Delhi District Court
Sh. Ashok Kumar vs M/S Aggarwal Sweets on 17 November, 2012
IN THE COURT OF Ms. POOJA GUPTA : CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Suit no.06/10
Unique ID no. 02406C0471152010
IN THE MATTER OF:
Sh. Ashok Kumar,
S/o Late Sh. G.R. Malhotra,
R/o C149, Pandav Nagar,
Near Radha Kishan Mandir, Delhi. .....Plaintiff
Versus
1. M/s Aggarwal Sweets,
Leela Market, South Extn.,
PlazaIII, Masjid Moth,
New Delhi.
2. The SubDivisional Magistrate
Defence Colony, M.B. Road,
Saket, New Delhi110068.
3. The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Delhi.
4. The SHO,
P.S. Defence Colony,
New Delhi.
Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 1 of 26
5. Sh. Suraj Bhan,
S/o.: Late Sh. Bhairo Sahay,
R/o.: 258, Masjid Mode, New Delhi. .....Defendants
DATE OF INSTITUTION : 03.03.2010
DATE OF RESERVING THE ORDER : 18.10.2012
DATE OF DECISION : 17.11.2012
JUDGMENT
1. Vide this judgment I shall decide the suit of the plaintiff whereby the plaintiff has sought permanent and mandatory injunctions against the defendant no.1, his agents and assignee etc. to restrain the defendant no.1 from running the illegal kitchen in the common place in front of shop of the plaintiff and to vacate the said common place encroached by defendant no.1, a permanent injunction restraining the defendant no.1, his legal heirs, associates, agents etc. from encroaching, trespassing, threatening and interfering the common vicinity in front of shop of the plaintiff as shown in site plan filed by the plaintiff.
2. The plaintiff has further sought a mandatory injunction against defendant no.1 restraining the defendant no.1, his legal heirs etc. from constructing or installing any temporary or permanent structure by Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 2 of 26 way of iron jali, etc. to encroach the portion in front of shop of the plaintiff. The plaintiff has also claimed Rs. 2 Lakhs as damages from defendants for having caused financial loss to the plaintiff due to closure of business in the said shop.
3. Initially the plaintiff had filed a suit against the present defendant no.1 to 4. Defendant no.1 M/s. Aggarwal Sweets and defendant No. 2 The SubDivisional Magistrate, Defence Colony were proceeded exparte on 23.03.2010. On an application under Order I Rule 10 of the Code of Civil Procedure, 1908, Sh. Suraj Bhan S/o Late Sh. Bhairo Sahay was impleaded in the array of parties as defendant no.5. Facts as per Plaint
3. As per the plaint the plaintiff is the owner of shop no.G3, Leela Market, South Extension, Plaza III, Masjid Moth, New Delhi (shown in red in site plan filed with the plaint). The defendant no.1 is running his sweet shop kitchen in common place due to which public nuisance is created as people consume eatables and in the absence of proper disposal of left over garbage gets collected creating foul smell, attracting flies, mosquitoes etc. raising fear of an epidemic. Even gas cylinders are used by defendant no.1 without safety precautions and the Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 3 of 26 defendant no.1 uses a home gas connection without a commercial licence. The gas cylinders pose risk and danger of life as there is electric junction nearby due to which there is likelihood of occurrence of some dangerous incident. The common place has been encroached and used as a common kitchen for 24 years.
4. On 17.09.2002 plaintiff lodged a complaint at PSDefence Colony in respect of threats received by him extended by the owner of the building Sh. Atri along with defendant no.1 to sell the shop. In the complaint the plaintiff also appraised the police about the illegal encroachment of defendant no.1 and use of gas cylinders near the electric transformers and requested for the removal of the same.
5. On 21.09.2002, 10.10.2002 and also 27.11.2002 the plaintiff made various complaints to various officials. On 03.06.2003 the Sub Divisional Magistrate, Defence Colony ordered for removal of the nuisance under Section 133 of the Code of Criminal Procedure, 1973 and directed to defendant no.1 to stop running the kitchen and to vacate the common place. Vide the same order, SHO Defence colony was also directed to submit compliance report within one week but no steps were taken. Pursuant to the order the defendant no.l removed the illegal open Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 4 of 26 kitchen which was in front of the shop of the plaintiff for the time being.
