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Delhi District Court

Jscc/Ascj/Guardian Judge (East) Kkd ... vs Rajeev Anand on 4 June, 2013

                                    1

                  IN THE COURT OF SH. JAGDISH KUMAR 
    JSCC/ASCJ/GUARDIAN JUDGE (East) KKD COURTS DELHI



Suit no. 452/08


Unique Case ID No. 02402C0194232008


1      Surender Jain
       S/o Sh. Rameshwer Dass Jain
       Shop nos. 9 & 10, Ground floor
       IX/4059, Shanti Mohalla, Gali no. 17
       Gandhi Nagar, Vill. Ghondli,
       Shahdara, Delhi­31.

2      Smt. Kailasho Devi
       W/o Sh. S. S. Jain
       R/o IX/6531, Subhash Mohalla
       Gandhi Nagar, Delhi­31.

3      Satvir Singh Jain 
       S/o Sh. Rameshwar Dass Jain
       R/o IX/5885, Subhash Mohalla
       Gandhi Nagar, Delhi­31.                     ... Plaintiff

                                  Vs.

1      Rajeev Anand
       S/o Sh. Om Parkash Anand

Suit no. 452/08                                               1/17
                                       2

       R/o B­486, Chitrakut Enclave
       Loni Road, Shahdara
       Delhi.

Also At:


       First Floor
       IX/4059, Shanti Mohall, Gali no. 17
       Gandhi Nagar, Vill. Ghondli,
       Shahdara, Delhi­31.

2      Praveen Goyal
       S/o Sh. Babu Lal
       G­36, Naraina Vihar
       New Delhi.

Also At:­


       First Floor
       IX/4059, Shanti Mohalla, Gali no. 17
       Gandhi Nagar, Vill. Ghondli,
       Shahdara, Delhi­31.

3      Municipal Corporation of Delhi
       Through Commissioner
       Shahdara (South Zone)
       Delhi­92.

4      Dy. Commissioner of Police


Suit no. 452/08                               2/17
                                           3

       East District
       Shalimar Park, Shahadra
       Delhi­32.

5      SHO
       P. S. Krishna Nagar,
       Krishna Nagar, Shahdara
       Delhi­92.

       Date of institution of  Suit             :      10.03.2008
       Date of Arguments                        :      04.06.2013
       Date of decision                         :      04.06.2013

      SUIT FOR PERMANENT /MANDATORY INJUNCTION AND 
                                DECLARATION


JUDGMENT

1 The present suit has been filed by the plaintiffs for permanent/mandatory injunction and declaration against the defendants. The facts stated in the plaint are that the plaintiffs have purchased the shops in property bearing no. IX/4059, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31 (hereinafter called the said property). The plaintiff no. 1 is the owner of the shops bearing no. 9­10 at ground floor. The plaintiff no. 2 is the Suit no. 452/08 3/17 4 owner of shop no. 8 at ground floor and plaintiff no. 3 is the owner of shop no. 2 at ground floor. The plaintiffs stated that they have purchased their shops in the year 1992­94 with right to use common gallery (side walls common) and since then they are in possession and occupation of their respective shops. The plaintiffs stated that there is only one toilet room provided on the first floor of the property bearing no. IX/4059, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31. Which is being used by all the occupants jointly from the beginning. The defendant no. 1 and 2 have purchaed the shop on the first floor of property no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Village, Ghondli, Shahdara, Delhi­31. The plaintiffs alleged that defendant no. 1 and 2 in connivance with each other and without caring for the interest of the other shops owners started raising further construction of shops at the second floor, in the month of January, 2008. They have not got any sanction or approval from the appropriate authority i.e. MCD. The defendant no. 1 and 2 have started loading the construction materials over the second floor to construct several shops without considering the old and weak construction of the building. Since the basement and ground floor of the building are very old construction, several occupants/shop owners Suit no. 452/08 4/17 5 including plaintiffs, have approached the defendant no. 1 and 2 and tried their best to make them understand not to raise any construction on second floor. The construction may cause collapse of the entire building, but the defendant no. 1 and 2 did not hear at all and continued the illegal construction over the second floor. The plaintiffs further stated that the construction over the second floor may obstruct their air and sun light to their properties. The plaintiffs stated that the defendant no. 1 and 2 have threatened them, if they interfere in their work of construction they can manage every thing and go up to any extent to construct the shops on second floor.

