Delhi District Court
Mrs. Alape Kaur & Others vs Sh. Pavan Chawla & Others on 20 September, 2011
1
IN THE COURT OF Ms. VEENA RANI : ADDITIONAL RENT CONTROLLER
cumCOMMERCIAL CIVIL JUDGEcum ADMINISTRATIVE CIVIL JUDGE:
NEW DELHI DISTRICT : PATIALA HOUSE COURTS, NEW DELHI
Suit No:43/11
Mrs. Alape Kaur & others .....Plaintiffs.
Vs.
Sh. Pavan Chawla & Others .....Defendants
ORDER
1. Vide this order I shall decide the application u/o 39 rule 1 & 2 CPC R/W section 151 CPC filed by the applicant/plaintiff for adinterim injunction for directing the defendant No:3(New Delhi Municipal Council) to prevent any further construction which is not authorized and approved by the NDMC and the plaintiff in the suit property and to restrain the defendant No:1 Sh. Pavan Chawla and defendant No: 2 Pankaj Chawla and its employees, agents and representatives from carrying out any kind of construction or demolition in the suit property No:G73, Connaught Place, New Delhi. Briefly stated the facts for the disposal of above application are as under:
2. It is stated by the plaintiffs that they are the owners of entire G Block, Connaught Circus and defendant No:1 and 2 are their tenant in respect of Flat bearing No:G73, Connaught Place, New Delhi. It is stated that roof over and above the said flat No:G73 exclusively belongs to the plaintiff and no tenancy or any other Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 2 rights have been created in favour of the plaintiff in respect of the same.
3. It is further stated by the plaintiffs that they have filed a petition u/s 14(1)(e) of Delhi Rent Control Act against the defendant No:1 and 2 and after the receipt of the notice of the aforesaid petition, the defendant No:1 and 2 in connivance with their illegal sub tenant M/s Marvel Vinyls Ltd started breaking down the entire suit premises with the view to make structural and permanent alteration which are illegal and not authorized under the lease agreement dated 16101990. It is stated that when the attorney of the plaintiff visited the suit property on 2552011 to serve a letter on the defendant No:1 and 2 , he was shocked to see the position of the tenanted premises. It is further stated that internal permanent walls of the tenanted premises had been demolished by the respondents and the toilet earlier there at the premises was also removed and the load bearing walls have been severely damaged by the defendant No:1 and 2. It is further stated by the plaintiff that the front Verandah was covered and amalgamated with the tenanted premises by building concrete wall and in addition to this the floor of the entire premises had been broken and the ceiling damaged substantially.
4. It is stated by the plaintiffs that plaintiff No:1 made a written complaint to the NDMC regarding the aforesaid illegal acts/unauthorized construction made by the defendant No:1 and 2 in the suit premises and on the complaint of the plaintiff the official of the NDMC visited the suit property and directed the defendant No:1 and 2 to stop the illegal construction in the suit premises but no Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 3 action has been taken by the NDMC against the defendant No:1 and 2. Plaintiff has placed on record the photographs of the illegal construction raised in the suit premises.
5. Plaintiffs stated that the unauthorized and illegal construction raised by the defendant No:1 and 2 in the suit property is liable to be demolished by the defendant No:3 , but as no action has been taken by the NDMC against the unauthorized construction, hence the plaintiffs have filed the present suit.
