Delhi District Court
Smt. Seeta Devi vs Sh. Arun Khanna on 23 December, 2008
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IN THE COURT OF Ms. SHELLY ARORA, CIVIL JUDGE,WEST-01
TIS HAZARI COURTS, DELHI
SUIT NO: 434/08
1. Smt. Seeta Devi
W/o Late Sh. M.C. Gulati
R/o Ground Floor, 8/1, Punjabi Bagh Extension, Delhi.
2. Smt. Satya Gupta
W/o Late Sh. A.K. Gupta
3. Smt. Monica Govil
W/o Sh. Manish Govil,
Both residence of
First Floor, 8/1, Punjabi Bagh Extension, Delhi.
...PLAINTIFFS
VERSUS
1. Sh. Arun Khanna
S/o Sh. H.L. Khanna,
R/o Second floor, 8/1, Punjabi Bagh Extension, Delhi.
And
First floor, 5/3, Punjabi Bagh Extension, Delhi.
2. SHO, Police Station Punjabi Bagh, Delhi.
...DEFENDANTS
ORDER
1. VidethisorderI shalldisposeoffan application Under Order XXXIX Rule1 and 2 r/wSection151 CPC and anotherapplication Under Order 1 rule10 r/wsection 151 CPC moved on behalfofdefendantto implead MCD as an additional party in the present matter.
2. Brief facts as averred in the plaint necessary to reproduce -2- herein for the disposal of this present application are :-
3. The plaintiff no.1,2 and 3 and defendants allare owners of different floorsin a simple propertybearingno.8/1,PunjabiBagh Extension, Delhi.
Plaintiff no.1 istheowner ofGround floor ofproperty.
Plaintiff no.2 and 3 areco-owneroffirst floor ofsaidproperty.
Defendantis the owner of second floor of the said property with roof rights.
4. Itisan admittedcase of theparties thatallcompositely had applied forregularisation ofwholeproperty as one unit.
Itisconcededthat some portion oftheconstruction on eachfloor was beyondcompoundable limits forthesaidpurposeand thuswas required tobe demolished toget regularisation oftheproperty done as perrulesofMCD. Also,defendant no.1 wantedtogetfurther construction done on terrace ofsecondfloor for IIIrd floor.
As perversion ofplaintiffs intheir plaint inits parano.4,thesaid extracoveragewas respectively removedas perrequirement by MCD and entire coveragewas alreadybroughtwithin permissible limit whichwas compounded.
5. The contention began when on 17.11.08 thedefendant no.1had allegedly threatened demolition of some portion of groundfloorof the property occupied by plaintiff no.1intheprocessdamagingsome portion of ground floorboundary wall.The contention, further arose when on 18.11.08, no.1allegedly defendant carried outdemolition ofportion ofroof of drawing and dining hall and projections in front of said drawing and -3- dining hallinabsenceofplaintiff no.2 and 3.A complaintinthepolice station was allegedly got lodged the same date.
6. Coming toversion putforth no.1,itisstated by defendant thathe has neverindulged incarrying outany damage totheproperty ofplaintiff no.1 , 2 and 3.The deconstruction, itisstatedhas been carried outby plaintiffs intheir respective portion intimewiththeswearinginofaffidavit withMCD whileapplying forregularisation.
Itis further the case that plaintiffs aftercarrying out such demolition themselveswhich theyany ways had supposedtoas pertheir sworninaffidavit and notice issuedby MCD toeffect regularisation, have now approachedthecourtcomplaining against theverysaiddemolition actuated by dishonest intention ofbeing abletograbillegal gratification fromdefendant no.1as construction and sale ofIIIrd floor after regularisation wouldfetch him a handsome price.
Itisalso stated thatitisinconceivable thatwholeportion couldpossibly have been demolished by in one day only.
defendant no.1
7. Beforemoving further, itis pertinent to reproducecertain of Written portions Statementwhich are in direct scanneras faras present controversy is concerned.
