject to permission of the lessor in writing on payment of Rs.100/ for each flat floor space for the first sale/transfer. For subsequent sale/transfer the lessor may on payment of proportionate 50% of the unearned increase grant permission to the sublessee/transferor for such subsequent sale/transfer of the floor space to be transferred. The permission for such proceedings shall be subject to the condition of getting the Deed of Apartment and the sublease executed by the lessee in favour of the said floor space buyers/transferees.
26. According to the plaintiff, the possession of the shop nos. F1 to F4 is with the defendant nos. 1 to 3 and that the said defendants are acting Naresh Malik Vs. Virinder Nehra & Ors. 16 contrary to the terms and conditions agreed upon at the time of transfer of possession. The transfer of possession of shop nos. F1 to F4 in favour of the defendants appears to be in conflict with the abovequoted terms of the original perpetual lease dated 13.06.2003. Permission under clause 6 of the terms of lease deed has not been obtained by the plaintiff. The requisite fee has not been paid to Delhi Development Authority. Further, the said transfer in favour of the defendants, not being the first transferee, is required to be attested by direct agreement between the plaintiff and the transferee. The plaintiff has not placed on record any such agreement between the plaintiff and the subsequent transferees. All the said transfers therefore appear to be in violation of the terms of perpetual lease. Since the plaintiff has admittedly acted in contravention of the terms of perpetual lease, it cannot be stated that the plaintiff has come to Court with clean hands and has acted in an honourable or honest manner. It is settled law that one who seeks equity must do equity. The plaintiff cannot be permitted to seek enforcement of a contract which has been executed without authority. Owing to such conduct of the plaintiff, he is not entitled to the discretionary relief of injunction. Regard must be had to the decision of Leela v. Ambujakshy, AIR 1989 Kerala 308 wherein the Hon'ble Kerala High Court observed:
"Further injunction is an extraordinary discretionary relief. A person approaching the Court for such a relief must come with clean hands and he must do equity. He who seeks equity must do equity."Naresh Malik Vs. Virinder Nehra & Ors. 17
The aforesaid decision is of relevance in deciding the present application. In that case, referring to conditions that restricted the use of property by the transferee, the Hon'ble High Court held:
"The vendee is entitled to ignore a condition which cuts down his enjoyment of the absolute right of property, and any direction in the saledeed which is contrary to the enjoyment of such absolute estate is void and unenforceable and could be treated as non est under the first part of Section 11".
27. Ld. Counsel for plaintiff has argued that the violation of conditions of perpetual lease by the plaintiff in handing over possession to the defendants does not disentitle him to grant of injunction. To support this contention, Ld. Counsel for plaintiff has drawn an analogy by stating that if a building has been illegally constructed by the owner and a third party trespasses into the building, the owner of the building would still be entitled to remove the trespasser.
I am unable to agree with the contentions of Ld. Counsel for plaintiff. In the event of an illegal construction of building and trespass into the same, the right that the owner is trying to enforce emanates from the law of torts. On the other hand, in the instant case, the plaintiff is trying to enforce the same agreement which is illegal and has been executed in contravention of the terms of original lease. The plaintiff is trying to seek enforcement of contractual rights and the right of the plaintiff does not stem from public law. Hence, keeping in view the conduct of the plaintiff, he is not entitled to the grant of injunction in light of the express provisions of Naresh Malik Vs. Virinder Nehra & Ors. 18 Section 41(i) of the Specific Relief Act, 1963.
Ld. Counsel for plaintiff has cited some decisions to advance his argument that he is entitled to grant of injunction against the defendants notwithstanding his conduct. I am afraid the decisions do not support his contention.
In the case of Punj Sons (P) Ltd. vs. Lapinns Rockwool Pvt. Ltd., 1994(3) RRR 713, it was held that the failure of the plaintiff to comply with previous order of the court does not justify disruption of water supply to the plaintiff. In that case, the issue before the court was not whether the plaintiff is entitled to discretionary relief of the court on account of his conduct. The court was examining whether the defendant was within his right to deprive the plaintiff of water supply on account of the failure of the plaintiff to comply with the previous order of the court which did not pertain to water supply. The facts of the case are entirely different and do not apply to the present case.
In the case of Sudhir Tyagi vs. Subhash Tyagi 2011(179) DLT 780, the Hon'ble High Court of Delhi held that the possession of the plaintiff who had entered into the suit property on the strength of a general power of attorney, agreement to sell, will, receipt and affidavit is lawful and is entitled to the protection of law. The issues that arise in the present case were neither urged before the court nor discussed by the Hon'ble High Court of Delhi. Hence, the decision is of no aid to the plaintiff. Naresh Malik Vs. Virinder Nehra & Ors. 19
28. The plaintiff has urged that the changes that the defendants are carrying out are in contravention of the sanctioned plan, completion certificate and building bye laws. It appears that the plaintiff has not approached the Delhi Development Authority to canvass this claim. Under the Delhi Development Act, in case there is any violation of the plan or bye laws, it is the Delhi Development Authority which is empowered to initiate action. It is strange that despite being aware of the functions of the Delhi Development Authority and its statutory powers, the plaintiff is choosing not to ventilate his grievance before the Delhi Development Authority. Furthermore, the Delhi Development Authority has not been made a party before this Court although it is the said authority which is empowered to decide as to whether the sanctioned plan and completion certificate have been violated and it is the said Authority which is statutorily empowered to initiate action against the violators. The Authority has not been made a party although it is a necessary party to the case.
29. The plaintiff has stated in paragraph no. 5 of the plaint that under the terms of lease, he is entitled to sell the shops and offices. This plea taken by the plaintiff is in conflict with the record. The terms of lease expressly prohibit such transfers without the permission of the lessor i.e. Delhi Development Authority. The above averment made in the plaint is incorrect and misleading.
Naresh Malik Vs. Virinder Nehra & Ors. 20
30. Having answered the aforementioned questions, it is manifest that the plaintiff does not have any prima facie case in his favour. Balance of convenience is also not in favour of the plaintiff. Even if subsequently it is found that the renovation carried out by the plaintiff is contrary to the terms of agreement, the plaintiff can either compel the defendants to restore the premises in the original condition or may do this himself and recover costs thereof from the defendants. The plaintiff has failed to demonstrate that the damage suffered or likely to be suffered by the building due to renovation work is of permanent or lasting character. The plaintiff would not suffer irreparable injury in case the relief sought is declined. As of now, the shops are in the possession of the defendants. They are at liberty to use them in the manner in which they like. Since the shops are in the possession of the defendants, the use of the shops cannot be stated to cause detriment or harm to the plaintiff. The injury to the rights of the plaintiff, if any, can be adequately compensated in terms of money. For these reasons, there is no merit in the application under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure filed on behalf of the plaintiff. The application is hereby dismissed.
(Ashish Aggarwal) Civil JudgeI/Dwarka Courts Delhi/03.08.2011 Naresh Malik Vs. Virinder Nehra & Ors. 21