6. In 2006 the defendant no.1 again started his unlawful, illegal and unjustifiable encroachment and in respect of the same a complaint was made on 29.05.2006 to the Sub Divisional Magistrate. On 10.01.2007 another complaint was made to SHO Defence Colony vide DD no.34B regarding reoccurrence of the nuisance. By the encroachment the defendant no. 1 violated the rules and regulations of the Municipal Corporation of Delhi. The defendant no.1 has also installed an iron jali with pakka structure in front of shop of plaintiff due to which the plaintiff is suffering immense loss to his business and safety of his life as well as his worker's life in addition to causing mental agony. Various complaints were made to defendant no.2, 3 and 4 who did not take any steps. There was constant threat to the lives of the public as no fire extinguishers were installed and there was no passage to run away from the side in case of any untoward incident.
7. The defendant no.1 also used to earn illegal gratification and weekly rent from the thelas which the defendant used to install in the surrounding of his sweet shop due to which there was traffic jam in the vicinity. The plaintiff being a law abiding citizen has a right to protect his Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 5 of 26 lawful rights and the defendant no.1 has no right to obstruct the running of the shop by the plaintiff and also endangering the life and livelihood of the plaintiff.
8. Legal notice sent by the plaintiff were served on defendant no. 1,2 and 3 on 03.01.2010 after which the defendant along with some gunda elements threatened the plaintiff to vacate the suit premises or to sell the same to defendant no.1. The defendant no.1 along with some goonda elements used to interfere and stopped the business of the plaintiff and did not allow the plaintiff to reopen his business due to which the plaintiff suffered financial losses and injury. Hence the present suit.
Facts as per Written Statement of Defendant no.3, Municipal Corporation of Delhi.
9. Preliminary objection was raised in respect of non service of statutory notice under Section 477/478 of the Delhi Municipal Corporation Act and it was contended that as a show cause notice had been issued to Sh. Suraj Bhan, Aggarwal Sweets, Leela Market, South Extension PlazaIII, New Delhi vide Dy.No.D/1627/DHO/SZ/0910 dated 03.03.2010 against the running of sweet shop and kitchen from the site in Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 6 of 26 question near Shop no.G3, Leela Market, South Extension Plaza III, Masjid Moth, New Delhi which was duly replied by an affidavit of owner/occupier Sh. Suraj Bhan stating that he was not running any kitchen in the property bearing no.G6, 273, Masjid Moth, New Delhi. A letter was sent to EE (MS) 1, South Zone vide Dy.
No.DHO/HD/SZ/2010/D/62 dated 16.04.2010 for removing encroachment if any from the common passage of the site in question. The site was lastly inspected by the officials of Municipal Corporation of Delhi on 04.05.2010 during which it was noted that the owner/occupier of said shop was not running any kitchen or sweet shop. On merits defendant no. 3 denied all the averments of the plaintiff.
Facts as per Written Statement of Defendant No.5 Sh. Suraj Bhan.
10. Preliminary objection was raised that suit had been filed without describing existence of M/s Aggarwal Sweets in the site plan and there was no mention of defendant no.1 and no name of proprietor or owner of M/s Aggarwal Sweets was given. It was stated that M/s Aggarwal Sweets was situated at shop no.G1, property no.273, Masjid Moth, and was being run by Sh. Shiv Lal who was sole proprietor of defendant no.1 but in the plaint no description was given. It was also Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 7 of 26 stated that the order of Ld. Sub Divisional Magistrate dated 03.06.2003 was governed by the Code of Criminal Procedure, 1973 and could not be agitated in a Civil Court though Section 188 of the Indian Penal Code might be attracted. It was stated that the portion shown in red in the site plan was not the passage but was a part of covered open space which was above the basement and was not part of the passage left by the builders for the use of shopkeepers and their customers.
