Delhi District Court
Asim Ali vs . Mohd. Asif & Anr. on 30 May, 2022
IN THE COURT OF SH. DEEPAK VATS
Administrative Civil Judge - Commercial Civil Judge
Additional Rent Controller
South-East, Saket Courts, Delhi
CS No. 51135/2016
Asim Ali Vs. Mohd. Asif & Anr.
Asif Ali
S/o Sh. Syed Shahid Ali
R/o Flat No.34, Gulshan-E-Azad Society,
G-53, Shaheen Bagh, Jamia Nagar,
New Delhi-110025.
Through its Attorney Sh. M.A. Saad
.... Plaintiff
Versus
1. Mohd. Asif
S/o Sh. Unknown
R/o Flat No.33, Gulshan-E-Azad Society,
G-53, Shaheen Bagh, Jamia Nagar,
New Delhi-110025.
2. Sarwat Asif
W/o Sh. Mohd. Asif
R/o Flat No.33, Gulshan-E-Azad Society,
G-53, Shaheen Bagh, Jamia Nagar,
New Delhi-110025.
Also at:
High PAC, B-10,
Capital Town, Faser Road,
Patna, Bihar
.... Defendants
Date of institution : 02.05.2015
Arguments heard : 30.05.2022
Date of order : 30.05.2022
_____________________________________________________________________________________
CS 51135/2018
Asim Ali Vs. Mohd. Asif & Anr.
Page no. 1 of 14
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT:-
By this judgment I shall dispose of a suit for permanent and mandatory injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
PLEADINGS OF THE PLAINTIFF :-
1. The plaintiff is a permanent resident of H.No.13/9, Labour Colony, Hathras, UP and executed a special power of attorney in favour of Sh. M.A. Saad. The block where the plaintiff is residing is called Gulshan-E-Azad Society, G-53, Shaheen Bagh, Jamia Nagar, New Delhi having four flats i.e. flat no.33, 34, 35 and 36. The plaintiff is residing at first floor i.e. flat no.34 and defendants are residing at ground floor at flat no.33 i.e. just under the flat of the plaintiff. The suit property is flat no.33 & 34 collectively. These flats were build by Gulshan-E-Azad society in the year 1992 and the structure of the building is wall bearing structure.
2. It is alleged that, in the last week of April 2014, the defendants started construction work in their flat. The plaintiff approached the defendants and inquired as to what was transpiring. The defendants told the plaintiff that minor work of changing tiles is going on. On 01.05.2014, the plaintiff saw cracks in the walls, floor, toilet of his flat and also felt that the doors and windows became loose.
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Page no. 2 of 14
3. The plaintiff again approached the defendants and saw that renovation/construction work was being carried on by the defendants. He saw that the entire structure was changed by the defendants. It is alleged that the defendants removed many walls, cut the lintel beams, cut the doors beams and removed the fitted windows. It is further alleged that the act of removal of lintel beams and the walls resulted is tempering with structural safety.
4. The plaintiff immediately urged the defendants to stop the work but the latter went ahead with the same. It is averred that the defendants have changed the actual structure and modified the ground floor due to which a great damage has been caused to the flat of the plaintiff and the same has compromised the safety of plaintiff and his family.
5. The plaintiff filed a written complaint to the SHO PS- Jamia Nagar, New Delhi on 03.05.2014 regarding the alleged illegal construction raised by the defendants. After filing of the complaint, the police had stopped the construction work carried on by the defendants. However, despite that, the defendants made several secret attempts to continue with the same. It is further alleged that after some time the defendants removed all the doors and windows and cut the lintel beams which were over the doors and windows, due to which, many cracks emerged in the Floor, Almirah, Walls and Roof of the flat of the plaintiff and the structure became very dangerous to the plaintiff and his family. In this regard plaintiff also filed a complaint before MCD, _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 3 of 14 Central Zone, Lajpat Nagar, New Delhi and copy of the same was also sent to other officials on 12.06.2014. The plaintiff also filed another complaint at PS-Jamia Nagar, New Delhi on 30.6.2014. The plaintiff requested the defendants many times to restore the building but his requests did not yield any result. The plaintiff filed many complaints dated 04.07.2014, 16.07.2014, 18.08.2014, 22.08.2014, 24.02.2015 and 27.03.2015 against the defendants before various authorities regarding the alleged illegal construction however no action was taken against the defendants.
