Delhi District Court
Suit No. 95336/16 vs Sh. Vijay Kumar S/O Sh. Ram Gopal on 21 November, 2019
IN THE COURT OF NEHA MITTAL: CIVIL JUDGE10,
CENTRAL, TIS HAZARI COURTS : DELHI
Suit No. 95336/16
In reference:
Sh. Devender Kumar
S/o Sh. Ram Gopal,
R/o 5757, Block No.5, Dev Nagar, D.B.Gupta Road,
Karol Bagh, New Delhi.
.....Plaintiff
VERSUS
1. Sh. Vijay Kumar S/o Sh. Ram Gopal
2. Smt. Santosh W/o Sh. Ram Gopal
Both R/o 5757, Block No.5, Dev Nagar, D.B.Gupta Road,
Karol Bagh, New Delhi.
3. Smt. Meena Sharma W/o Sh. Narinder Sharma
812/35, Janta Colony, Purana Gas Godown,
Rohtak, Haryana.
4. Sh. Om Parkash S/o Sh. Roshan Lal,
R/o 5757, Block No.5, Dev Nagar, D.B.Gupta Road,
Karol Bagh, New Delhi.
5. Municipal Corporation of Delhi,
Karol Bagh Zone, Anand Parvat, New Delhi.
.... Defendants
Date of Institution : 22.10.1998
CS No. 95336/16
DEVENDER KUMAR Vs. VIJAY KUMAR
Page No. 1 of 22
Date of Judgment : 21.11.2019
SUIT FOR PERMANENT & MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned suit. This is a suit for permanent and mandatory injunction filed by the plaintiff against the defendants.
PLAINT:
2. As per the averments made in the plaint, the brief facts are that the father of plaintiff and defendant no.1&3 and the husband of defendant no.2 purchased property bearing no.5757, Block No.5, Dev Nagar, D.B. Gupta Road, Karol Bagh, New Delhi (hereinafter referred to as suit property) from Sarvshri Ram Das Beri and Sham Dass Beri both sons of Sh. I.D. Beri in year 1982; that after purchase of the suit property Sh. Ram Gopal came into the possession of the same as owner; that Sh. Ram Gopal died in 1995 and thereafter plaintiff and defendant no.1 & 3 came into possession of the suit property being legal heirs and owners; that the defendant no.4 with some arrangement with late Sh. Ram Gopal, occupied a portion of the said property and is still in occupation thereof and has now started carrying out illegal construction; that M/s. Popular Dry Cleaners were inducted as tenant CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 2 of 22 somewhere in 1980 by the previous owners Sh. Sham Dass Beri and Sh. Ram Das Beri; that M/s. Popular Dry Cleaners through its partner Sh. Sant Lal in year 1992 filed a suit for permanent and mandatory injunction against the plaintiff and defendant no.1 and 2 who has now vacated the said portion which is a commercial one; that major portion of the same is with defendant no.4 and further green portion is with the plaintiff and defendant no.1 to 3; that the plaintiff is joint owner of the property having inherited the ownership rights from his father late Sh. Ram Gopal; that after vacation of commercial portion the said portion is still lying vacant and further the defendant no.1 & 2 are now bent upon letting out the same after accepting a huge pugree without even taking into confidence the plaintiff who is equally owner thereof; that the defendant no.3 being also a legal heir of late Sh. Ram Gopal having inherited ownership rights is made proforma party; that the defendant no.4 is in occupation of the portion of the suit property is being impleaded as the party as he is carrying out unauthorized construction activities in the portion marked black in the site plan filed along with the plaint; that the defendant no.4 has completed the construction on the portion shown black in the site plan; that the said construction is unauthorized and contrary to the MCD Act & Rules and Building Byelaws.
CS No. 95336/16DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 3 of 22
3. Hence, the present suit praying for decree of permanent injunction thereby restraining the defendant no.1 & 2 their agents, servants etc. from letting out the portion of suit property shown in green colour in the site plan to anyone in any manner; decree that defendant no.4 be permanently restrained from carrying out the unauthorized construction in the portion marked black in the site plan of the suit property; and decree of mandatory injunction thereby directing defendant no.4 and 5 to demolish / remove the unauthorized construction made by defendant no.4 in the portion shown black in the site plan of suit property has been filed.
DEFENCE :
4. In written statement filed by defendant no.1 & 2, it is stated that plaintiff is not the absolute owner of the suit property; that he is one of the coowner being legal heir of late Sh. Ram Gopal, hence coowner has no right to restrain the other coowners; that the remedy available with the plaintiff is to file a suit for partition and not for injunction and without partition the present suit is not maintainable; that the plaintiff has no right to restrain the defendant no.1 and 2 in any manner because he is not the absolute owner and the property is yet to be partitioned.