11. It was also stated that owners of property no.273, Masjid Moth had sold the G6 portion to the defendant Suraj Bhan who was the absolute owner of the same and defendant no.1 or its owner did not have any concern with the same. It was further stated that property was being utilized by Suraj Bhan for his own purposes of placing and distribution of Langar (Prasad) under the patronage of Dhyan Foundation, A80, South Extension PartII, New Delhi and storage of Langar/Prasad has been closed as per instructions of defendant no. 4. It was further stated that no kitchen was ever run by the defendant no. 5 or defendant no.1 in the property No.G6, part of property No.273, Masjid Moth, New Delhi above the open space of the basement.
12. It was also stated that property no.G6 did not hinder the Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 8 of 26 space of 3 feet 2 inch wide gallery which was being used as a passage by shopkeepers and customers. It was further stated that the electric transformer was situated adjoining the property No.389, known as South Extension Tower, New Delhi and was situated at a distance of 20ft from the property No.G6, of property no. 273, Masjid Moth, New Delhi and there was a pucca 20 ft. wide road between the property No.G6 and Electric Transformer hence there was no danger of any kind existing at the spot.
13. Preliminary objection were also taken in respect of absence of application under Section 80 of Code of Civil Procedure, 1908, under valuation of suit and lack of proper court fees. On merits the defendant no.5 denied the averments made by the plaintiff in his plaint and argued that the plaintiff was seeking a relief from the court on the basis of a wrong site plan. The ownership of the plaintiff of shop no.G3 or in PlazaIII was also questioned.
Replication
14. In its replication to the written statement of defendant no.5, the plaintiff stated that in the proceedings before the SDM, Sh Suraj Bhan had appeared and adhered to the order. It was further stated that the Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 9 of 26 alleged documents dated 25.02.2003 ie Possession Letter, Affidavit, Agreement to Sell and Purchase and GPA were not produced before the SDM and were forged, fabricated and not in accordance with the law of the land being unregistered and being in contravention of the building rules and regulations. The plaintiff also asserted that the defendant no.5 was making averment on behalf of itself as well as defendant no.1. The very existence of G6 was denied. The rest of the contents of plaint were reiterated and averments made by the defendant no.5 in its written statement were denied.
15. The defendant no.1 and 2 did not enter appearance despite being served with the summons of the suit and were proceeded exparte vide order dated 23.03.2010. From the pleading of the parties the following issues were framed by the Ld Predecessor of this Court:
1 Whether the suit of the plaintiff is liable to be dismissed under Section 477, 478 Delhi Municipal Corporation Act ?OPD 2 Whether the plaintiff is entitled to decree of permanent injunction?OPP 3 Whether the plaintiff is entitled to mandatory injunction?
OPP Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 10 of 26 4 Whether the plaintiff is entitled to decree of damages?OPP 5 Relief if any.
16. In support of its case the plaintiff led Plaintiff Evidence and examined only one witness i.e., himself as PW1 and relied upon various documents i.e. i.e. site plan (Ex.PW1/A), complaint dated 17.09.2002 with photographs (Ex.PW1/B and Ex.PW1/C), copy of complaint dated 21.09.2002 to the Lt. Governor; The Commissioner of Police, The DCP (Vigilance); The DCP (South); The SDM (South); The Chief Minister of Delhi; The Home Minister; The Chairman, Municipal Corporation of Delhi; Anti Encroachment Cell; Chief Fire Officer; The Deputy Health Officer, Municipal Corporation of Delhi; The Licensing Department, Municipal Corporation of Delhi; The Food & Adulteration; The Deputy Commissioner of Police (Traffic) and Health Minister, Govt. NCT of Delhi regarding the use of open gas cylinders by defendant no.1 near the Govt Electricity transformer and about the indifferent attitude of the police towards the plight of the plaintiff)(Ex.PW1/D) along with postal receipts and AD card i.e. (Ex.PW1/E and