Written Statement Para 4 of founds mention, "It is further stated that plaintiffs only demolished the side balcony, however they did not demolish the front set back where in the wall of drawing room was to be demolished and taken behind by 2.6 ft, front and back balconies and mezzanine floor room".
-4-In para no. Written 6 of Statement , it is averred that :-
" It is stated that the plaintiffs since did not comply with the undertaking / affidavit given by them and did not remove/ demolish the excess coverage in their portions, the MCD vide their letter dated 17.09.08 and vide its reminder dated 05.11.08 required the parties to demolish the excess covered area of balance etc. the husbands of plaintiff no. 2 and 3 started demolishing their respective excess coverage which included their front set back of about 2.6 fit and in this process removed the roof of their drawing room so that the front wall could go behind by 2.6 fit and also removed the front projection, roof and front wall of his mezzanine room and roof of his back side balcony. It is further stated that the husband of the plaintiff no. 2, namely, Sh. A.K. Gupta and other family members, except plaintiff no. 2, was very much in Delhi right through this period and the demolition has been done by the chowk labor engaged by him only for this specific purpose."
8. Inthepresent matter, therearetwoanglestothestory involved.
One isthecontention ofplaintiffs versusthoseofdefendants and another isMCD versusbothplaintiffs and defendants inregardtotheir respective portions.
The proceedingsof regularisation, the efforts involved, the swearinginforremovalofentire construction beyondpermissible limit and notices sentby MCD toeffect changesforregularisation allflowinand proceed further in a different framework.
9. As regards the property and damaged portion of respective -5- floors indispute isconcerned, thequestions involved areas towho has carried outthesaiddamage and whethersuchdamage isinthenatureof deconstruction in an effortto bring the propertyin sanctioned compoundablelimit on thepartofplaintiff orthesame constitutes an effort endeavouron thepartof defendantno.1 to thwartdamage theproperty belonging toplaintiffs evenifthesame isdone onlytobringtheproperty in tune with MCD regularisation requirements.
10. Plaintiff has placedon recordcertain photographsof such damaged portions on record.
The concrete portion ishammer down while theironsariyas areintact on thedamaged portion, on portion ofroofof drawing and dining hall of first floor of property.
11. The photographs showingroofofportion ofdrawingand dining hallclearly reflects the householditemsare placedat theirrespective placesand malba kind of is gatheredon them. Projections outside drawing/dining halland some portion insidesaidhallis statedto be damaged whichisnotbeyondconceivable limit considering theextentof damage causedas stated by defendant no.1totheeffect thatsome can't be achieved in a single day.
12. Now gathering thedispersed facts, itcan be saidthatcertain portionsof the respective properties have been deconstructed by respective ownersadmittedly tobringthesame within permissible limit in tune with the MCD regularisation limits. Now which portions were act -6- excessive and whichportions were so removedisnotknown atthisstage of thecase.The probleminthematterpurportedly started thereafter.
It cannotalsoatthis stage, be ofcoursesaidwithcertainly as towho further to that and when and to what extent carried out deconstruction/alteration/damage to portions of first floorand boundary wall of ground floor.
14. Itisthe case of plaintiff thata gapingholestandscreated becauseofremovingofconcrete structure specially inside thedrawingand dininghallwhich has made the house very unsafeas any one can purportedly tailor a secretive entryinthehouse.Similar isthestandtaken outineffect by thedamage totheboundarywall/ balconywallon ground floor of property.
15. The factual position oftheproperty as inexistence now and is deemed to be isnotknown at thisstage.The relief soughtby way of presentapplication is onlyagainstdefendants.
The factsunfoldedby respective parties tothesuitconsidering theparameterofthesuitdo not reflect theclarity inthepicture withcompletedetails.