CS No. 95336/16DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 4 of 22
5. In written statement filed by defendant no.4, it is stated that the present suit is an outcome of difference of the plaintiff with defendant no.1,2 & 3; that the present suit has been filed with ulterior motive to blackmail him as in the suit itself no relief has been claimed against him; that the property in his occupation is exclusively and independently occupied by him and the disputed small portion of plaintiff as well also defendant no.1,2 & 3 are totally unlinked with his premises; that defendant no.4 is the owner of his property purchased from late Sh. Ram Gopal Sharma on 27.04.1982; that on 27.04.1982 Sh. Ram Gopal sold 90 sq.yds. out of the suit property to defendant no.4 and gave peaceful and vacant possession of the same after receiving the full consideration amount of Rs.45,000/; that defendant no.4 has not done any unauthorized construction and the same has been allowed by the appellate court; that the MCD has not booked the property of the defendant no.4 under unauthorized construction; that the portion of the property under the occupation of the tenant remained with the tenant for about 50 years and since the old construction was result of mud and old small bricks which has practically lost its life, defendant no.4 has started carrying out repair work and repaired the roof with the same height after applying the same with MCD to make it worth habitable.
CS No. 95336/16DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 5 of 22
6. In written statement filed by defendant no. 5, it is stated that the present suit is not maintainable for want of statutory notice u/s. 477 / 478 of DMC Act, 1957; that there is no cause of action against the answering defendant MCD; that suit property bearing no.5757, Block no.5, Dev Nagar, New Delhi was inspected by the concerned JE, Building on 03.04.2012; upon inspection, it was found that the suit property consists of 180 sq.yds. which was divided into two parts longitudinally, out of which one part was further divided into two parts of 45 sq.yds. each which are marked as B & C in the rough sketch as shown in the show cause notice issued by MCD; that no construction was being carried out at the suit property at the time of inspection; that as per record of defendant MCD, there is no sanctioned building plan of the suit property, hence property is unauthorized and illegal in the eyes of law, therefore, a show cause notice under the relevant provisions of the DMC Act, 1957 was issued to the owner / occupier Sh. Devender vide no.22436 dt. 03.04.12 in the shape of unauthorized construction in the property; that under portion shown as (A) unauthorized construction of ground floor with projections on the municipal land and one room and veranda at roof of ground floor, portion shown as (B) unauthorized construction of ground floor, first floor, second floor and third floor with projections CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 6 of 22 on municipal land, portion shown as (C) unauthorized construction of ground floor with projections on municipal land. It has further been stated that the present suit has been filed with ulterior motives only to settle the personal scores between the parties. REPLICATION :
7. In replication, averments made in the written statement of defendants have been denied and that of plaint have been reiterated. ISSUES:
8. From the pleadings of the parties, following issues were framed on 15.11.99 : I. Whether plaintiff is entitled to the relief claimed? OPP II. Whether suit of the plaintiff is without any cause of action ?OPD III. Relief.
9. Following additional issues were framed on 11.12.12: i. Whether the construction raised by defendant no.4 is legal and is repair ? OPD4 ii. Relief.
PLAINTIFF EVIDENCE:
10. In support of the case, plaintiff has examined himself as PW1. He has deposed that the portion shown in black colour in site plan is in CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 7 of 22 possession of defendant no.4 who is carrying unauthorized construction over the same. He has also deposed about the court proceedings including grant of interim order to stop the construction as well as appointment of local commissioner & filing of application u/o 39 rule 2 A CPC as defendant no.4 did not stop the construction despite orders. He has proved the site plan as ExPW1/1, proceeding sheet of Local Commissioner as ExPW1/2, report of Local Commissioner as ExPW1/3, photographs as ExPW1/4 to ExPW1/20, application u/o 39 rule 2A as ExPW1/21, application u/s. 151 CPC for grant of police aid as ExPW1/22, another application u/s. 151 CPC for grant of police aid as ExPW1/23, another application u/o 39 rule 2A as ExPW1/24 and photographs as ExPW1/25 to ExPW1/28.
11. Vide separate statement, PE was closed.
DEFENDANT EVIDENCE:
12. In support of case, defendant no.4 has examined himself as DW1. He has deposed that he purchased the suit property by way of GPA, agreement to sell and receipt which were marked as Mark A, Mark B and Mark C. He has further deposed that at the time of vacation of a portion of suit property by tenant Popular Drycleaners, the same was in a dilapidated condition and hence, application Mark B was filed before MCD for repair and thereafter necessary repairs were CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 8 of 22 carried out. He has further deposed that he did not carry out any repair after the stay order but resumed the repair work on grant of permission by Ld. Senior Civil Judge in appeal.