6. The defendant No:1 and 2 filed their written statement and admitted that they are the tenants in the suit property bearing No:G73, Connaught Circus, New Delhi but they have not admitted the ownership and land lordship of the plaintiff for want of knowledge. It is stated by defendant No:1 and 2 that roof/terrace of the suit property is also the part of the tenanted property and is under the exclusive possession of the respondent No:1 and 2. Defendant No:1 and 2 have stated that they have not made any material alteration or structural changes in the tenanted/suit premises and they are only carrying out repair and renovation work in the suit property as there was seepage of water in some part of the suit property which required immediate repair and renovation. It is stated by the defendants that they have not carried out any unauthorized construction and not causing any damage to the tenanted premises nor they caused any material or structural alteration in the suit property. It is stated that they have not violated any provision of NDMC Act and building bye laws or any other law. Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 4
7. Defendant No:3/NDMC also filed written statement. It is stated by the NDMC that no structural and permanent alteration has been made at the suit property and only work which are permissible under Building Bye Laws has been carried out by the defendant No:1 and 2. It is further stated that only the partition wall which was damaged during the replacement of window at the time of renovation of Connaught Place carried out by NDMC has been demolished and wooden partition has been installed. It is stated that no toilet was removed from the suit premises but only fixtures were changed and existing toilet was renovated at the same place. It is denied by NDMC that defendant No:1 and 2 has completely changed the structure of the suit premises or carried out the structural alteration in the suit property. It is stated by the NDMC that the work carried out by the defendant NO:1 and 2 in the suit premises are the nature of renovation which comes under Building Bye laws such as installation of wooden partition with glass increase the size of window of internal wall for which no permission is required from the NDMC.
8. A Local Commissioner was also appointed by the court in the present case vide order dt.762011 and the report of the local commissioner along with photographs of the suit property are also on record.
9. I have heard the ld. Counsel for the parties and perused record carefully. I have also perused the report of the LC.
10.The plaintive have filed the present suit seeking the permanent & mandatory Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 5 injunction against the defendants No.1 & 2. The NDMC has been arrayed as defendant no.3.
11. The plaintive have averred that the defendants No.1 & 2 have carried out major construction in the suit premises which was let out to them vide lease deed dated firstly created in the year 1990. The plaintive have averred that the defendants No. 1 & 2 have changed the structure of the premises which was not allowed neither under the deed nor under the NDMC Act. The said changes have caused damage to the structure.
12.The respondents have admitted that certain renovation work was carried out but they have denied that any structural change or damage has been done by them. They have specifically averred that when the suit premises was handed over to them under the lease it was in a bad condition and the lease deed it self provided that the defendants could carry out renovations etc.
13.The NDMC has stated in its reply that they had visited the suit premises and had inspected the same. The NDMC did not find any deviation(s) from the building bylaws etc. As per the NDMC the work carried out by the defendants did not change the structure and the same were permissible renovations.
14. This court had appointed Kumari Indu Ranjan, Adv. As the Local Commissioner who carried out the site inspection and submitted her report of the inspection.
15.As far as the issue of construction in the present suit is concerned the lease deed dated 16th Oct. 1990 says that the Flat No. G73 has become in bad state of repairs Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 6 and the roof is leaking in most of the rooms. The said lease further says that the tenants will not make structural alterations to the premises without the written consent of the landlords. However, certain liberty was granted to the tenants :
i. To install air conditioner / cooling equipments etc; to erect temporary cabins / partition ; to install fixtures etc. provided the said acts / tasks do not contravene any bylaws, rules etc.;
ii. To glaze the front verandah;
iii. To cover the open court yard of the demised premises by making rooms out of the FAR allowed to the Landlord. The same was to done after obtaining the necessary permission the NDMC, L & D Department etc.;
16.However, the lease deed dated 16th Oct. 1990 did not allow the tenants to raise any construction(s) more than 11 Feet high in the open court yard and the Landlord(s) were free to raise another floor over it. The condition was that the tenants could raise only 14" walls which could bear the load of another floor. No mezzanine floor was allowed by the said lease deed.
17. The present suit is premised upon the issue whether the construction - so called renovation by the defendants No.1 & 2 - are within the terms & conditions of the Lease Dated 16th Oct. 1990 which while allowing (with the consent of the landlords) certain need based renovations clearly prohibited (without the written consent of the landlords) any structural change / alteration to the structure which Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 7 existed on 16th Oct. 1990. The Executive Engineer Sh. H.P. Singh filed the reply on behalf of the NDMC stating therein that only those works were allowed to be carried out which were permitted under the law. No structural changes were made by the defendants no.1 & 2. However, the NDMC has not filed any inspection report in tat regard. It was also averred in the reply by the NDMC that only the partition wall which was damaged during the replacement of window (at the time of the renovation of Connaught Place carried out by the NDMC during the Commonwealth Games in Delhi) has been demolished and the wooden partition has been installed. No toilet was removed from the suit premises only the fixtures were changed and the existing toilet was renovated at the same place. As per the NDMC the structure was not changed by the defendants No.1 & 2. It was further stated by the Executive Engineer in his reply that no permission was required from the NDMC to carry out work such as installation of the wooden partition, renovating the toilet, changing of the false ceiling, dismantling of the partition wall, changing the size of the window of any internal wall.