Ex.PW1/F); copy of complaint dated 10.10.2002 to the Lt. Governor of Delhi; Home Ministry; Commissioner of Police; Deputy Commissioner of Police (Vigilance Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 11 of 26 South); Chief Fire Officer (South); Human Rights Commission through fax) in respect of encroachment and threat of life. (Ex.PW1/G); copy of complaint dated 27.11.2002 to Hon'ble Shri Atal Bihari Vajpai, the then Prime Minister of India; Smt. Shila Dixit, Chief Minister of Delhi; Shri Radhey Shyam Gupta, Commissioner of Police and to Hon'ble Lt. Governor, Sh. Vijay Kapoor) regarding illegal, unlawful and unjustifiable encroachment and running of illegal kitchen near the electricity transformer (Ex.PW1/H) along with postal receipts (Ex.PW1/I); Acknowledgment dated 11.12.2002 from the office of Hon'ble Prime Minister (Ex.PW1/J); copy of order dated 03.06.2003 passed by the Sub Divisional Magistrate, Defence Colony under Section 133 of the Code of Criminal Procedure, 1973(Ex.PW1/K); Copy of letter dated 11.11.2003 sent to SHO Defence Colony (Ex.PW1/L), copy of complaint dated 29.05.2006 to SDM Defence Colony (Ex.PW1/M), photographs (Ex.PW1/N), Legal notice dated 30.01.2010 (Ex.PW1/O) along with postal receipts and UPC (Ex.PW1/P and Ex.PW1/Q). The witness was duly cross examined by the defendant no.5.
17. In order to prove its defence, only defendant no.5 led evidence and examined himself as DW1 who tendered his evidence in Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 12 of 26 chief by way of affidavit and relied upon the site plan which had already been exhibited as Ex.PW1/DX1. The defendant no.2 also examined Sh. K.G. Atree, Director of M/s. Atree Developers (P) Ltd. as DW2 who tendered his evidence in chief by way of affidavit and also relied upon the site plan already exhibited as Ex.PW1/DX1. Both the witnesses were duly cross examined by the Ld Counsel for the plaintiff.
18. Arguments were advanced by the Ld counsel for the plaintiff as well as defendant no.5.
19. I have considered the arguments advanced and carefully perused the evidence on record. From the evidence on record my issue wise findings are as under:
Issue No. 1: Whether the suit of the plaintiff is liable to be dismissed under Section 477/ 478 Delhi Municipal Corporation Act?
20. The onus to prove this issue was on the defendant. A preliminary objection had been taken by the defendant no.3 in its written statement that suit of the plaintiff was not maintainable as the statutory notice under Section 477/478 of Delhi Municipal Corporation Act 1957 had not been served upon the defendant no.3 i.e. Municipal Corporation of Delhi.
Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 13 of 26
21. To prove this issue the defendant no.3 did not lead any evidence. Vide order dated 03.03.2010, the Ld. Predecessor of this Court had allowed the application of the plaintiff under Section 80 (2) of Code of Civil Procedure, 1908 exempting the plaintiff from service of the mandatory notice on defendant no. 2,3 and 4 i.e. SubDivisional Magistrate, Defence Colony; Commissioner, Municipal Corporation of Delhi and SHO PS Defence Colony on the ground that urgency of the relief sought required exemption from the service of the notice. As no evidence has been led by the defendant no.3 to prove this issue as also in view of the order dated 03.03.2010, this issue is decided against the defendant no. 3 and in favour of the plaintiff.
Issue No. 2: Whether the plaintiff is entitled to decree of permanent injunction?
22. The onus to prove this issue was on the plaintiff. By virtue of Section 38 of the Specific Relief Act, 1963 the relief of permanent injunction can be granted when there a breach of obligation existing against the plaintiff. Hence the plaintiff was required to show that there was some obligation existing in his favour in respect of the common place in front of his shop as also that there was an illegal kitchen therein Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 14 of 26 resulting in breach of such obligation entitling the plaintiff for the grant of the relief of permanent injunction. Further the plaintiff was required to prove that the defendant no.1 was encroaching, trespassing, threatening and interfering in the common vicinity in front of shop of the plaintiff as shown in red in the site plan.
