Delhi District Court
Pramod Kumar vs . Sdmc & Anr. on 17 September, 2018
Pramod Kumar vs. SDMC & Anr.
MCA No. 43/17
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE03: SOUTH WEST DISTRICT:
DWARKA COURTS:NEW DELHI
Miscellaneous Civil Appeal No. 43/17
CNR No. DLSW010157642017
In the matter of:
Sh. Pramod Kumar
S/o Sh. Jagdyal Singh
R/o C38, 1st Floor, Gali No. 9,
Sadh Nagar, Palam Colony,
Delhi110 045. ....Appellant
Versus
(1) SDMC
Civic Center, Minto Road,
New Delhi
through its Chief Engineer.
(2) Sh. Pankaj Goyal
S/o Sh. Kirtan Kumar
R/o C38, 1st Floor, Gali No. 9,
Sadh Nagar, Palam Colony,
Delhi110 045. .....Respondents
Date of Institution of Appeal : 27.11.2017
Date on which order was reserved : 12.09.2018
Date on which order was pronounced
:
17.09.2018
O R D E R
1. This appeal has been preferred by the plaintiff assailing order dated 01.11.2017 dismissing plaintiff's application under Order XXXIX Rules 1 and 2 CPC.
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MCA No. 43/172. Brief conspectus of the facts leading to filing of appeal are narrated below : 2.1 Plaintiff Sh. Pramod Kumar has filed suit for permanent injunction for restraining defendants SDMC and Sh. Pankaj Goyal from demolishing the temporary shed installed in the balcony of first floor portion of property No. C38, Gali No. 9, Sadh Nagar, Palam Colony, Delhi and from creating any kind of encumbrance in the peaceful possession of his property.
2.2 As averred in the plaint, plaintiff and his wife being joint owner of first floor of property No. C38, Gali No. 9, Sadh Nagar, Palam Colony, Delhi are residing therein alongwith their two minor children. 2.3 Defendant No. 2 Sh. Pankaj Goyal is residing on the second floor of the building alongwith his wife and children and is alleged to be harassing the plaintiff and creating nuisance by dropping garbage, spitting gutka, hanging dirty clothes, etc. despite repeated request and persuasion. Plaintiff has stated about the misconduct and misbehaviour by the cousin of defendant no. 2 and his associates leading to quarrel and complaint bearing DD No. 56B dated 31.01.2016 U/s 107/115 Cr.PC lodged at PS Palam Village and referred to MLC No. 296 and 297 mentioning injuries suffered by plaintiff and his wife.
2.4 Further, he has also averred about temporary plastic shed / chajja installed in his balcony for avoiding droppings, etc. which was objected by defendant Sh. Pankaj Goyal and was eventually demolished by the officials of SDMC in the month of October 2016. 2.5 Defendant Sh. Pankaj Goyal, thereafter, continued creating nuisance for disturbing plaintiff and his family and fresh plastic shed within Page 2 of 7 DOD: 17.09.2018 Pramod Kumar vs. SDMC & Anr.
MCA No. 43/17permissible limits was installed in the balcony of the first floor of the building on temporary basis for avoiding nuisance and direct sunlight after informing concerned officials of defendant SDMC. 2.6 Plaintiff, nevertheless, was shocked and surprised when MCD officials alongwith police officials started visiting his floor since last week of April 2017 and asked him to remove the temporary shed failing which the same would be demolished and has thereafter filed suit for permanent injunction from restraining defendants from demolishing the temporary shed and from creating any encumbrance in his peaceful possession of suit property.
3. Plaintiff's suit was contested by defendant No. 2 Sh. Pankaj Goyal by filing his written statement disputing plaintiff's averments about nuisance in corresponding paras of reply on merits.
4. Arguments were heard and plaintiff's application under for interim relief has been dismissed by Ld. Trial Court by observing that no document was placed on record by the plaintiff verifying dimension of temporary shed / chajja in consonance with Rule 4.29.1(a) of 'The Model Building ByeLaws 2016' permitting projection of chajja into open spaces up to 0.75 meters and prima facie case could not therefore be made out for restraining defendant SDMC from removing the temporary shed installed in the portion of plaintiff's property. Defendant SDMC, nevertheless, was directed to follow due process of law as required under relevant Rules, Regulations, Byelaws, etc. while carrying out demolition work, if required.
