Delhi District Court
Raisul Haque S/O Shujaul Haque vs Taj S/O Sh. Mirazuddin on 3 May, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 19/2011
IN THE MATTER OF:
Raisul Haque S/o Shujaul Haque
nd
R/o 711, Ist and 2 Floor, Haveli Azam Khan
Chitli Qabar, Delhi110006 ....... Plaintiff
Versus
Taj S/o Sh. Mirazuddin
R/o 712, Ground Floor, Haveli Azam Khan,
Chitli Qabar Jama Masjid, Delhi06 .......... Defendant
Date of Institution: 05.02.11
Date of Reserving for Judgment: 04.04.13
Date of Judgment : 03.05.13
SUIT FOR PERMANENT & MANDATORY INJUNCTION
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for permanent & mandatory injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that Plaintiff is the lawful occupant being tenant of the Slum & JJ Department now know as Delhi Urban Shelter Improvement Board from last 40 years and earlier the mother of the plaintiff was the tenant but now Suit No. 19/2011 Page No. 1 of 13 as she has expired the plaintiff became the tenant of first floor and nd second floor of the property No. 711 Ist floor and 2 floor, haveli Azam Khan, Chitli Qabar, Delhi06. It is further submitted that he defendant is residing in neighbiour in the house No. 712, ground floor Haveli Azam Khan, Jama Masjid, Delhi06 who is the illegal occupant in the property and his terrace/roof is adjacent to the floor of the plaintiff's room and one cemented Jaali which was opened in the property from last 40 years and was the only source of plaintiff' light and air specially in summer it was a ventilation of the plaintiff's property. It is further submitted that on 04012011 closed the said Jaali and later on broken a whole in part of Jaali and plaintiff who is an old man of about 66 years age complained the matter at 100 at about 7.00 PM . The same day and police officials came and called both the parties and asked the plaintiff to write an application which plaintiff lodged on 05012011 vide DD No. 27 B, and police officials asked the defendant to repair the whole and open the remaining portion of Jaali/window after promising to do the same returned back and id not abide by the direction. It is further submitted that on 11012011 the plaintiff again made a complaint to the police official and also called the defendant in religious Madarsa wherein also the builders of the locality came and openly said that they will make illegal Suit No. 19/2011 Page No. 2 of 13 construction in the property in the form on constructing 2 flats at first and second floor and one flat would be of builders and one of the defendant. It is further submitted that defendant has no right o make illegal construction and plaintiff has every right to restrain the defendant from making illegal construction. It is further submitted that in case the defendant succeeds in his illegal design than the plaintiff suffer irreparable loss and injury which cannot be compensated, hence the present suit is filed.
3. In his written statement the defendant has contended that the suit of the plaintiff is false, frivolous, vexatious and misconceived and is not maintainable. It is submitted by the defendant that photo copy of the deposit receipts filed by the plaintiff clearly shows that damages has been claimed by the Municipal Corporation of Delhi from the plaintiff and not rent which shows that the plaintiff is occupying some portion of the property as unauthorized occupant because the damages are claimed only from the unauthorized occupants and as such the allegations that the plaintiff is tenant is entire false and wrong. The defendant has further contended that the Jali which was in existence was closed by cement more than a decades ago, as the said Jali was source of nuisance to the defendant's family. As the ladies who used to sleep during the summer on the terrace were exposed and the defendant being Suit No. 19/2011 Page No. 3 of 13 muslim parda is observed in Muslim and when the said Jali was source of nuisance as the parda could not be maintained on account of the said Jali, the said Jali was closed more than one decades ago and since then the plaintiff is not getting and light and air through the said Jali which was closed more than a decades ago. It is further submitted that the plaintiff with ulterior motives made holes from the side of the plaintiff in the said Jali which was closed by putting the morter and cement decades ago to create a ground for filling the present suit and also to file false complaint before the police. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. From the pleadings of the parties, the following issues were framed vide order dated 22.03.2011:
i) Whether the plaintiff is entitled to a decree of mandatory Injunction as prayed ?OPP.
ii) Whether the plaintiff is entitled to a decree of permanent Injunction as prayed ?OPP.
iii) Relief
5. To prove his case plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. P1. The PW1 has reiterated the facts mentioned in the plaint and also relied upon the Suit No. 19/2011 Page No. 4 of 13 document which are as under:
i) The copy of Allotment slip is Ex. PW1/1.
ii) Photographs are Mark A & B.
iii) Site plan is Ex. PW1/2.
iv) Complaint dt. 05012011 is Mark C. The PW1 was also crossexamined by the Ld. counsel for the defendant.