23. In its deposition as PW1, the plaintiff deposed in its examination in chief by way of affidavit that he is the owner of the shop no.G3, Leela Market, South Extension, Plaza III, Masjid Moth, New Delhi which property is shown in red in site plan (Ex PW1/A). In its deposition as PW1, the plaintiff reiterated the contents of its plaint in respect of the defendant no.1 running his sweet shop kitchen in the common place, the kitchen creating public nuisance; the defendant no.1 failing to arrange for the proper disposal of leftover, due to which garbage got gathered creating foul smell, attracting flies, mosquitoes etc. raising fear of an epidemic; defendant no.1 running the kitchen using gas cylinders without safety precautions and using a home gas connection without a commercial licence or safety appliances creating hardship, risk and danger to life as there is an electric electric junction nearby to the encroached common; encroachment of common place and use of the Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 15 of 26 same as a common kitchen for 24 years being an open danger to the lives of other establishments in the vicinity and lives of numerous passersby.
24. PW1 further deposed that various complaints were made by the plaintiff to various authorities on 17.09.2002 (Ex.PW1/B); 21.09.2002(Ex.PW1/D), 10.10.2002 (Ex.PW1/G), 27.11.2002 (Ex.PW1/H) and on 03.06.2003 (Ex. PW1/K) the SubDivisional Magistrate, Defence Colony ordered for removal of the nuisance under Section 133 of the Code of Criminal Procedure, 1973 and directed to defendant no.1 to stop running the kitchen and to vacate the common place. PW1 further deposed that on 11.11.2003 a complaint was made by the plaintiff to SHO, Defence Colony (Ex. PW1/L) in respect of further deterioration despite orders of the SDM. PW1 further deposed that pursuant to the complaints and order of the Sub Divisional Magistrate, Defence Colony, the defendant no.l removed the illegal open kitchen which was in front of the shop of the plaintiff and nearby the electric transformer.
25. The plaintiff as PW1 further deposed in its examination in chief by way of affidavit that in 2006 the defendant no.1 again started his unlawful, illegal and unjustifiable encroachment by first placing his utensils and then placing the illegal gas cylinders and in respect of which Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 16 of 26 a complaint was made on 29.05.2006 to the Sub Divisional Magistrate (Ex. PW1/M) and on 10.01.2007 vide DD no.34B another complaint was made to SHO Defence Colony regarding reoccurrence of the nuisance.
26. PW1 further deposed that defendant no.1 had further installed an iron jali with pucca structure in front of his shop due to which plaintiff was suffering from immense loss to his business and safety of his life as well as lives of other workers. PW1 also relied upon the photographs (Ex. PW1/C).
27. During the cross examination of PW1, an objection was raised by the defendant Sh Suraj Bhan in respect of exhibiting the site plan (Ex. PW1/A) as the same did not bear the signatures of the PW1. As the PW1 was not the executant of the document nor had signed the same as a witness, hence he could not have exhibited the same. Further no other witness was examined by the plaintiff to prove its site plan. Hence the site plan (Ex. PW1/A) remains unproved.
28. The plaintiff has asserted his right in respect of the portion shown in red in the site plan. No other identification of the common vicinity or illegal kitchen has been given. However, the plaintiff has not been able to prove its site plan. On the other hand, PW1 during its cross Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 17 of 26 examination has admitted that Ex. PW1/DX1 which is the site plan of the defendant is the correct site plan which includes the area which was not shown in his site plan.
29. Thus, from the evidence on record the plaintiff has not been able to discharge its onus in respect of the identification of the common vicinity in front of the shop of the plaintiff or in respect of the illegal kitchen which is shown in the site plan (Ex. PW1/A) in red because as per the oral deposition of the plaintiff as PW1, the plaintiff is claiming to be the owner of the property shown in red in the site plan(Ex. PW1/A). Hence it cannot be said that the property which forms the subject matter of the suit has been sufficiently identified. The relief of injunction cannot operate in vacuum and since the property remains unidentified, hence relief of injunction can not be granted.