5. Impugned order dismissing plaintiff's application has been assailed as illegal by submitting that Ld. Trial Court has failed to Page 3 of 7 DOD: 17.09.2018 Pramod Kumar vs. SDMC & Anr.
MCA No. 43/17appreciate the three basic principles for grant of interim injunction and neglected to consider Rule 4.29.1(a) of 'The Model Buidling ByeLaws 2016' which allows installation of temporary shed in the premises within permissible limits in consonance with the Rules.
6. Advocate Sh. Sudhir Tewatia for appellant and Advocate Sh. Vineet Malik for respondent No. 1 SDMC have addressed their submissions and matter is pending for order.
7. Trial Court Record reveals that written statement of defendant No. 1 SDMC was subsequently filed on 24.01.2018 contesting plaintiff's suit for want of statutory notice under Section 80 CPC and by referring to fiber sheet projection on the first floor of the building which has been booked under Section 343 / 344 of DMC Act and show cause notice was issued to the owner / builder and further action would be taken in due course of time.
8. The primary purpose and object of order granting interim relief is to evolve a workable formula to the extent called for by the demands of the situation, keeping in mind the pros and cons of the matter and striking a delicate balance between two conflicting interests, i.e., injury and prejudice, likely to be caused to the plaintiff if the relief is refused; and injury and prejudice likely to be caused to the defendant if the relief is granted. The need for such protection is therefore to be judged against the corresponding need of the defendant to be protected against injury resulting from exercising his own legal rights. The court must weigh one need against another and determine where the balance of convenience lies and may pass an appropriate order which discretion should be exercised reasonably, judiciously and on sound legal principles.
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MCA No. 43/179. It is well settled principle of law that granting or refusing temporary injunction rests on the sound exercise of discretion of the courts and such exercise of discretion cannot be lightly interfered with by the Appellate Court unless it is shown that such exercise of discretion is unreasonable or capricious as held in case titled "Gopal Lakshman Lakhani vs. Krishnaben Girdharilal Lalvani" AIR 2002 Gujarat 398.
10. Hon'ble Supreme Court of India in para no. 50 of the judgment titled "M/s Gujarat Bottling Co. Ltd. & Ors. vs. Coca Cola Company & Ors." AIR 1995 SUPREME COURT 2372 has observed : "In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporarily is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and Page 5 of 7 DOD: 17.09.2018 Pramod Kumar vs. SDMC & Anr.
MCA No. 43/17honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings."
11. It is, therefore, revealed from the plaint and written statement of defendant No. 1 that temporary shed installed by plaintiff in the first floor of property was earlier removed by officials of SDMC in October 2016 and fresh plastic shed has been installed again by the plaintiff which has been booked by defendant SDMC under Section 343 / 344 of DMC Act vide U.C File No. 504/B/UC/NG/17 dated 27.10.2017.
12. Plaintiff being a repeat defaulter is not entitled to equitable relief of injunction as no order restraining municipal authority from removing illegal shed / chajja projecting upon municipal land, in violation of Model Building ByeLaws, can be passed by the court. Moreover, plaintiff's apprehension against any manipulative action has been taken due care as Ld. Trial Court vide impugned order has directed defendant SDMC to follow due process of law as required by the relevant Rules, Regulations, ByeLaws, etc. while carrying out the demolition work.
13. No ground for interference by Appellate Court is made out in the absence of any illegality or infirmity in impugned order. Miscellaneous Civil Appeal assailing order dismissing plaintiff's application under Order XXXIX Rules 1 and 2 CPC is therefore dismissed.
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MCA No. 43/1714. Trial Court Record be sent back to concerned court alongwith copy of order.
15. Appeal file be consigned to Record Room after due compliance.
Digitally signedTARUN by TARUN YOGESH YOGESH Date: 2018.09.19 15:12:52 +0530 Announced in the open Court (Tarun Yogesh) On 17.09.2018 ADJ03/South West Dwarka / New Delhi Page 7 of 7 DOD: 17.09.2018