6. It is alleged that the defendants have changed the entire structure and modified the ground floor and have weakened the building. The plaintiff engaged the services of a civil engineer Sh. Shamshul Haq Ansari of RISO Services for repair work of his flat which was allegedly damaged due to the construction raised by the defendants. The said civil engineer gave an estimate of Rs.2,76,000/- for the repair work of the flat of the plaintiff. It is claimed that the defendants are liable to pay compensation of Rs.2,76,000/- to the plaintiff for the aforesaid repair.
7. Therefore, the present suit has been filed by the plaintiff seeking the relief of permanent injunction thereby restraining the defendants from raising construction in flat no.33, of the suit property. The plaintiff has also sought relief of mandatory injunction thereby directing the defendants to restore the flat no.33 of the plaintiff to its previous position. A money decree for a sum of Rs.2,76,000/- for damages caused by the defendants to the flat of the plaintiff has also _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 4 of 14 been sought against the defendants.
PLEADINGS OF DEFENDANTS
8. Subsequently, the WS was filed by the defendant no.1 in which some preliminary objections were taken namely, the plaintiff has no right to file the preset suit as he is not lawful owner of the property in question i.e. flat no.34, the suit has been filed without any cause of action and the plaintiff has been carrying minor internal renovation work in his flat no.33, Gulshan-E-Azad Society, G-53, Shaheen Bagh, Jamia Nagar, New Delhi. It is averred that the plaintiff has not made any structural change in his flat as has only renovated the kitchen, bathroom and has changed wall and floor tiles.
9. It is alleged that the plaintiff has put iron girders in the walls of the defendant's flat without the latter's permission to construct balcony. It is further alleged that, the plaintiff has caused damage to the flat of the defendant and he has not come to the court with clean hands and has suppressed material facts.
10. In reply on merits the defendant no.1 has denied all the averments made in the plaint as false and frivolous. As stated above, the defendant averred that he started minor construction work in his flat and has not removed any beams and has not compromised the safety of the building. The MCD, Police Authorities and Other Authorities did not take any action on the complaints of the plaintiff as defendant had not raised any unauthorized construction. It is prayed that the suit be dismissed with costs.
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Page no. 5 of 14
11. It is pertinent to note here that defendant no.2 is the wife of the defendant no.1. There is nothing on record to show that the summons of the present suit were served upon her. She never participated in the trial of the present case, neither did she file any WS. The plaintiff never pressed upon the service of defendant no.2 as such no findings in the suit is given against defendant no.2. As such, it is deemed that the plaintiff has abandoned his claim against defendant no.2. Thus no finding in the suit is given qua defendant no.2.
ISSUES
12. After the completion of pleadings, following issues were framed on 07.01.2016:-
1. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? (OPP)
2. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? (OPP)
3. Whether the plaintiff is entitled to a decree of recovery of Rs.2,50,000/- as prayed for? (OPP)
4. Relief.
PLAINTIFF'S EVIDENCE
13. In support of his case, plaintiff has examined Sh. M.A. Saad (Power of Attorney holder) as PW1. PW-1 has led his evidence by way of affidavit wherein he reiterated the contents of the plaint on oath. PW-1 replied upon the following documents:
1. Power of Attorney by the plaintiff in favour of Sh. M.A. _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 6 of 14 Khan as Ex.PW1/A;
2. Site plan as Ex. PW1/B;
3. Photographs of the property as Ex.PW1/C;
4. Complaint dated 03.05.2214 as Ex.PW1/D;
5. Complaint dated 12.06.2014 as Ex.PW1/E;
6. Complaint dated 30.06.2014 as Ex. PW1/F;
7. Complaint dated 04.07.2014 as Ex.PW1/G;
8. Complaint dated 16.07.2014 as Ex.PW1/H;
9. Complaint dated 18.08.2014 as Ex.PW1/I;
10. Complaint dated 22.08.2014 as Ex.PW1/J;
11. Complaint dated 25.02.2015 as Ex.PW1/K;
12. Complaint dated 27.03.2015 as Ex.PW1/L;
13. Complaint dated 12.04.2015 as Ex.PW1/M;
14. The RISO service report as Ex.PW1/N;
15. Copy of ID proof and driving licence of deponent as Ex.PR1/O and Ex.PW1/P.
14. PW-1 was cross-examined by the Ld. Counsel for the defendant. In his cross-examination the witness admitted that iron girders were put in the walls of the flat of the defendant. He further deposed that the same were not inserted by him or the plaintiff. He admitted that the SDM did not take any action on his complaint Ex.PW1/E.