Thereare lapses, thereareholesintheversion whicharenotrequired tobe pointed outat thisstage.Furtherthe relief claimedby way of temporaryinjunction if grantedinfull forceas askedfor, wouldrather amount todisposal ofthe wholesuit, possibly much todisadvantage ofparties involved thananylong term persistent benefit.
-7-16. As itis,any orderpassed by the courtby way of interim measurehas toprevent further violations and toaim towardsaidofjustice in the matter.
17. The things, as theymay be oras theyare,itisclearthatnone has a right tocauseany damage whatsoever toany one else's property be itwithin permissible legallimits or not.Thereareagencieswho arewell authorised and poweredtoacttopenalise violators.
None has theright to have the law in his own hands, whatsoever he may be.
18. Inviewofabove made discussion, Ideem itpropertorestrain defendant no.1fromcausingany damage inany manner by any means to property and respective portions inownershipand residence ofrespective plaintiffs.
19. Itis statedby plaintiffs in para no. 3 of plaintthatthe impermissible portions ofconstructed property havealready been removed by them.The status ofsuchprojections as on site and inregularisation and alsoofsuchportion indrawingand dininghallhas notbeen stated inthe plaint.
Those portions have been statedtobe inviolation ofpermissible limitsin the WrittenStatement filedby defendantno.1. In the circumstances, itisherebyorderedthatplaintiff no.1and plaintiff no.2 and 3 may carryout incidental/ancillary/maintenance/repairs in the said damaged portion, thatisboundary/ balconywallatgroundfloor and inside drawing and dining hall and not amounting to reconstruction only to -8- safeliving condition inthepremises.
The damaged projections on thefirst floor areallowed tobe repaired totheextent ofensuring thatno damage to any beingiscaused due to any open heavy hangingironsariyas.
Any changeswhichareallowedhereinby way ofthisorderhave tobe carried outonlywellinconformity withtheapplicable MCD Byelaws/Rules and Regulations inclusive ofregularisations conditions putforth by MCD. The saidordernowhereputsMCD on backfoot fromperforming itslegal duties and obligations qua thesuitproperty.
The saidordershall notbe effective unlessan affidavit executedby plaintiff no.1 inrespectofhisportion of property and plaintiff no.2 and 3 qua their respective portions ofproperty is kepton recordtotheeffect thatthesaidproposedrepairs wouldnotbe violative ofany pre-condition orrequirements ofMCD ByelawsRulesand Regulations parametersand thesame wouldbe thesoleand exclusive responsibility of respective plaintiffs carried out at theirown peril and disadvantage ,ifitisso revealed tobe otherwise atany later stage.The said orderbe effective only till any further ordersin the suit.Any observation made hereinwouldnottantamount toany observation ofthis court on merits of the case.
20. Withtheseobservations, application moved on behalf ofplaintiff Under OrderXXXIX rule 1 and r/w 2Section 151 CPC stands disposed off.
21. Now comingtoconsideration ofapplication Under Order1 Rule 10 r/wSection 151 CPC moved on behalf ofdefendant no.1forimpleadment of MCD as a party.
-9-22. The backgroundto be introduced forconsideration of only impleadment oftheMCD as an additional partyremainthesame as have been discussed elobarately inthepreceding paragraphs whilediscussing the application Under Order39 rule 1 and r/w 2Section 151 .CPC
23. Itisaverredintheapplication UnderOrder1 rule10 r/wSection 151 CPC thatthe whole disputein the presentmatteris regarding unauthorised construction in the property and the markingout of the portion whichiscompoundabledistinguishing itfromone whichisnon-
compoundableand accordingly whatalready standsdemolished and what still remain to be demolishedin the suitpropertyand whetherthe demolishedportion can be repaired or re-constructed.