2 The plaintiffs further alleged that the defendant no. 1 and 2 have forcibly locked the toilet which is meant for all the occupants over the first floor. All the occupants of the shops have been illegally prevented from using the common toilet which is the only toilet provided in the property no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31. The plaintiffs further stated that on 16­17.01.2008, they have approached the defendant no. 3, 4 and 5 and requested them to get stop the illegal construction over the second floor of property no. IX/4058­59, Shanti Mohalla, Gali no. Suit no. 452/08 5/17 6 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31. The plaintiffs stated that due to interference of local body the defendant no. 1 and 2 have stopped the said illegal construction. The plaintiffs further stated that since last two days the defendant no. 1 and 2 have restarted the illegal construction. The plaintiffs alleged that the defendant no. 1 and 2 have successfully managed the local authority and have restarted the illegal construction. The plaintiffs alleged that the illegal construction over the second floor area of the said property will certainly cause to collapse the building being old and weak which will affect their valuable life. On these grounds the plaintiff has prayed for permanent injunction thereby restraining the defendant no. 1 and 2 from raising illegal construction. The plaintiffs further prayed for permanent injunction against defendant no. 1 and 2 thereby restraining them from locking the common toilet provided on the first floor. It is further prayed that the defendant no. 3 to 5 may be directed to inquire into the matter and take appropriate/panel action against the defendant no. 2 for violation of building bye­laws of Delhi as per MCD. It is also prayed that second floor area of the property property no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31, more specifically shown in red colour in the site Suit no. 452/08 6/17 7 plan, may be declared as encroachment free area. 3 Summons of the suit were served upon the defendants. The defendant no. 1 and 2 filed their joint WS. The defendant no. 1 and 2 have stated in their WS that they are not raising any illegal or unauthorized construction. They further stated that they are owners of the entire first floor except three shops with roof rights. The defendant no. 1 and 2 further stated that the toilet at first floor is meant only for occupants of first floor and at no point of time the same was used by the occupants of the ground floor. They further stated that there is toilet on the second floor which is being allowed by the answering defendants, to be used by the occupants of basement and ground floor. The defendant no. 1 and 2 further stated that they have kept the toilet on the first floor under lock and key. The defendant no. 1 and 2 contented that the construction of the basement and ground floor are old one but to their knowledge the foundation is sound and strengthful. The defendant no. 1 and 2 stated that in order to protect the roof from seepage they have laid tiles and further stated that they have not raised any illegal or unauthorized construction. The defendant no. 1 and 2 further stated that they are owner of the first floor and they have Suit no. 452/08 7/17 8 every right to raise the construction. The other occupants of the building have no right to object the construction. The defendant no. 1 and 2 have denied all other allegations levelled against them by the plaintiffs. They have prayed for dismissal of the suit. 4 The defendant no. 3 has filed the WS. In WS the defendant no. 3 have stated that the property no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31 was inspected by the department. It was found that property is very old and occupied consisting basement, ground floor and first floor. The property is approximately 25 years old. However the owner of the property had tried to raise unauthorized construction on the second floor but same was demolished at the initial stage. On these grounds defendant no. 3 sought dismissal of the suit.

5 The defendant no. 4 and 5 also filed their WS. The defendant no. 4 and 5 have stated that the suit of the plaintiffs is not maintainable as it is not disclosing any cause of action against defendant no. 4 and 5. The defendant no. 4 and 5 have stated in their WS that on 16.01.08 the written complaint was received in the office of Suit no. 452/08 8/17 9 defendant no. 4 from the shopkeepers of Main Market Shanti Mohalla, Jain Cloth Market, Gandhi Nagar, Delhi. This complaint was against unauthorized construction being carried out at property no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31. A similar complaint was also received from Sh. Surinder Kumar Jain of Sharuti Textile situated at 4058­59, Ground Floor, Main Road, Shanti Mohall, Gandhi Nagar, Delhi. The site was inspected by ASI Bhagwat Singh and it was transpired that new construction was in progress over the property no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31. Accordingly the intimation was given to MCD vide diary no. 09 on 16.01.08 for taking appropriate action as per law. The defendant no. 4 and 5 stated that it is MCD who has to verify the status of construction work and accordingly to take action, if construction work is found to be illegal and unauthorized. The answering defendants are providing police assistance to the MCD for carrying out demolition of unauthorized construction, if the request is made to them in writing, in order to maintain law and order situation. The defendant no. 4 and 5 prayed for dismissal of the suit.