30. Be that as it may, the plaintiff has also relied on its oral deposition as PW1 as well as an order passed by the Sub Divisional Magistrate, Defence Colony on 03.06.2003 (Ex. PW1/K) to prove that the defendant no.1 was running an illegal kitchen and was directed to stop running the kitchen and to vacate the common place. Perusal of Ex. PW1/K reveals that the same is a photocopy. However, as no objection Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 18 of 26 was raised by the defendant as to mode of proof at the first instance, hence the same can be looked into. Perusal of Ex. PW1/K reveals that the document in question is a mere show cause notice and a prima facie view has been taken by the SDM and directions have been given to the defendant no.1 to stop running the kitchen in the common place and to vacate the same. An opportunity had been given to the defendant no.1 to show cause against the enforcement of the order in case the defendant no. 1 objects to the same. The said order did not operate only against the defendant no.1 but other persons namely Sh Ashok and Sh. Atri were also parties. During its cross examination, DW1 admitted that he had appeared before the SDM on behalf of Aggarwal Sweets. But DW1 also deposed that he had nothing to do with Aggarwal Sweet now and the same was being run by his brother Sh. Shiv Lal.
31. Be that as it may, even as per own deposition of plaintiff as PW1, the illegal kitchen had been removed pursuant to the order of the SDM and various complaints by the plaintiff and it was only in 2006 that it was started again. Hence the order dated 03.06.2003 passed by the SDM is of no assistance to prove the existence of illegal kitchen or the association of Sh. Suraj Bhan with Aggarwal Sweets in 2006. No Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 19 of 26 corroborative evidence has been brought on record by the plaintiff to prove that the illegal kitchen was started again in 2006 except oral deposition of PW1. Ex. PW1/L relied upon by the plaintiff pertains to installation of a Generator Set and Borewell and not to the illegal kitchen or common vicinity. The oral deposition of PW1 in respect of re occurrence of unlawful, illegal and unjustifiable encroachment by the defendant no.1 by first placing his utensils and then placing the illegal gas cylinders is supported only by a complaint dated 29.05.2006 made to the Sub Divisional Magistrate (Ex. PW1/M). Perusal of the same reveals that no averments have been made as deposed to by PW1 in its oral testimony except to the extent that allegations of contempt of order of SDM were made. No witness was examined by the plaintiff to prove the action taken on such complaint. No other evidence was produced on record to corroborate the oral testimony of the plaintiff. The photographs (Ex. PW1/C) being undated and not accompanied with any negatives cannot be looked into as evidence as the same have not been proved. Hence the fact of existence of illegal kitchen remains unproved by the plaintiff.
32. Further, the plaintiff has claimed that the alleged portion G6 is a part of the common passage and vicinity and does not have Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 20 of 26 independent existence whereas it is the defence of the defendant no.5 that Sh. Suraj Bhan is the independent owner of the property bearing no.G6 and no kitchen is being run therein. Further, the defendant no.5 Sh Suraj Bhan as DW1 has deposed he was using the G6 for his own purpose of placing and distribution Langar (Prasad) under the patronage of Dhyan Foundation, A80, South Extension PartII, New Delhi and storage of Langar/Prasad has been closed as per instructions of defendant no. 4. The onus to prove that the alleged portion G6 was part of common passage and vicinity was on the plaintiff but no evidence has been produced by the plaintiff to prove the same.
33. In its deposition as PW1 the plaintiff relied upon the status reports filed by the Deputy Health Officer, South Zone, MCD dated 22.04.2010 and the status report filed by Sh. Atul Kumar Verma, SHO PS Hauz Khas as well as the photographs to prove encroachment of Sh Suraj Bhan. However, the plaintiff did not prove the status reports by summoning the author thereof nor examined any other witness to prove the same. Hence the plaintiff has failed to prove the encroachment by Sh. Suraj Bhan.
34. Though in its cross examination as DW1, Sh Suraj Bhan Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 21 of 26 admitted that there was no shop beneath G6 in the basement and further deposed that it was correct that the design of the basement and the ground floor was same and also volunteered that the design was almost similar, DW1 denied the suggestion that he had encroached the space and given it address of G6. DW1 also denied the suggestion that the said alleged G6, is encroachment on the open space/passage meant of shopkeepers and customers to reach to the assigned shops as per MCD building rules. He further denied the suggestion that after the order of SDM space G6 was completely cleaned and that thereafter it has been again encroached upon by him for storage of his goods. But, the DW2, deposed during his cross examination that the building had five floors excluding basement and ground floor and also that the property has been sold space wise as per the requirement of the purchaser. DW2 further deposed that there was no uniformity. DW2 further deposed that there were offices built just above G6 shop and the same were occupied.