18. This court had appointed Kumari Indu Ranjan, Adv. As the Local Commissioner who carried out the site inspection and submitted her report of the inspection. She has reported that when she reached the spot alongwith a photographer there was another photographer who was shooting at the behest of the defendants. This caused inconvenience to the Learned Local Commissioner. The construction work was on and there were several laborers working even till 7:30 P.M. Some new Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 8 sanitaryware was also lying their. It has also been reported that apparently window of about 4 ½ ft. by 3 ½ ft. was recently built -in the load bearing wall of the conference room. Even the fresh cement particles were seen on the window (Photograph A7). A new door was also discovered (Photograph A8) which opened into an apparently newly constructed cabin (Photograph A9). Reportedly the said area was an open verandah where the cabin was constructed. The back supporting wall of the cabins had cemented network of ventilation which now seemed blocked (Photograph A10). During the inspection it was admitted by the defendants No.1 & 2 that the main wall of the toilet was demolished, now replaced by plywood. (Photograph A12). The photograph A14 depicts the window which was repaired by the NDMC during the Commonwealth Games. This was also admitted by the defendants No.1 & 2. The open courtyard (aangan) at the time of the execution of the lease now had a fiber ceiling.
19.In a suit for perpetual injunction, the court would enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff.
20.In Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, a Bench of three Judges held that "a party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the Court and Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 9 such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles ex debito justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Further the Court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court."
21. In Dalpat Kumar v. Prahlad Singh, (1992)1 SCC 719 : (1992 AIR SCW 3128) a Bench of two Judges (in which K. Ramaswamy, J. was a Member) of this Court held that the phrases "Prima facie case," "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The Court would be circumspect Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 10 before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 11 Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
22.In "Law of Injunctions" by L.C. Goyle, at page 64, it is stated that "an application for temporary injunction is in the nature of a quia timer action. Plaintiff must, therefore, prove that there is an imminent danger of a substantial kind or that the apprehended injury, if it does come, will be irreparable. The word "imminent" is used in the sense that the circumstances are such that the remedy sought is not premature. The degree of probability of future injury is not an absolute standard:
what is aimed at is justice between the parties, having regard to all the relevant circumstances". At page 116, it is also stated that "in a suit for a perpetual or mandatory injunction, in addition to, or in substitution for, the plaintiff can claim damages. The Court will award such damages if it thinks fit to do so. But no relief for damages will be granted, if the plaintiff has not claimed such relief in the suit."
23.After considering the arguments of the parties I am of the considered view that the defendants No.1 & 2 have prima facie deviated from the terms & conditions of the lease deed dated 16th Oct. 1990. However, the same would require cogent proof at the time of the adducing of the evidence.
24.The application of the plaintive is accordingly allowed and the defendants No.1 & 2 or their agents etc. are restrained from carrying out any construction work at the Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 12 suit premises bearing No:G73, Connaught Place, New Delhi till the final disposal of the present case. Nothing of what has been stated herein above shall have any bearing on the merits of the case.
25.Put up for documents, A/D and issues on 29102011.
Announced in the open court on this 20th day of September, 2011. (VEENA RANI) ARC/ACJ/CCJ/New Delhi Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 13 IN THE COURT OF Ms. VEENA RANI : ADDITIONAL RENT CONTROLLER cumCOMMERCIAL CIVIL JUDGEcum ADMINISTRATIVE CIVIL JUDGE:
NEW DELHI DISTRICT : PATIALA HOUSE COURTS, NEW DELHI Suit No:43/11 Mrs. Alape Kaur & others .....Plaintiffs.
Vs.