6. Further the plaintiff has examined Sh. Subhash Constable, P.S. Jama Masjid, Delhi who has brought the registrar containing DD No. 27 dt. 05012011 is PW2/1 and copy of the complaint Ex. PW2/2.
7. On the other hand the defendant has examined himself as DW1. Who has filed his evidence by way of affidavit Ex. DW1/A. In his affidavit the DW1 has reiterated the facts mentioned in the written statement. The DW1 was also crossexamined by the Ld. counsel for the plaintiff.
8. I have heard the counsel for both the parties and have gone through the record carefully.
9. My issue wise finding is as under:
10. Issue No. 1 Whether the plaintiff is entitled to a decree of mandatory Injunction as prayed ?OPP.
The plaintiff is seeking relief of mandatory injunction directing the Suit No. 19/2011 Page No. 5 of 13 defendant to open jaali like window in its original position as shown at point A in the site plan.
11.The case of the plaintiff is that the plaintiff is the tenant in the first and second floor of the property bearing no. 711, Bazar Chitli Qabar, Jama Masjid, Delhi110006. To prove the same the plaintiff has filed a payment receipt dated 18/10/2010, Ex PW1/1 according to which plaintiff paid provisional damages to the MCD, Slum & JJ Dept. Clearly, the plaintiff is not a tenant in the said property as damages are claimed from unouthorised occupant. Thus, the plaintiff has not come to the court with clean hands. It is no more res integra that if a party does not come to the court with clean hands then it is not entitled to equitable relief of injunction.
12. In Seema Arshad Zaheer and others v. Municipal Corpn. of Greater Mumbai and others ((2006) 5 SCC 282), the Hon'blE Apex Court held :
"30. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff; (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiffs rights is compared with or weighed against the need for protection of the defendants rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the Suit No. 19/2011 Page No. 6 of 13 plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs' conduct is free from blame and he approaches the Court with clean hands."
(See also: AIR 2008 SUPREME COURT 2291 "Mandali Ranganna v. T. Ramachandra"; Transmission Corpn. of A. P. Ltd. v. Lanco Kondapalli Power (P) Ltd. ((2006) 1 SCC 540)
13.Thus, the maxim of clean hands must not be taken too widely. Equity does not demand that its suitors shall have led blameless lives. The maxim withholds assistance of Court where the wrongdoer is trying to enjoy the fruits of his own wrong. It is a self imposed ordinance that closes the door of a Court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief. A party who seeks equity must bring on record the entire facts of his case supported by documentary proof.
14.Also, as per the plaintiff, the defendant on 4/1/2011 closed the jali and later broke a whole in a part of the jaali which was open for past 40 years and was only source of plaintiff's light and air and especially in summer it was a ventilation for the plaintiff's property. The plaintiff made complaints on 4/1/2011 and 11/1/2011 to the police. In the copy of the complaint dated 4/1/2011 Ex. PW1/2 it is Suit No. 19/2011 Page No. 7 of 13 mentioned that for past 30 years the cement jali in the wall of the plaintiff is there for natural light and ventilation. It is also mentioned therein that the defendant hit a brick on the cement jali and broke the same and closed it with cement and badarpur and now there is hole in the jaali.
15.The plaintiff is claiming easementary rights over the suit property. An easement is a right which the owner or occupier of a certain land possess, as such for the beneficial enjoyment of that land to do something, or to prevent and continue to prevent something being done, in or upon or in respect of certain other land not his own.
16.An easement is a privilege, without which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason where of the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.
The following six characteristics are essential for an easement
(a) There must be a dominant and survient tenement
(b) An easement must accommodate the dominant tenement
(c) The rights of easement must be possessed for the beneficial enjoyment of the dominant tenement.
(d) Dominant and survient owners must be different persons. Suit No. 19/2011 Page No. 8 of 13
(e) The right should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, the servient tenement; and
(f) The something must be of a certain or well defined character and be capable of forming the subject matter of a grant.
17.The easement of light is a negative easement or a species of negative easement. The easement of light does not consist of a right to have a continuance of all the light which has previously come to the window of the dominant tenement. What the dominant owner is bound to show in order to maintain an action is that the interference is such an obstruction of light as to interfere with the ordinary occupations of life. In other words, the nature and extent of the right is to have that amount of light through the window of the dominant house which is sufficient, according to the ordinary notions of mankind, for the comfortable use and enjoyment of the house as a dwelling house, if it is a dwelling house, or for the beneficial use and occupation of the building if it is a warehouse, shop or other place of business. Access and use of air to and for any building may be acquired under the Indian Easements Act if it has been peaceably enjoyed without interruption for twenty years. The right to air is coextensive with the right light. The owner of house cannot by prescription claim to be entitled to the full and Suit No. 19/2011 Page No. 9 of 13 uninterrupted passage of a current of wind. He can claim no more air than which is sufficient for sanitary purposes. There is no right as a right to the uninterrupted flow of south breeze as such. There is no easement for free access of wind.