15. The plaintiff also examined Mohd. Akhlaq S/o Sh. Mohd. Sultan as PW-2. He deposed on the lines of PW-1. He was cross- examined by the Ld. Counsel for the defendant.
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Page no. 7 of 14 DEFENDANT'S EVIDENCE
16. In his defence, the defendant no.1 has examined himself as DW1, and deposed in consonance with the contents of his written statement. He has relied upon the following documents:
1. Photograph dated 23.05.2015 showing the damage to the flat of the defendant as Ex. DW1/1 (Colly.);
2. Photograph dated 23.05.2015 showing damage of external flat of the defendant as Ex.DW1/2 (Colly.)
17. DW-1 was cross-examined by the Ld. Counsel for the plaintiff. In his cross-examination he admitted that the renovation work was done on his instructions.
18. Final arguments have been heard on behalf of both the parties and the pleadings as well as evidence and all the annexed & exhibited documents and record carefully perused and all the issues are decided as follows:-
ISSUE WISE FINDINGS Issue No.1 & 2
19. So far as issues no.1 & 2 are concerned, these issues are being decided together as these issues involve common and inter connected questions of fact and law. The onus to prove both the issues was upon the plaintiff. In order to determine as to whether the plaintiff is entitled for decree of permanent and mandatory injunction in his favour, the first thing that this court needs to decide is whether the _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 8 of 14 defendant has actually raised any illegal construction in his part of the suit property i.e. Flat No.33, Gulshan-E-Azad Society, G-53, Shaheen Bagh, Jamia Nagar, New Delhi which has jeopardize the safety of the building or on the contrary, the construction/changes done by the defendant is only minor renovation in the suit property which is not dangerous to the safety of the building. The plaintiff has alleged that the defendants have removed many walls, cut the lintel beams, cut the doors beams and also removed the fitted windows and removed the walls of the bathroom which has resulted in weakening the load bearing capacity of the building and perilled the safety of the plaintiff and also the defendant.
20. To support his allegations the plaintiff has placed on record photographs Ex.PW1/C (Colly.). The plaintiff has not examined any Architect, Civil Engineer, MCD Official or any other expert to prove that the construction raised by the defendants is a major one which has weakened the whole structure of the building. Though, the defendant has admitted that he has raised the construction in his flat, it is claimed that nature of the construction is that of a minor renovation whereby water pipes or tiles of the bathroom were changed and a small toilet wall was removed. It is contended on behalf of defendant that he has not done anything which could affect the safety of whole structure.
21. As discussed earlier, the plaintiff has only placed on record certain photographs to prove the alleged illegal construction and he has not examined any expert for the same. First of all it is pertinent to note that the photographs are not sufficient to prove or decide as to _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 9 of 14 whether the construction being raised by the defendant is harmful for safety of the structure. Further the photographs Ex.PW1/C (Colly.) are taken in such a way that it could not be said with certainty as to which part of the suit property they have captured. Moreover, it cannot even be ascertained by seeing the said photographs that the same belong to the suit property. Thus the photographs placed on record by the plaintiff are not sufficient to prove that any structural changes are made by defendant in the suit property which has resulted is weakening its capacity to bear load. The plaintiff has even failed to show as to what kind of construction work was done by the defendant.
22. Another important piece of evidence that is available in the file is the report of Local Commissioner Sh. N.K. Srivastava, advocate, which was filed in the court pursuant to order of Ld. Predecessor of the court dated 01.06.2015 whereby the Local Commissioner was appointed for inspection of the case property. Here, it may not be out of place to mention that the Local Commissioner was not examined in the court. However as per order 26 Rule 10(2) CPC a Local Commissioner is not required to be examined in court and his report is admissible per se without examination in the court. Same was also held by Hon'ble High Court of Delhi in case of Harbhajan Singh Vs. Shakuntala Devi & Anr. AIR 1976 Del 175.