Sh. Pavan Chawla & Others .....Defendants
ORDER
26. Vide this order I shall decide the application u/o 8 rule 10 CPC r/w section 151 CPC filed by the applicant/plaintiff for issuing direction to take off the WS of the defendant No:1 and 2 from the record and pronounce the judgment against all the defendants. Briefly stated the facts for the disposal of the present application are as under:
27. It is stated by the plaintiff that in the present case summons were issued to the defendants for 9th June, 2011 and since the defendant No:1 and 2 were on caveat, the notice of the present case was accepted by their counsel in the court. It is further stated that after hearing the arguments on the injunction application of the plaintiff, the defendants were directed to file their WS. It is further stated that since the defendants have filed their written statement after 90 days of appearance, the same can not be permitted to be taken on record without the defendant No:1 and 2 showing sufficient case. It is stated by the plaintiffs that defendants No:1 Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 14 and 2 have not filed any application in terms of order 8 rule 1 CPC, hence the written statement of the defendant no:1 and 2 can not be taken on record. Plaintiff prayed that the WS of the defendant No:1 and 2 be taken off from the record and a judgment be pronounced against all the defendants.
28.Defendant No:1 and 2 filed reply to the above application of the plaintiffs and stated that plaintiffs have filed the present suit as well as other applications against them as vendetta and to harass the defendants. It is stated that on 3082011 the counsel for the defendant NO:1 and 2 was present with WS and was ready to argue the stay application but matter was passed over till 12:30 p.m for the counsel for the plaintiff and when at 12:30 p.m counsel for the defendants appeared the matter was already adjourned for 692011 for argument on interim application, therefore, the WS could not be filed on that day. It is further stated that on the next date i.e. on 692011 , counsel for the plaintiffs again taken the date and the matter was adjourned for 2192011 for filing of written statement of defendant No:1 and 2. It is stated that counsel for the defendant No:1 and 2 appeared before 11:30 a.m and found that again plaintiff has managed to avoid hearing and taken the adjournment. Ld. Counsel for the defendant No:1 and 2 filed their written statement on 692011 itself. It is stated that the present application of the plaintiffs is misplaced and false. It is further stated that there is no delay in filing the WS by the defendant No:1 and 2. It is denied by the defendant No:1 and 2 that they have failed to file WS within stipulated time or that they have Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 15 rendered themselves liable for any consequences in terms of order 8 rule 10 CPC.
Defendants prayed for dismissal of the application of the plaintiffs with heavy cost and also prayed for overlooking/condone the delay, if any, in filing the WS by them.
29.I have heard the ld. Counsel for the parties and perused record carefully. It is the mandate of the order 8 rule 1 CPC that from the date of the service on the defendant, written statement should have been filed within thirty days and not beyond 90 days.
In the present case, it is averred by the ld. Counsel for the plaintiffs that written statement on behalf of the defendant No:1 and 2 has been filed beyond the period of 90 days therefore their written statement should be taken off the record.
On the other hand , it is the submission of the ld. Counsel for the defendant No:1 and 2 that the written statement on behalf of defendant No:1 and 2 was ready on 3082011 but when he appeared at about 12:30 p.m, the matter was already got adjourned for 692011 and on 692011 he filed the WS on behalf of the defendant No:1 and 2. it is further averred that written statement is within time and present application has been filed by the plaintiffs to harass the defendant No; 1 and 2.
It is a matter of record that the WS on behalf of the defendant No:1 and 2 was filed on record only on 692011, however, no explanation as such given by the defendant no:1 and 2 as to why the same was not filed within 30 days from Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others 16 the date of their service. The defendant no:1 and 2 , however were given last and final opportunity for filing the written statement on 692011 and on the same date they filed their written statement. In the interest of justice and for the purpose of the fair adjudication of the present case, the WS of the defendant No:1 and 2 is hereby taken on record.
The application of the plaintiff u/o 8 rule 10, r/w section 151 CPC stands disposed off accordingly.
Announced in the open court on this 20th day of September, 2011. (VEENA RANI) ARC/ACJ/CCJ/New Delhi Suit No:43/11 Mrs. Alape Kaur & others Vs. Sh. Pavan Chawla & Others