Suit no. 452/08 9/17 10 6 Replication to the WS of defendants filed by the plaintiffs in which the plaintiffs have denied the statement made by the defendants. The plaintiffs have reiterated and reaffirmed the statement as made in the plaint.

7 On the pleadings of the parties following issues were framed as under:­

1. Whether the plaintiff is entitled to the relief of permanent injunction? OPP.

2. Whether the plaintiff is entitled to the relief of mandatory injunction? OPP.

3. Whether the plaintiff is entitled to the relief of declaration? OPP

4. Whether the present suit is barred U/O.27 R.5 CPC. OPD.

5. Relief.

8 In PE plaintiff examined plaintiff no. 1 as PW1 and relied upon the documents Ex.PW1/1 to Ex.PW1/29 and the plaintiff no. 3 Sh. Satvir Singh Jain as PW2 and relied upon the documents as relied by PW1.

Suit no. 452/08 10/17 11

The defendant no. 1 and 2 were proceeded ex­parte on 16.10.10.

MCD opted not to lead any evidence. The DE on behalf of MCD was closed on statement of Ld. Counsel for MCD.

In DE defendant no. 4 and 5 examined Sh. A. K. Singh SHO PS Krishna Nagar and relied upon the document Ex.DW1/1 and DW1/3.

9 I have heard the Ld. Counsel for plaintiffs and counsel for defendant no. 3, 4 and 5. The defendant no. 1 and 2 are heard in ex­ parte. I have also gone through the record of the case carefully. My issue wise findings is as under:­ ISSUE NO. 1 Whether the plaintiff is entitled to the relief of permanent injunction? OPP.

The onus to prove this issue is on plaintiffs. The plaintiffs have deposed in their­examination­in­chief that defendant no. 1 and 2 have started to construct illegal construction over the second floor of Suit no. 452/08 11/17 12 the property bearing no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31. The MCD has already admitted the same fact in its WS. The defendant no. 4 and 5 already admitted in their WS that they have received a complaint from a person Surinder Kumar Jain as well as other shopkeepers on 16.01.08. The MCD has also stated in its WS that they have stopped the illegal construction and demolished the same. The plaintiffs have categorically stated in the plaint as well as deposed in their evidence that the building is old one and illegal construction over the second floor may endanger the structure of the said property IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31. The plaintiffs have also categorically deposed in their examination­in­chief that they are the shopkeepers/occupiers of shop no. 9 and 10 and shop no. 8 and G­2 on ground floor in their respective names and running their business from there. So, I am of the considered view that the plaintiff have a case in their favour. So, the defendant no. 1 and 2 are permanently restrained from raising any illegal construction over the second floor of property no. IX/4058­59, Shanti Mohalla, Gali no. 17, Gandhi Nagar, Vill. Ghondli, Shahdara, Delhi­31 more specifically shown in red in the site plan, without Suit no. 452/08 12/17 13 following the due process of law.

The second relief in the form of permanent injunction, as sought by the plaintiff, is that the defendant no. 1 and 2 be restrained permanently from locking the common toilet provided on the first floor more specifically shown in green in the site plan. In the plaint, the plaintiffs themselves have stated that defendant no. 1 and 2 have forcibly locked the toilet at first floor which is meant for all the occupants. The toilet is shown in green colour in the document Ex.PW1/1. Since the plaintiffs have themselves stated in their plaint that the toilet has already been locked, then the relief sought by the plaintiffs for permanent injunction can not be granted because this relief has already been become infructuous. No such relief in the mandatory form has been sought by the plaintiffs. The plaint has not been amended by them. It is well settled law that a relief can not be granted, which is not claimed by the parties and not founded on facts of the case. So, I am not inclined to grant this relief which has not been sought by the plaintiffs. So, the issue no. 1 is decided accordingly.

ISSUE NO. 2 Suit no. 452/08 13/17 14

Whether the plaintiff is entitled to the relief of mandatory injunction? OPP.

