Delhi District Court
Hari Simran Singh & Ors vs Sondhi Bros & Others on 21 September, 2011
1
IN THE COURT OF Ms. VEENA RANI : ADDITIONAL RENT
CONTROLLERcumCOMMERCIAL CIVIL JUDGEcum
ADMINISTRATIVE CIVIL JUDGE: NEW DELHI DISTRICT :
PATIALA HOUSE COURTS, NEW DELHI
Suit No:17/2011
Hari Simran Singh & Ors .....Plaintiff
V.
Sondhi Bros & Others .....Respondent
ORDER
1. Vide this order I shall decide the application u/o 39 rule 1& 2 CPC filed by the applicant/plaintiffs for restraining the defendant No:1(M/s Sondhi Bros), his agents, representatives, employees etc. from erecting any further damage or structural change in the interior or exterior of the suit property. Briefly stated the facts for the disposal of above application are as under:
2. It is stated by the plaintiffs that they are the owner of shop No:C21, Block C, Connaught Place, New Delhi, herein after will be referred as suit premises. It is further stated that suit premises was let out to the defendant No:1 at the monthly rent of Rs.307/ vide tenancy Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 2 agreement executed by the grandfather of the plaintiff No:1 Sh. S. Basakha Singh. Plaintiffs stated that defendants have already caused breaches in the suit premises where the local authority L&DO has issued a notice to the plaintiffs and raised penalty against the defendants. It is stated that plaintiff was informed on 28th February, 2011 that the defendant No:1 without the consent and knowledge of the plaintiffs has began to damage the internal structure of the suit premises. It is further stated that defendant No:1 was requested to stop the same but he die not pay any heed to the request of the plaintiffs and did not stop causing damage and changes in the suit premises. It is stated by the plaintiff that complaint were made to the SHO concerned of PS Connaught Place and NDMC but no action has been taken by them against the defendant No:1. Plaintiffs have stated that defendant No:1 acted without the due course of law, knowledge or consent from the plaintiffs or local authority, hence the present case.
3. Defendant No:1 filed WS and stated that defendant No:1 is an old tenant in the suit premises since the year 1929 but defendant No:1 has no privity of contract or relationship of landlord and tenant with Sh. Hari Simran Singh, therefore, the present case is bad for misjoinder of parties. It is stated that suit premises is very old one and the fittings etc had become worn out and required urgent replacement , Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 3 therefore, some interior renovation have been carried out by the defendant No:1 in the suit premises. It is further stated by the defendant No:1 that they have not carried out any structural additions or alterations or repairs etc in the tenanted premises and has also not demolished any walls or the existing structure and has not made any changes which are in the manner unauthorized or non permissible as per law. It is stated that interior renovation work has been carried out by the respondent No:1 as per the Building Bye Laws of the NDMC. It is stated that present case filed by the plaintiffs is false, frivolous and baseless and liable to be dismissed.
4. Defendant No:2/ NDMC also filed their written statement. It is stated by the NDMC that suit of the plaintiff is not maintainable against them as there is no cause of action for filing the present suit against them. It is stated that a complaint regarding the suit premises was received by the NDMC and accordingly on 432011 the suit premises was inspected by the officials of the NDMC and during the said inspection it was found that party was renovating their premises like plastering work, fall ceiling work and repairing mezzanine without prior approval of NDMC. It is further stated that suit premises was again inspected by the officials of NDMC on 1432011 and party was found erecting an aluminum partition and replacing the gate with Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 4 rolling shutter without prior approval of NDMC, accordingly a show cause notice dt.15032011 under section 248 of NDMC Act was issued to the owner/occupier of the suit premises.
5. Defendant No:3, Heritage Conservation Committee has also filed its written statement and raised preliminary objection that they are not necessary party to the present suit and suit is bad for misjoinder of parties. It is stated that answering defendant No:3 has no powers or authority to take any action penal or otherwise against the defendant No:1 for violations, if any, nor it is within the purview or functions of the defendant No:3. It is further stated that whenever any proposal as required under the Delhi Building Bye laws is received by them , it renders it advice to the authorities concerned under the said Building Bye laws, 1983. It is stated that in the present case no proposal has been received from any one by the answering defendant No:3.