35. Thus, from the evidence on record the plaintiff has failed to prove that that the portion G6 is an encroachment in the common area as no uniformity on the different floors in the building could be proved by the plaintiff by bringing on record any corroborative evidence. Since Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 22 of 26 the plaintiff has failed to prove the fact of encroachment hence the question of vacating the common place encroached by defendant no.1 does not arise.
36. Further, the plaintiff was also required to prove that the defendant no.1 was encroaching, trespassing, threatening and interfering in the common vicinity in front of shop of the plaintiff as shown in red in the site plan. In its deposition as PW1 the plaintiff had deposed in his evidence in chief that due to the illegal kitchen there was a danger to the lives of the plaintiff as well as others due to the electricity transformer nearby. However, as discussed hereinbefore, the plaintiff has not been able to prove the site plan, encroachment, existence of illegal kitchen. Further in his cross examination, the plaintiff admitted that the distance between the alleged illegal kitchen and the transformer was about 22 feet and there was a main road on which the transformer was situated. Thus, from the evidence on record, the plaintiff has failed to produce any evidence in respect of the trespass, threat, interference in the common vicinity in front of shop of the plaintiff as shown in red in the site plan.
37. In view of the foregoing discussion, the plaintiff has failed to discharge the onus cast upon it and accordingly this issue is decided Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 23 of 26 against the plaintiff and in favour of the defendants. Issue No.3: Whether the plaintiff is entitled to mandatory injunction?
38. The onus to prove this issue was on the plaintiff. By virtue of Section 39 of the Specific Relief Act, 1963 the relief of mandatory injunction can be granted to prevent a breach of obligation existing against the plaintiff.
39. The plaintiff has sought a mandatory injunction against defendant no.1 restraining the defendant no.1, his legal heirs etc. from constructing or installing any temporary or permanent structure by way of iron jali, etc. to encroach the portion in front of shop of the plaintiff.
40. The nature of relief being sought appears to be preventive in nature. However, in its deposition as PW1, the plaintiff deposed that the defendant no.1 has installed an iron jali with pacca structure in front of shop of plaintiff. Thus, as per own testimony of PW1, the installation of the iron jali etc. has already been done. Further as discussed in issue no.2 the plaintiff has not been able to show existence of any obligation in its favour in respect of the common place.
41. In view of the same, the plaintiff has failed to discharge the onus cast upon it and accordingly this issue is decided against the Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 24 of 26 plaintiff and in favour of the defendants.
Issue no. 4: Whether the plaintiff is entitled to decree of damages?
42. The onus to prove this issue was on the plaintiff. The plaintiff was required to show that the financial loss had been caused to him due to the closure of his business in his shop G3, Leela Market, South Extension, Plaza III, Masjid Moth, New Delhi. In its deposition as PW1, the plaintiff deposed that due to the encroachment, immense loss was being caused to the plaintiff's business. The witness was not cross examined in this fact. However, as the plaintiff has failed to prove the encroachment, hence the question of award of damages suffered due to the same does not arise. Further, the plaintiff has failed to produce any corroborative evidence to prove the existence of his business in his shop G3 or in respect of the closure of the same or in respect of the financial losses caused to him.
43. Hence, the plaintiff has failed to discharge the onus cast upon it and accordingly this issue is decided against the plaintiff and in favour of the defendants.
Relief:
44. In view of my findings on issue no.2 to 4, the suit of the Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 25 of 26 plaintiff is dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
45. File be consigned to the Record Room after necessary compliance.
Announced in the open court on 17.11.2012 (Pooja Gupta) Civil Judge03(South) New Delhi Civil Suit No.06/10 Sh. Ashok Kumar Vs. M/s Aggarwal Sweets Page 26 of 26