The onus to prove this issue is on the plaintiff. Through the present relief the plaintiff has sought the initiation of inquiry against the defendant no. 3 to 5. I have perused the file. The document Ex.DW1/3 shows that concerned police official has intimated the MCD about illegal construction. The photographs Ex.PW1/10, Ex.PW1/15 and Ex.PW1/16 shows that demolition action has been taken by the MCD. The witness PW1 has also stated in his cross­examination that he has no knowledge whether MCD has demolished the construction. The PW1 has already admitted in his cross­examination that no other construction has been done except shown in document Ex.PW1/10. The PW2 deposed in his cross­examination that he has never visited the second floor of the suit property. The PW2 has also admitted in his cross­examination that police officials have got stopped the construction at the suit property. So, I am of the view that no mandatory injunction is required to be issued against the defendant no. 3 to 5 for initiating any inquiry as they have took steps to get stop the illegal construction and also demolished the illegal Suit no. 452/08 14/17 15 construction to some extent and thereafter there is no new construction carried out at suit property. The issue no. 2 is disposed of accordingly.

ISSUE NO. 3

Whether the plaintiff is entitled to the relief of declaration. The onus to prove this issue is on the plaintiffs. Vide present issue plaintiffs are seeking the relief that the second floor of the said property be declared as encroachment free area. Neither the plaintiffs nor the defendants have argued this issue. But it seems that plaintiffs have sought the relief through present issue that the owner of the second floor have not to construct any construction over the second floor and second floor be declared as construction free/encroachment free area. To this, in Delhi the construction is allowed to be constructed up to a specific height. The properties are being sold floor wise. The plaintiffs have not shown any document which proves that they have any right in the second floor of the said property. So, this declaration can not be granted as the owner of the second floor have right to construct over the second floor after Suit no. 452/08 15/17 16 following the due process of law. So, this issue is decided in favour of defendant no. 1 and 2 and against the plaintiffs. ISSUE NO. 4

Whether the present suit is barred U/O.27 R.5 CPC. OPD. The onus to prove this issue is on the defendant no. 4 and

5. The defendant 4 and 5 has not led any evidence on this issue. Nor the counsel for defendant no. 4 and 5 has argued this issue. Even from the perusal of record it reveals that sufficient time was given to the defendant no. 4 and 5 to answer the suit of the plaintiff. The issue is decided in favour of plaintiff and against the defendant no. 4 and 5. RELIEF In view of discussion above the suit of the plaintiffs is partly decreed. The defendant no. 1 and 2 are restrained to construct any construction at the roof of the first floor as shown in site plan in Ex.PW1/1 except due process of law. Other relief claimed by the plaintiffs are dismissed. Decree sheet be prepared accordingly. Proportionate cost of the suit is granted to the plaintiffs. Suit no. 452/08 16/17 17

File be consigned to Record. 

(Announced in open Court                                 (JAGDISH KUMAR)
today i.e 04.06.2013)                                     JSCC/ASCJ/GJ(East)
                                                           KKD COURT/DELHI




Suit no. 452/08                                                         17/17
                                         18




                                                            Suit no.452/08
04.06.2013

Present:      Counsel for plaintiffs.

              Defendant no. 1 and 2 ex­parte.

              ALO for defendant no. 3.

              Counsel for defendant no. 4 and 5.

DW1 cross­examined and discharged. DE is closed by separate statement. Final arguments heard.

Put up at 4.00 p.m. for order.

(Jagdish Kumar) JSCC/ASCJ/G. Judge (East) 04.06.2013 At 4.00 p.m. Present: Proxy counsel for plaintiffs.

Defendant no. 1 and 2 ex­parte.

ALO for defendant no. 3.

Proxy counsel for defendant no. 4 and 5.

Suit no. 452/08 18/17 19 Vide separate judgment the suit of the plaintiff is partly decreed. The defendant no. 1 and 2 are restrained to construct any construction at the roof of the first floor as shown in site plan in Ex.PW1/1 except due process of law. Other relief claimed by the plaintiffs are dismissed. Decree sheet be prepared accordingly. Proportionate cost of the suit is granted to the plaintiffs.

File be consigned to Record.

(Jagdish Kumar) JSCC/ASCJ/G. Judge (East) 04.06.2013 Suit no. 452/08 19/17