23. In the present case the inspection was conducted by the Local Commissioner in the presence of both the parties. The report was also filed in the presence of both the parties and no objection was filed by either of them. Thus, as such, the report may be read in evidence _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 10 of 14 and the same may throw light on the nature of construction allegedly raised by the defendant. The report of Local Commissioner nowhere states that any material construction, which is harmful to the safety of the structure of the suit property, has been raised by the defendant. The report specifically mentioned at various places that there are no cracks on the walls or the roof of the suit property. From the perusal of the report of Local Commissioner this court can make out that the defendant has not carried out any material construction which can be perilous to the safety of the building. This conclusion of the court is also supported with the fact that though the plaintiff lodged complaints before the police authorities, SDMC and LG, none of the aforesaid authorities including SDMC took any action against the defendant. The plaintiff has admitted that the SDMC did not take any action against the defendant for raising the alleged construction. This is suggestive of the fact that the defendant was not raising any unauthorized construction. Thus the report of the Local Commissioner makes it clear that the defendant has not raised any unauthorized/illegal construction in the suit property.
24. Another important aspect of the report of the Local Commissioner is that there is a mention of iron girders being installed just below the ceiling of the defendant's flat which were protruding out of the walls of his flat. The plaintiff has not mentioned about the same in his plaint. This fact was introduced in this suit only on filing of WS by defendant no.1 wherein it was alleged by the defendant that the said iron girders were inserted by the plaintiff in the defendant's flat only to unauthorizedly construct a balcony. The defendant further alleged that _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 11 of 14 the plaintiff has suppressed this material facts from this Court.
25. The presence of the said iron girders in the defendant's part of the suit property has been admitted by the plaintiff in his cross- examination. The plaintiff has further admitted that the said iron girders were not installed by the defendant. Since the plaintiff has admitted that the defendant has not installed the said iron girders in his part of the suit property, there is a strong possibility that the plaintiff has installed the same because apart from the defendant only plaintiff's property lies in the said building. When it is admitted by the plaintiff that the defendants have not installed the said iron girders, it is only the plaintiff who would do the same. Thus the conduct of the plaintiff in not disclosing about the existence of the said iron girders is questionable. In the opinion of this Court the plaintiff has suppressed this material fact in his plaint. This also shows that the plaintiff has not approached the court with clean hands. Section 41 (i) of Specific Relief Act, 1963 provides that an injunction cannot be granted when the conduct of the plaintiff or his agent has been such as to dis-entitle him to the assistance of the court. In the case of "Basheshar Nath Vs. Municipal Committee Moga" (AIR 1940 Lah 69) Hon'ble Court held that Section 14(i) (new) rests on the maxim that he who seeks equity must do equity and implies that a plaintiff seeking an injunction must come with clean hands. A plaintiff, who asks for an injunction, must be able to satisfy the court that his own acts and dealings in the matter have been fair and honest and free from any taint of fraud or illegality, and that if, in his dealings with the person against whom he seeks relief or with third parties, he has acted in an unfair or inequitable manner, _____________________________________________________________________________________ CS 51135/2018 Asim Ali Vs. Mohd. Asif & Anr.
Page no. 12 of 14 he cannot have relief. It is open to the court to refuse injunction where the state of thing complained of is the outcome of the plaintiff's own conduct and where he does not satisfy the court that his own acts and dealings in the matter have been fair and honest.
26. The plaintiff's conduct in the present suit cannot be said to be aboveboard. First of all, the plaintiff did not disclose about the existence of the said iron girders and secondly there is a strong possibility that he himself had installed the same in the property of the defendant.
27. In view of the above discussion and considering the fact that the plaintiff has not filed sufficient evidence to show that the defendant has raised any unauthorized/illegal construction and that the plaintiff's conduct is questionable, the plaintiff is not entitled to the decree of permanent and mandatory injunction. Accordingly both issue no.1 & 2 are decided against the plaintiff and in favour of the defendant.
Issue No.3.
28. Onus to prove issue no.3 was upon the plaintiff. As the plaintiff has failed to prove that defendant has raised any illegal or unauthorized construction and that damage to his flat was caused by the defendant, the plaintiff cannot be said to be entitled for any amount for damage caused to his flat. Accordingly this issue also decided in favour of defendant and against the plaintiff.
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Page no. 13 of 14 RELIEF
29. In view of my findings on issues, suit of the plaintiff is hereby disposed of as dismissed. No order as to cost. Applications, if any, which are pending in the present judicial file and have not been pressed for by the parties are also disposed of as dismissed as not pressed.
30. Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
DEEPAK Digitally signed by
DEEPAK VATS
Announced in open Court
on 30th May, 2022
VATS
(Deepak Vats)
Date: 2022.05.30
18:53:56 +0530
ACJ-cum-CCJ-cum-ARC (South - East)
Saket Courts, New Delhi
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Page no. 14 of 14