Delhi District Court
Mohd. Asim vs ) North Delhi Municipal Corporation on 16 December, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
RCA - 56/2015
Unique I. D. No. 02401C0596362015
Mohd. Asim,
S/o Sh. Abdul Hameed,
R/o H. No. 461, Chitla Gate,
Jama Masjid, Delhi110006.
......Appellant
Versus
1) North Delhi Municipal Corporation,
through its Commissioner,
Civic Centre, Minto Road,
New Delhi110002.
2) Mohd. Atique Ansari,
S/o Sh. Rafiq Ansari,
3) Mohd. Shafique Ansari,
S/o Sh. Rafiq Ansari,
Both R/o 2318, Gali Mandir Wali,
Kucha Chelan, Darya Ganj, Delhi110002.
RCA56/2015
Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 1 of 11
Also at :
2331, Kucha Chelan, Kucha Nahar Khan,
Darya Ganj, Delhi110002.
4) Station House Officer,
P.S. Chandni Mahal, Delhi.
.......Respondents
Date of institution of appeal : 03.11.2015
Date of reserving the order : 24.11.2015
Date of pronouncement of order : 16.12.2015
O R D E R
1. The present appeal under Section 96 of the Code of Civil Procedure (in short CPC), is directed against the impugned order and decree of Ld. A.S.C.J. (Central), Tis Hazari Courts, Delhi, dated 22.09.2015, thereby allowing the application under Order VII Rule 11 CPC in suit of appellant/plaintiff for permanent and mandatory injunction, bearing CS No. 28231/2015, titled "Mohd. Asim Vs. North Delhi Municipal Corporation & Ors." Vide the impugned order and decree suit aforesaid had been rejected being barred under Section 41 (j) of Specific Relief Act as well as on the ground that plaint does not RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 2 of 11 disclose clear cause of action.
2. Feeling aggrieved with the order of the trial court, present appeal was preferred by the appellant/plaintiff on the grounds that (i) impugned order and decree had been passed without appreciating the facts, documents which had been placed by the appellant/plaintiff and also circumstances of the matter and was solely based on surmise and conjectures as well as presumption; (ii) Trial Court ought to have consider that the appellant/plaintiff resided in the vicinity of the suit property; (iii) impugned order and decree had been passed without appreciating the facts of the case and provisions of Section 39 of Specific Relief Act and the judgment of Hon'ble Supreme Court cited by appellant/plaintiff; (iv) Trial Court had completely overlooked the replication as well as application u/s 340 Cr. P.C. as well as reply of the application under Order VII Rule 11 read with Section 151 CPC; (v) findings of Trial Court are wrong on the face of it and Trial Court did not consider the averments of plaint as well as of the complaint thoroughly and without applying its judicious mind passed impugned order without RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 3 of 11 going through the contents of entire plaint as well as the contents of the complaint; (vi) Trial Court completely overlooked the genuineness of documents, police complaints, NDMC complaints and photographs, which were taken on time (day to day) in respect of illegal and unauthorized construction; (vii) Trial Court did not apply its judicious mind and overlooked the report, documents, written statement of respondent no1 and the status report as filed by SHO PS Chandni Mahal in respect of the illegal unauthorized construction continuously going on at the suit premises; (viii) Trial Court ought to have considered the documents and the stopped work notice as placed by respondent no1/defendant, which itself proved the contents of plaint and without considering the entire facts and detailed documents, Trial Court passed harsh and illegal order against the appellant/plaintiff in favour of respondents/defendants; (ix) Trial Court ought to have considered the facts of the complaints in respect of the threats to the appellant/plaintiff by respondents/defendants no. 2 and 3 during pendency of the case as appellant/plaintiff was beaten, confined and threatened with dire consequences and death and filed MLC of hospital and various RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 4 of 11 complaints; (x) Trial Court had not considered the complaints filed by appellant/plaintiff to various police officials/department as well as NDMC Department regarding the illegal and unauthorized construction running 24/7 at the suit premises without taking prior permission from concerned department and without sanctioning the site plan and due to this livelihood of the peoples in the vicinity and passersby was totally disturbed and the police as well as NDMC officials did not initiate any action against respondents/defendants no2 and 3; (xi) Trial Court did not consider the documents and photographs as placed by appellant/plaintiff by way of application for preponment of case as respondents/defendants no. 2 and 3 by greasing the plans of respondents/defendants no1 and 4 were continuously doing day and night illegal and unauthorized construction and even after the direction was given by Trial Court to respondents/defendants no1 and 4, the respondents/defendants no. 2 and 3 totally disrespect the directions passed by Trial Court, though appellant/plaintiff intimated/informed Trial Court on time to time by placing detailed applications with detailed documents and photographs and further informed the Court by placing detailed reply of the false RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 5 of 11 applications as well as false written statement filed by respondents/defendants no2 and 3, which were totally based upon false and incorrect facts; (xii) respondents no2 and 3 misled this Court by placing wrong and false facts in his written statement in respect of no construction work was being run and further wrongly said that the said construction was old construction and no fresh construction was being carried out. Trial Court without considering the material placed on record of the case file, passed the impugned order, which was illegal, unjust and improper and against law and facts of the case; (xiii) Trial Court ought to have considered the complaint filed by appellant who was beaten brutally by the respondent no2 to 4 and also by Sh. Umar