13. Vide separate statement, DE was closed.
FINAL ARGUMENTS:
14. I have heard the final arguments and gone through the record.
15. It is submitted by counsel for plaintiff that it is abundantly clear from the status report filed by the MCD that the construction raised by defendant no. 4 is unauthorized and hence, plaintiff is entitled for the relief claimed. Per contra, counsel for defendant no. 4 has submitted that the present suit has become infructuous as the unauthorized portion has already been demolished which can be seen from the status report filed by MCD on 31.01.13 and the photographs annexed therewith.
FINDINGS OF THE COURT : ISSUE NO.1 : Whether plaintiff is entitled to the relief claimed? OPP
16. The burden to prove this issue is on plaintiff.
17. The plaintiff has claimed following 3 reliefs:
Relief (i) restraining the defendants no.1 & 2 from letting out the premises shown in green court in the site plan CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 9 of 22 ExPW1/1/;
Relief (ii) restraining defendant no.4 from carrying out unauthorized construction in portion marked black in the site plan ExPW1/1;
Relief (iii) decree of mandatory injunction to demolish the unauthorized construction made by defendant no.4 shown in black in the site plan ExPW1/1.
Relief (i) restraining the defendants no.1 & 2 from letting out the premises shown in green colour in the site plan ExPW1/1.
18. Defendant no.1 & 2 have already got their statements recorded on 06.09.99 on oath whereby they have undertaken not to let out the green portion as shown in site plan to anyone else. On the basis of this statement, the suit of the plaintiff has already been disposed off as settled against defendants no.1 & 2 vide order dt. 06.09.99. Relief no.(ii) restraining defendant no.4 from carrying out unauthorized construction in portion marked black in the site plan ExPW1/1;
19. It has been submitted on behalf of plaintiff that defendant no.4 has raised unauthorized construction in the black portion and that such construction has been raised despite stay order dt. 18.11.98. On the other hand, it is submitted on behalf of defendant no.4 that only repair CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 10 of 22 work was being done by him and no construction contrary to the bye laws and against the orders of this court has ever been carried out.
20. During the cross examination, DW1 had stated that he had given an application Mark B before MCD for repair of suit property. However, it has nowhere been asserted that the aforesaid application of defendant no.4 was ever allowed by the MCD. Filing of an application is completely different from getting permission for making the repairs. Further, DW1 has admitted the correctness of site plan ExPW1/1 by stating in his cross examination dt. 13.02.02 that the shop shown in black colour in site plan ExPW1/1 is correct. It has also been admitted that on 22.10.98 when the present suit was filed there was no roof on the said portion and side walls of this portion were built up to 8ft. DW1 has also admitted the correctness of the proceedings sheets ExPW1/2, report ExPW1/3 and photographs ExPW1/4 to ExPW1/20 taken by the local commissioner. It is to be noted that in report ExPW1/3, it has been stated that construction activities were going on in black portion and construction material was also lying there. It has also been stated that there were 3 partly constructed pillars, a small wall to separate the black and green portions and defendant no.4 had stated that all these construction activities are being carried out by him. Further, DW1 has admitted that CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 11 of 22 he was aware of the restraint order dt. 23.10.98 passed by the predecessor of this court. In the later part of the cross examination DW1 has deposed that 'It is correct that as on today the shop has been fully constructed and I am carrying on business from the aforesaid shop. I have not got any permission to carry out any construction in the property. Vol. I got permission for repair and I carried out repairs only. I had not got sanctioned any plan from the MCD for the aforesaid repairs.'
21. A bare reading of the aforesaid portion of cross examination of DW1 clearly shows that construction has been carried out in the shop in black portion during the pendency of the present suit. This fact stands fully corroborated from another admission of DW1 that the construction was completed in the month of July,1999 which clearly implies that the defendant no.4 continued with the construction after the filing of the present suit and after the passing of restraint order dt. 23.10.98. It is further clear that such construction was carried out without any approved sanctioned plan from the MCD.
22. MCD has also clearly stated in its report dt. 31.01.13 that the property has been booked for unauthorized construction. Hence, it becomes apparently clear that defendant no.4 had carried out unauthorized construction in the suit property. Thus, plaintiff is CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 12 of 22 entitled to the relief of restraining defendant no.4 from carrying out unauthorized construction in black portion of site plan. Relief no.(iii) decree of mandatory injunction to demolish the unauthorized construction made by defendant no.4 shown in black in the site plan ExPW1/1.
