Delhi District Court
Smt. Kanta Devi vs Sh Om Prakash Saini on 21 May, 2013
Kanta Devi v Om Prakash Saini & Ors. S-52/13
IN THE COURT OF SH. MANISH YADUVANSHI:
SCJCUMRC, SOUTH, SAKET COURTS, DELHI.
S52/13
IN THE MATTER OF:
Smt. Kanta Devi,
W/o late Sh Mahender Kumar,
18, Masjid Moth Village,
New Delhi. ...... Plaintiff.
Versus
1.Sh Om Prakash Saini S/o Not known,
2. Sh Shiv Kr Saini, S/o Sh Om Prakash Saini,
3. Sh Ram Kumar Saini, S/o Sh Om Prakash Saini, All R/o 30, Masjid Moth village, New Delhi110049
4. South Delhi Municipal Corporation, Green Park, New Delhi. .....Defendants.
Unique Case ID No. : 02406C0020732013
Date of Institution : 24.01.2013.
Date of Reserving Judgment : Not Reserved.
Date of Decision : 21.05.2013.
Result: Decreed Page 1 of 5
Kanta Devi v Om Prakash Saini & Ors. S-52/13
JUDGMENT UNDER ORDER 12 RULE 6 CPC
ORDER UNDER 7 RULE 11 CPC
SUIT FOR PERPETUAL & MANDATORY INJUNCTIONS
1. The plaintiff filed the present suit for Perpetual and Mandatory injunction against defendants no. 1 to 3 and defendant no. 4/SDMC.
2. The defendants no. 2 & 3 are the sons of defendant no. 1. The plaintiff submits that she is owner of property bearing no. 18, Masjid Moth, New Delhi, which is situated in Lal Dora and was constructed long back. The defendants no. 1 to 3 recently purchased old built up property bearing no. 30, Masjid Moth village, New Delhi (herein after called as the suit property), which is located in front of the house of plaintiff. The said property is measuring 60 sq. yds and there is passage of 5ft in between the house of plaintiff and the house of defendants no. 1 to 3. The defendants no. 1 to 3 demolished the said old building and in the second week of September 2012, they started constructing new building with basement floor and multi floors without any approval of site plan by the defendant no. 4. It is alleged that defendants no. 1 to 3 are constructing 5 floors including basement in property no. 30, Masjid Moth Village, New Delhi49.
3. It is submitted that due to aforesaid act of defendants no. 1 to 3 , several cracks have developed in the house of plaintiff. She prays for a decree of Perpetual Injunction against the defendants Result: Decreed Page 2 of 5 Kanta Devi v Om Prakash Saini & Ors. S-52/13 thereby restraining them not to take up any unauthorized construction in the suit premises without approval from competent authority.
4. Plaintiff is also seeking decree of Mandatory Injunction against the defendants directing them to demolish the construction raised by them to obstruct the passage of free air to the house building of the plaintiff from the ground level to the sky.
5. The defendants no. 1 to 3 filed Written Statement denying the prayer of the plaintiff. They denied that suit property has been recently purchased. It is claimed to be a property of defendants since last several decades coming from the father of defendant no. 1. It is denied that defendants have demolished the old building and constructed a new building as alleged.
6. No replication to written statement has been filed.
7. The plaintiff did not take appropriate steps for service of defendant no. 4 despite repeated opportunities. Thus, by the order of even date, the suit of the plaintiff qua defendant no. 4 was dismissed for non prosecution. There is nothing in the prayer with regard to grant of Mandatory Injunction to even indicate as to what is the extent of unauthorized construction in the suit premises. The suit plaint merely states that in second week of September 2012, a new building was being constructed and that the defendants no. 1 to 3 are constructing 5 floors with basement floor. It is not stated anywhere as to how many floors had been constructed till the time of filing of the present suit. Thus, the Result: Decreed Page 3 of 5 Kanta Devi v Om Prakash Saini & Ors. S-52/13 prayer for grant of Mandatory Injunction against defendants no. 1 to 3 to demolish the unauthorized construction is bereft of specific pleadings in this case. To this extent, no cause of action is seen in favour of the plaintiff and against defendants no. 1 to 3 for want of extent of unauthorized construction, if any and also for want of admission of the averments of unauthorized construction in suit premises by any competent civic agency. Thus, grant of prayer of Mandatory Injunction so far it pertains to defendants no. 1 to 3 is found to be without cause of action and therefore, plaint to that extent is liable to be rejected. Ordered accordingly.
8. So far as, the relief of Perpetual Injunction is concerned, the defendants no. 1 to 3 have made a statement before the Court to the effect that they shall not take up any unauthorized construction in the suit property without approval from competent authority. The said statement satisfies the plaintiff's suit in regard to the prayer made in clause (a). The statement also tantamounts to an admission of fact to the effect that the defendants are not willing to undertake construction in suit premises without obtaining requisite sanction from competent authority, though the said admission shall not be an admission on the other facts agitated by plaintiff. However, suffice would be to say that the said admission satisfied the prayer made in prayer clause (a). Therefore, the suit of the plaintiff is decreed, under Order 12 Rule 6 CPC by this judgment, for Perpetual Injunction. Defendants No.1 to 3 are hereby restrained from raising Result: Decreed Page 4 of 5 Kanta Devi v Om Prakash Saini & Ors. S-52/13 unauthorized construction over the suit premises i.e.property no. 30, Masjid Moth village, New Delhi110049 without any approval from competent authority.
9. Parties are left to bear their own costs.
10.Decree sheet be prepared accordingly.
11.File be consigned to record room.
Announced in the open Court (Manish Yaduvanshi) On this 21st day of May, 2013. SCJCumRC (South) Saket Courts, Delhi Result: Decreed Page 5 of 5