Accordingly, itis averredthatwithout impleadmentof MCD as a necessarypartyinthe presentmatter, itisnot possible to arrive at an effective solution and adjudication of the relief sought for by the plaintiff by the presen
24. In the replyto the saidapplication, plaintiffs submitthatan undertaking was givenby them todemolishnon compoundableportion of the premisesin case plaintiff failto comply to do so but the said undertaking no wheregave any authority todefendant no.1todemolish the portion of groundfloorand first floor owned by the plaintiff.
Itisalso submitted thattheplaintiffs areonlyseekingrepair oftheportion intheir possessions and ifthesaidrepair isbeyondthecompoundablelimit, the MCD can so demolish the same at any time and the plaintiff would hav -10- objection tothesame.Itisalsosubmitted thatevenifthesaidconstruction as alleged isbeyondthepermissible limit, no.1still thedefendant does not have any right to demolish the same.
25. Finally, itissubmitted thatMCD isneither a necessarynora properpartyinthedecision ofthepresent matteras thedispute does not pertain to the action which is to be taken by the MCD.
26. The presentmatterpertains to carrying out of repairand construction of the damaged portion of the plaintiff and restraint upon defendantsin interfering withthe same. Itis clearthatthe dispute emanatesfromthefactumthatas towhatportion standsregularised and what is not.There are counterversionsregardingthe factum of regularisation and theportions whichareso required tobe regularised as putforth by theplaintiff and thedefendant and itisnot possible todraw indisputable inference thatwhethertheportion whicharelying damaged arewithin thedomainofregularisation ornot.Legalrequirements may be available to seek an answer but factual consideration can'tbe ignored.
27. Itisclearthattheplaintiff isa dominuslits and isata liberty tochoosea personagainst whom toseekrelief butthesame ifrequired to straighten and theentangled threadsconsidering thenatureofrelief the scopeofsuit, mustbe interfered with, evenatthecostofdislike ofplaintiff.
The same drawssupport Committee of Management, froma casecalled Ratan Muni Jain Inter-College Vs III Additional Civil Judge, Agra AIR -11- 1995, Allahabad-7 and incasecalled Haridaya Narain Singh vs Lal, AIR 1995 Allahabad 298 thatitisthediscretion of thecourtto add certain personas a party, keepinginviewofthefactsand circumstances ofthe particular case.The relevant portion ofthecaselawisreproduced hereas under :-
"The theory of dominus lits should not be overstretched because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is necessary party, the court can order such person to be impleaded. Merely because the plaintiff does not choose to implead a person, is not sufficient for rejection of an application for being impleaded. The provisions of Order 1 Rule 10(2), CPC are very wide and the powers of the court are equally extensive. Even without an application to be impleaded as a party, the court may at any stage of proceedings order that the name of the any party, who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon the settle and the questions involved in the suit, be added.
28. Inthepresent matter, considering thenatureofcontroversy itis not possible to effectually adjudicate upon the questionwhich are in dispute inthepresentmatterwithout so havingMCD as a party.Itisin interest ofboththeparties thattheconcernedauthority isabletocome beforethecourtand throwlight on theissuecorrectly.
The same isalso required to avoid multiplicity of the litigations which may be the p -12- effect incase theMCD isnot impleaded.
Itwould not by any means change thenatureor scope ofthesuitrather wouldsettle thedistrubed watertothesatisfaction ofbothparties.
No prejudice wouldbe causedto any party if same is allowed.
29. Inviewofthediscussions inthepreceding paragraphs, Iam of the opinionthatpresentmattercannotbe effectually adjudicated upon without impleadmentofMCD as partyinthepresentmatter.
Considering thescopeofthesuitand natureoftherelief soughtfor, itisindispensable to have the MCD as a party in the present matter.
30. Accordingly, application moved by the defendantseeking impleadmentof MCD as a partyinthepresentsuitisallowed.
MCD is herebyimpleadedas defendant inthepresent matter.
Amended memo of parties may accordingly be filed. No order as to costs.
Announced in the Open Court (SHELLY ARORA) on 23th Day of December 2008 CIVIL JUDGE WEST D E L H I