23. The question now arises is whether plaintiff is entitled to the demolition of said unauthorized construction.
24. It is submitted by counsel for defendant no.4 that the plaintiff has prayed for demolition of construction made in black portion as shown in site plan ExPW1/1 but as per MCD report, the same has already been demolished and hence, nothing survives in the present suit. Per contra, counsel for plaintiff has submitted that the demolition has not been completely done and some portion is still lying undemolished.
25. Reference in this regard is required to be made to Delhi Special Provisions Act, 2011 which protects the unauthorized construction for the time being. The National capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act, 2017 has extended the said protection for a further period up to 31 st day of December 2020. Further it has also been observed in order dt. 30.05.16 passed u/s. 343, 344 of Delhi Municipal Corporation Act, 1957 that the construction on ground floor, first floor and second floor is protected under Delhi CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 13 of 22 Special Provisions Act, 2011 amended time to time till 31.12.17. However, the property in question is constructed up to 3 rd floor. It has to be seen whether the plaintiff is entitled to get the decree of mandatory injunction for demolition of 3rd floor, the relief of injunction being equitable relief and if it comes on record that the plaintiff has not come with clean hands, he will not be entitled to the relief claimed.
26. The power which the court possesses of granting injunctions (however salutary) should be very cautiously exercised and only upon clear and satisfactory grounds, otherwise it may work the greatest injury. Injunctions are a form of equitable relief and have to be adjusted in aid of equity and justice to the facts of each particular case. An injunction is not and cannot be granted as a matter of course.
27. Courts will refuse to provide equitable relief under the "unclean hands" doctrine when the party seeking such relief has engaged in inequitable activities.
28. The familiar maxim of equity that "he [or she] who comes into equity must come with clean hands" is "one of the elementary and fundamental conceptions of equity jurisprudence." The purposes of equity, and its defenses in particular, were to stop strategic behavior and safeguard the court. In this vein, the maxim of "he [or she] who CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 14 of 22 comes into equity must come with clean hands" developed to "protect the court against the odium that would follow its interference to enable a party to profit by his own wrongdoing." It follows that the defense serves two fundamental purposes. It protects judicial integrity and promotes justice. The application of unclean hands protects judicial integrity "because allowing a plaintiff with unclean hands to recover in an action creates doubts as to the justice provided by the judicial system." Thus, the court acts to protect itself and not the opposing party. Safeguarding the sanctity of the legal system may also be the reason why so many federal courts sitting in diversity instinctively apply federal law without an Erie analysis to determine the applicability of unclean hands in cases seeking legal relief. The clean hands doctrine promotes justice by preventing "a wrongdoer from enjoying the fruits of his [or her] transgression" or, put differently, making the wrongdoer litigant answer for his [or her] own misconduct in the action.
29. Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co. 324 U.S. at 814 is still the leading case on the unclean hands defense throughout the country. The Supreme Court explained the rationale of unclean hands: "That doctrine is rooted in the historical concept of court of equity as a vehicle for CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 15 of 22 affirmatively enforcing the requirements of conscience and good faith."
30. The Hon'ble Apex Court has observed in judgment reported in AIR 2003 SCW 1561 titled as Canara Bank v Debasis Das and Ors. as:
'A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and reasonable manner.'
31. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. It is well known maxim of equity that "He who comes to the court must come with clean hands," or as otherwise expressed, "he that had committed inequity shall not have equity."
32. The Hon'ble Delhi High Court in Kimti Lal Rahi v. Union of India, AIR 1993 Delhi 211, has held that:
"16. It is well settled that one who claims equity must do equity. Estoppel springs from equity doctrine. If the application of the principle leads to results which are unjust and opposed to fair play and justice, the doctrine will have no application in a given CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 16 of 22 case.'
33. In the case of Champa Arora & Ors. vs. Shiv Lal Arora & Ors 2001 VII AD (Delhi) 602, Hon'ble High Court of Delhi has held that:
"It is a settled law that a person, who seeks equity, must come with clean hands. A litigant who suppresses a fact from the court, indeed looses the equitable right to seek an equitable relief of ad interim injunction.''
34. The Hon'ble High Court of Kerala in the matter reported in AIR1989 Ker. 188 observed that:
"It has to be remembered that a suit for injunction is an equitable & the primary requirement for grant of an equitable remedy is that the person who claims the remedy must come before the Court with clean hands. He must show equity & must show his entitlement under the equity the relief he has sought. Fairness and good faith are two important things required for obtaining any equitable relief. If plaintiff in his conduct against defendant, has acted in an unfair or in inequitable manner, he would not be entitled to injunction.'