Builder, who had taken the contract of the illegal construction in the suit premises and at the instance of respondent no2 and 3 had beaten and illegally detained the appellant and further pressurized him to withdraw his complaint and the suit of permanent and mandatory injunction before the Trial Court; (xiv) Trial Court ought to have considered the documents of residence of appellant i.e. ration card of his wife, showing he was residing near the suit premises in the same street; (xv) Trial Court ought RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 6 of 11 to have considered the fact that despite directions was given by Trial Court to police as well as NDMC and despite affixation of notice of stop work by NDMC, respondents no2 and 3 continuously completed their illegal and unauthorized construction work by locking the gate and disrespect the directions passed by Trial Court; (xvi) Trial Court ought to have considered the fact that prior to filing the present case, appellant/plaintiff filed criminal complaints against respondents/ defendants no2 and 3, who with collusion and connivance of builder lobby as well as respondent/defendant no4 beaten brutally the appellant/plaintiff and MLC dated 09.06.2015 was also prepared in this regard as well as police complaint was also filed by appellant/plaintiff against respondents/ defendants no. 2 and 3, Umar Builder and against SI Usman, who was continuously helping the respondents/defendants no2 and 3 in completion of their illegal and unauthorized construction; (xvii) the findings of Trial Court was erroneous on the point of judgment as cited by the applicants because said judgment Santander Kumar Jain Vs MCD and Subhash Chander Goel Vs. O. Prakash, judgments the facts as cited in both the judgments were all together on different facts and there RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 7 of 11 was no similarity with the facts of the case of the appellant/plaintiff and Trial Court did not apply its judicious mind on these judgments; (xviii) Trial Court must have called the entire site plan of the area/vicinity by official of NDMC for clear picture of the place; (xix) Trial Court ought to have considered the address of Jama Masjid also comes in the vicinity/area of the suit premises; (xx) the findings of Trial Court are not sustainable in the eyes of law; (xxi) Trial Court without reading the entire contents of complaint, filed by appellant, passed impugned order, which was wrong and illegal against the law and facts of the case; (xxii) impugned order was passed without applying the judicial mind and, therefore, the findings were not sustainable in the eyes of law and were liable to be set aside in the appeal. Appellant/plaintiff prayed for setting aside of the impugned order.
3. I have heard the arguments of Sh. Firoz Ahmed, Ld. Proxy Counsel for appellant/plaintiff, perused the record of this appeal and the entire record of the trial court received on requisition and have given my thoughts to the contentions put forth. Ld. proxy counsel for RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 8 of 11 appellant/plaintiff argued in terms of averments of appeal seeking setting aside of impugned decree and order.
4. Appellant/plaintiff had filed the suit for permanent and mandatory injunction alleging of being aggrieved for unauthorized construction being raised by respondents no2 and 3 at premises situated at Dariya Ganj, New Delhi110002, the suit property. Admittedly, appellant/plaintiff is a native of premises situated at Jama Masjid, Delhi110006. Place of abode of appellant and of respondents no2 and 3 are poles apart. Appellant/plaintiff was not an immediate neighbour of the suit property of respondents no2 and 3, whose easementary rights were affected by alleged unauthorized construction nor was even the resident of locality where the suit property was situated. Suit had not been filed under Section 91 of CPC as a case of public nuisance and other wrongful acts affecting the public in terms of the procedure laid in said Section, wherein case may be instituted by the Advocate General or with the leave of the Court by two or more persons. Section 41, Clause (j) of the Specific Relief Act, 1963 embodies that an injunction cannot be RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 9 of 11 granted when the plaintiff has no personal interest in the matter. In the case of Premji Rataney Shah Vs. UOI, (1994) 5 SCC 547, it was inter alia held that the plaintiff must have personal interest in the matter and when the interest of right not shown to be in existence, then under clause
(j) of Section 41 of Specific Relief Act, 1963, cannot be protected by injunction.
5. All and sundry cannot question legal status of buildings in Delhi nor can seek injunction by way of suit for injunction, permanent, perpetual or mandatory. Appellant/plaintiff, a native of distant place, having no easementary rights affected by alleged unauthorized construction, having no personal interest in the suit property situated in a distant locality from his place of abode, had no locus standi to seek mandatory or permanent injunction for restraining respondents no2 and 3 for alleged unauthorized construction in view of Clause (j) of Section 41 of Specific Relief Act, 1963, as held in the case of Premji Rataney Shah Vs. UOI (supra). In the impugned order, the Trial Court rightly held of suit being accordingly barred, plaint being bereft of clear cause of RCA56/2015 Mohd. Asim Vs. North Delhi Municipal Corporation & Ors. Page 10 of 11 action, as discussed in detail therein. Impugned order and decree is not suffering with any infirmity or illegality and cannot be interfered with or set aside. Grounds of appeal lack substance and merits. Appeal is accordingly dismissed. No order as to costs.
6. File of this appeal be consigned to record room and the requisitioned file of trial court be sent back against receipt. Copy of this order be also sent to the trial court.
Announced in open Court (GURVINDER PAL SINGH) on 16th Day of December, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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