Delhi District Court
Sh. R.S. Sharma vs Motor General Finance Ltd on 4 August, 2016
IN THE COURT OF SH. SHAILENDER MALIK:ADJ16(C)
TIS HAZARI COURTS;DELHI
RCA No. 54/16
New No. 661034/16
In the matter of :
Sh. R.S. Sharma ...Appellant
vs.
Motor General Finance Ltd. ....Respondent
ORDER
1 This is an appeal against order dt 03.05.2016 of Ld. Civil Judge whereby the suit no. 224/15 of the plaintiff/ appellant herein was dismissed being not maintainable and barred by section 41(h) of Specific Relief Act.
2 Facts leading to filing present appeal, precisely be stated that plaintiff / appellant stated to be owner of property no. 4598/12B, Gola Cottage, (Third and Fourth Floor) Daryaganj, New Delhi. Plaintiff is stated to be living in the said property. It is however, alleged that defendant had encroached upon a common space in between his RCA No. 54/16 Page no. 1/9 building i.e. 12B Gola Cottage , Daryaganj and adjoining building i.e. 11/4597 Daryaganj by wrongfully raising construction over it. It is stated that upon investigation it was transpired that defendant was raising construction with malafide intention to close long existing kitchen and living room window of the plaintiff, which opens up towards the said open space in between two buildings. Plaintiff stated to have made the complaint to the police as well as to the MCD however when no action was taken suit was filed for decree of injunction to restrain defendant from raising construction over open space between the building of plaintiff i.e. 4598 /12 B Gola Cottage, Daryaganj and the building of defendant i.e. 11/4597 Daryaganj. It is also prayed that defendant be restrained from blocking kitchen and living area window in the building of the plaintiff and by decree of mandatory injunction alleged unauthorized structure be demolished.
3 Defendant filed the WS taking the objections that suit is bad for nonjoinder of MCD, suit of the plaintiff was denied and it was pleaded that in fact plaintiff has taken law into his hands by violating MCD by laws by raising unauthorized construction. It is stated that defendant had lodged complaint with Executive Engineer Building, South Delhi MCD on 16.09.15 regarding the encroachment upon the building and land belonging to defendant. Defendant stated to have sent reminders also. It is stated that defendant is raising construction in his own piece of land and such construction is being raised as per law. It is stated that defendant has a right of privacy.
RCA No. 54/16 Page no. 2/94 Ld. Civil Judge while considering the application of the plaintiff under Order 39 Rule 1 & 2 CPC, instead of deciding that application , framed following issues regarding maintainability of the suit : "Whether the suit is maintainable in its present form for simplicitor injunction being barred under Section 41 (h) of Specific Relief Act"
5 Vide impugned judgment dt 03.05.16 Ld. Civil Judge concluded that suit is barred by above mentioned provision because the plaintiff had equally efficacious relief of seeking declaration of alleged easmentary rights over the supposedly common space. Ld.Civil Judge has also noted that plaintiff has failed to file the original sale deed along with the site plan in order to establish any such easmentary rights which plaintiff is claiming indirectly in the present suit. Ld. Civil Judge has further observed as "......moreover perusal of the photographs filed on the record by plaintiff himself, as part of pleadings reveal that the "supposedly" common space is within the boundaries of alleged property of the defendant only, while the plaintiff has completely built up his property without leaving any space in his own property situated adjacent to the property of defendant...."
RCA No. 54/16 Page no. 3/96 Above said findings given by Ld. Civil Judge have been impugned in the present appeal, on the ground that the provisions of Section 41(h) of Specific Relief Act had no application in the facts and circumstances of the plaintiff's case and suit was very much maintainable, it is stated that the suit for injunction was filed by the appellant with the belief that open space existing in between two buildings is meant for enjoyment of free air and sunlight for the occupants of both the buildings and no construction could have been raised on such open space by anybody. It is stated that site plan filed by the respondent before the trial court record show that he claims to be owner of such "open space", whereas any construction to be raised on such open space is unauthorized. It is a common area meant for the convenience of occupants of both the buildings, whereas trial court failed to appreciate this fact. It is stated that trial court without deciding the interim injunction application has dismissed the suit on the ground of violative of section 41 (h) whereas such provisions was not applicable.
7 Notice of the appeal was sent to the respondent, which was earlier received back unserved with the report that premises was found locked and construction work was going on. Thereafter, notice of the appeal was served by way of affixation. None appeared on behalf of the respondent.