35. Regard must also be had in this regard to the decision of Leela v.
CS No. 95336/16DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 17 of 22 Ambujakshy , AIR 1989 Laker 308 wherein the Hon'ble Kerala High Court observed:
"Further injunction is an extraordinary discretionary relief. A person approaching the court for such a relief must come with clean hands and he must do equity. He who seeks equity must do equity."
36. In case titled S.P. Chengalvaraya Naidu (dead) by LRs v Jaganath (dead) and Ors. AIR 1984 SC 853, Hon'ble Supreme Court observed as follows:
"The Courts of Law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Propertygrabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient level to retain the illegal gains indefinitely."
37. In case titled "C.B. Aggarwal Vs. P. Krishna Kapoor" AIR 1995 Delhi 154, Hon'ble High Court observed as follows:
"It is true that in a civilized society, legal process is the machinery for keeping order and doing justice. It can be CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 18 of 22 used properly or it can be abused. It is used properly when it is invoked for vindication of men's right and enforcement of just claims. It is abused when it is diverted its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end."
38. In the present case, status report has been filed by MCD on 30.05.19 and 24.07.19 alongwith a rough sketch map in which it has been stated that portions marked as A, B & C on the rough sketch are unauthorized and have already been booked vide file no.B/UC/KBZ / 2012 /98 dt. 03.04.12. The counsel for plaintiff vide his statement dt. 08.08.19 has stated that portion shown as Mark A in the said rough sketch is in the possession of plaintiff. This clearly shows that even the plaintiff is guilty of indulging in unlawful activities as the portion occupied by him is an unauthorized construction. Though, the construction of plaintiff might also be protected under Delhi Special Provisions Act, 2011, the same does not make the plaintiff entitled to the relief claimed as the said act only protects the unauthorized construction from demolition for the time being and does not remove the illegality attached with it. It is also to be noted that no appeal has been filed by the plaintiff against the demolition order but rather the CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 19 of 22 plaintiff made an attempt to challenge the same before this court which was dismissed vide order dt. 11.12.12 on account of lack of jurisdiction. Thus, even if, the unauthorized construction in the black portion has not been completely demolished as alleged by the plaintiff, in view of above discussion, as well as under section 41 (i) of Specific Relief Act, the plaintiff is not entitled to the relief claimed.
39. Thus, in view of above discussion, this issue is decided against the plaintiff and in favour of defendants.
ISSUE NO.2 : Whether suit of the plaintiff is without any cause of action ?OPD
40. The burden to prove this issue is on defendant.
41. However, no evidence has been led on behalf of defendant to discharge the burden.
42. The expression "cause of action" means the circumstances forming the infraction of the right or the immediate cause for the action. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises cause of action. A suit is always based on a cause of action. A cause of action is a bundle of facts which taken with the law applicable, gives the plaintiff a right to relief against the defendants. It CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 20 of 22 must include some act done by the defendant since in the absence of an act no cause of action can possibly accrue. It has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. The term "cause of action" has been defined in ABC Laminart Pvt Ltd. Vs. AP Agencies Salem (1989) 2 SCC 163 as every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court.
43. Hence, in the absence of any evidence, this issue is decided against the defendants and in favour of plaintiff.
ADDITIONAL ISSUE : Whether the construction raised by defendant no.4 is legal and is repair ? OPD4
44. Burden to prove this issue is on defendant no.4.
45. However, no evidence has been led on behalf of defendant no.4. Rather, an application u/o 14 rule 5 CPC has been filed on behalf of defendant no.4 for deletion of this issue which was dismissed vide order dt. 18.01.16. Further it has been observed while giving finding on issue no.1 that construction raised by defendant no.4 is illegal and is definitely much more than repairs. Hence, this issue is decided in favour of plaintiff and against the defendant no. 4.
CS No. 95336/16DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 21 of 22 RELIEF:
46. In view of above discussion, the suit of the plaintiff is dismissed.
47. No order as to costs.
48. Decree sheet be prepared accordingly.
49. File be consigned to the record room after necessary compliance.
Digitally signedNEHA by NEHA MITTAL Announced in the open MITTAL Date: 2019.11.22 10:45:18 +0530 Court on 21.11.19 (Neha Mittal) Civil Judge10 (Central) THC/Delhi CS No. 95336/16 DEVENDER KUMAR Vs. VIJAY KUMAR Page No. 22 of 22