18.But the plaintiff herein has not proved that his property is a dominant tenement and that the said jaali is the only source of light and air to the plaintiff's property. Mere averments in this regard are not sufficient.
19.The case of the defendant is that the said jaali was closed about a decade back and the same was closed as it effected the privacy of the ladies in the house of the defendant who sleep at night on the roof of the property of the defendant. Further in his cross examination the plaintiff as PW1 deposed that the ladies in the house of the defendant sleep at night on the roof. Thus, clearly, the privacy of the defendant was under compromise. Although, during the crossexamination the defendant as DW1 deposed that his sisters live with him and one of them is bedridden and one stays at home and two are teachers in school and do not wear burqa when they go out but where chaddar. Thus, clearly, the ladies in the house of the defendant are pardanashin. In view of the foregoing discussion, the plaintiff has failed to prove his case and thus is not entitled to the relief of mandatory injunction. This Suit No. 19/2011 Page No. 10 of 13 issue is decided in favour of the defendant and against the plaintiff.
20. Issue No. 2 Whether the plaintiff is entitled to a decree of permanent Injunction as prayed ?OPP.
The plaintiff is seeking relief of permanent injunction restraining the defendant from making illegal construction in the suit property bearing shop no. 712, Bazar Chitli Qabar, Jama Masjid, Delhi 110006 illegally and without getting any plan sanctioned from the MCD.
21.The case of the plaintiff is that the plaintiff is the tenant in the first and second floor of the property bearing no. 711, Bazar Chitli Qabar, Jama Masjid, Delhi110006. To prove the same the plaintiff has filed a payment receipt dated 18/10/2010, Ex PW1/1 according to which plaintiff paid provisional damages to the MCD, Slum & JJ Dept. Clearly, the plaintiff is not a tenant in the said property as damages are claimed from unouthorised occupant. Thus, the plaintiff has not come to the court with clean hands. It is no more res integra that if a party does not come to the court with clean hands then it is not entitled to equitable relief of injunction.
22. In Seema Arshad Zaheer and others v. Municipal Corpn. of Greater Mumbai and others ((2006) 5 SCC 282), the Hon'blE Apex Court held :
"30. The discretion of the Court is exercised to Suit No. 19/2011 Page No. 11 of 13 grant a temporary injunction only when the following requirements are made out by the plaintiff; (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiffs rights is compared with or weighed against the need for protection of the defendants rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs' conduct is free from blame and he approaches the Court with clean hands."
(See also: AIR 2008 SUPREME COURT 2291 "Mandali Ranganna v. T. Ramachandra"; Transmission Corpn. of A. P. Ltd. v. Lanco Kondapalli Power (P) Ltd. ((2006) 1 SCC 540)
23.Thus, the maxim of clean hands must not be taken too widely. Equity does not demand that its suitors shall have led blameless lives. The maxim withholds assistance of Court where the wrongdoer is trying to enjoy the fruits of his own wrong. It is a self imposed ordinance that closes the door of a Court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief. A party who seeks equity must bring on record the entire facts of his case supported by documentary proof.
24.Also, nothing has been brought on record to show that the Suit No. 19/2011 Page No. 12 of 13 defendant is making any construction, whether legal or illegal. Also, the defendant is the owner of the property bearing no. 712, Bazar Chitli Qabar, Jama Masjid, Delhi110006 and has all the rights to construct his property as per building bye laws and sanctioned plan. Mere apprehensions of the plaintiff would not entitle him to the relief of injunction. Further, since the plaintiff himself is an unauthorised occupant as is evident from the document Ex. PW1/1, he has no right to claim any injunction against the defendant who is the owner of the said property. In view of the foregoing discussion, the plaintiff has failed to prove his case and thus is not entitled to the relief of permanent injunction. This issue is decided in favour of the defendant and against the plaintiff.
25.Relief:
In view of the foregoing discussion, the suit is hereby dismissed.
There are no orders as to costs.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 03052013. Civil Judge/Central05 Delhi Suit No. 19/2011 Page No. 13 of 13