RCA No. 54/16 Page no. 4/98 I have heard appellant and has gone through the trial court record. Having gone through the impugned order , as noted above Ld. Civil Judge concluded the suit of the plaintiff being barred by provisions of section 41 (h) of Specific Relief Act. Before we discuss the facts of the case, I find it appropriate to mention the scope and import of above mentioned provisions under Section 41 (h) a perpetual injunction cannot be granted when equally efficacious relief can be obtained by any usual mode of proceedings. The purpose of this clause is to prevent multiplicity of proceedings. The word efficacious means which would put the plaintiff in the same position in which he would have been if he had not asked for a relief of injunction. It refers to the relief being capable of obtaining by another usual mode of proceedings, which can also be equally available in law, giving complete relief which a suit for injunction could have give. Intention of legislature in refusing injunction, when an equally efficacious remedy is available, is not only to prevent multiplicity of litigation but also to give effect to the principle which Order 2 of Civil Procedure Code provides i.e. whole exercise of adjudication of rights of parties in respect of one cause of action, should be in one complete suit and there should not be fragmentation of one cause of action for different relieves. The clause, therefore applies only if (i) there is any other usual mode of securing relief, (ii) The relief obtainable thereby is as efficacious as an injunction, (iii) The plaintiff is certain to secure such relief.
RCA No. 54/16 Page no. 5/99 Expression "equally efficacious relief" has been consciously mentioned in the above said clause to mean that relief which can be obtained by other usual mode is equally efficacious, meaning thereby equally able to produce the results which was intended by the plaintiff , then only injunction can be refused. When there is a doubt as to whether certainly efficacious relief is available or not, then injunction cannot be denied by invoking such provisions. Whether equally efficacious relief can certainly be obtained by other usual mode of proceedings , thus is a question of fact to be seen in facts and circumstances of each case. Provision thus cannot be mechanically applied in every case where ever relief of injunction simplicitor has been sought.
10 Coming now to the facts of the case, while there may not be denial that plaintiff has alleged in the plaint (para5) that defendant is raising construction with the malafide intention to close / block existing kitchen and leaving room windows opening towards the open space in between the two buildings. But that does not mean that suit for injunction simplicitor cannot lie at all. One has to understand the difference between maintainability of a suit for injunction simplicitor and a suit wherein comprehensive relief is efficaciously available and required under the law to be sought. If there is no legal necessity for seeking the relief of declaration regarding easmentary rights , I find that plaintiff cannot be non suited by invoking the bar of section 41 (h) of the Act. Reading the RCA No. 54/16 Page no. 6/9 plaint in totality would indicate and essentially plaintiff was alleging against raising of unauthorized construction by the defendant in the open space in between two buildings. Therefore, the substance of the claim of the plaintiff is required to be kept in mind to examine whether relief of injunction simplicitor can be sought or not.it is not the intention of the law that the relief of injunction only cannot be sought. Section 41 (h) comes into operation only in those situation when there is a legal binding of seeking legally available efficacious remedy. If there is no such legal binding for seeking a particular relief , along with relief of injunction , then such suit of injunciton simplicitor cannot be dismissed by invoking the provisions of Section 41 (h) of the Act. In present case, without commenting on the truthfulness or veracity of allegations made in plaint, which of course will be checked by taking evidence in trial, suit cannot, however, be held to be not maintainable.
11 Ld. Civil Judge while deciding the preliminary issue has also noted the fact that plaintiff has failed to file the original sale deed along with the site plan to establish that there was any such easementary rights available for plaintiff. If we go through the plaint, plaintiff has no where claimed easementary rights , he has simply mentioned that windows of his kitchen and living room may be blocked because of alleged raising of construction by defendant in the common space in between two buildings. In such situation, non filing of original documents with site plan cannot be a reason to RCA No. 54/16 Page no. 7/9 reject the plaint in a suit. A suit can be held to be not maintainable purely on legal provisions. Moreover, law permits parties to suit to file original documents, even during trial.
12 It was also noted by ld. Civil Judge in the impugned order that photographs relied upon by the plaintiff along with the plaint reveal that the "suppossedly" common space is within the boundary of alleged property of defendant only. Seeing the photgraphs lying of the trial court record, first of all it does not convincingly indicate as to which property is of plaintiff and which of defendant, therefore, conclusion of ld. Trial court only on the basis of photographs that common space comes within the boundaries of defendant's property to my mind is far fetched. Trial court should have restrained from giving such observations on facts which otherwise require evidence to be taken from both the sides.
13 It be noted here that while this court find that trial court's finding of suit being not maintainable on account of bar of section 41
(h) of Specific Relief Act is not legally sustainable but, it be noted that there is a difference between maintainability and sustainability of the suit. If a suit is found to be maintainable may not be sustainable. Therefore, whatever observations are being made are only with regard to maintainability of the suit. It goes without saying that ld. Trial court would examine the sustainability of the suit in the light of evidence as come on the record. For the reasons discussed RCA No. 54/16 Page no. 8/9 above, I find that impugned order is liable to be set aside. Appeal is therefore allowed. Trial court is required to proceed with the trial in accordance with the law.
ANNOUNCED IN THE (SHAILENDER MALIK)
OPEN COURT ADJ16 (CENTRAL)
ON 04.08.2016 TIS HAZARI COURTS
DELHI
RCA No. 54/16 Page no. 9/9