6. Defendant No:5 also filed written statement in the present case. It is stated by the defendant No:5 that plaintiffs are the colessees of C2, Connaught Place, New Delhi and the suit property stands mutated in favour of plaintiffs i.e S. Harisimran Singh and Smt. Amarjit Kaur on 21122004. Defendant No:5 stated that they had issued a breach notice to the plaintiff against the breaches conducted in the suit property on various dates but last it was issued on 11101999. It is Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 5 stated that substantial changes made to the suit premises are contrary to the terms of the perpetual lease deed executed by the L&DO and if the same are not removed by the lessee or colessees , they are liable to pay the damages charges for the same.
7. Vide order dt.24052011, this court had appointed Kumari Indu Ranjan, Advocate as the Local Commissioner who carried out the site inspection and submitted her report of the inspection.
8. I have heard ld. Counsel for the parties and perused the record carefully. I have also carefully perused the report filed by the Local Commissioner.
9. The case of the plaintiff is that the defendant No:1 being his tenant in the suit property is carrying on addition alteration in the exterior and interior of the suit property without any approval or consent , neither from the landlord nor from the NDMC and L&DO. The carrying of construction work by defendant No:1 is causing substantial damage to the suit property.
10. On the other hand, it is the averred by the defendant No:1 that he is carrying only renovation work which comes within the permissible provision of the Building Bye Law no:6:4:1. It is further averred that for carrying the aforementioned renovation work, the approval of the NDMC as well as plaintiff is not required. Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 6
11. The stand of the NDMC is that after getting the complaint of the suit premises, the same was being inspected by it twice and it was found that the defendant No:1 renovating their premises by doing plastering work and repairing of mezzanine floor, false ceiling work. The site was again inspected by it on 1432011 and it was found that defendant No:1 has carried an aluminum partition and replacing the gate with rolling shutter. It is also stated by the NDMC that all the aforementioned work has been done by the defendant No:1 without the approval of the NDMC, therefore, a show cause notice u/s 248 of NDMC was issued to the defendant No:1 on 1532011.
12. The defendant No:5 L&DO has submitted through its written statement that inspection of the suit property was done on various dates and on inspection, it was found that huge unauthorized construction was done and substantial changes made to the suit premises contrary to the terms of the Perpetual Lease Deed executed by the L&DO. The notice was issued by the NDMC shows that certain breaches have been done by the defendant No:1.
13. The defendant No:3 however submitted that neither it has any power to take any action against the defendant No:1 nor it it within the purview or functions of the defendant No:3, therefore , the suit of the plaintiff is bad for misjoinder of the parties. Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 7
14. I have gone through the relevant record of the case as well as report filed by the Local Commissioner alongwith the photographs.
15. 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.
16. 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 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 Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 8 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."
17. 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 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 Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 9 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 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 Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 10 sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
18. 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."
19. The defendant No:1 has admitted that certain renovation work was carried out by him but he denied that any structural changes or damages has been done by them to the suit property. They have specifically averred that the suit property was in bad condition, therefore, renovation work was required, accordingly same was done Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 11 within the permissible limits.
20. On perusal of the Local Commissioner's report and photographs filed by her, it could be prima facie viewed that in the suit premises substantial changes have been made. However, these changes are in the nature of renovation or structural change in the exterior or interior of the suit property that could only be seen at the time of evidence.
21. The NDMC, with regard to the aforementioned renovation in the suit property, has already issued show cause notice u/s 248 of the NDMC Act.
22. After considering the arguments of the parties, I am of the considered view that the defendant No:1 has prima facie done certain breaches with respect to the suit property.
23. In view of the discussion made above , the application of the plaintiff u/o 39 rule 1& 2 CPC stands allowed and the defendant No:
1(M/s Sondhi Bros), his agents, representatives, employees etc. are restrained from erecting any further damage or structural changes in the interior or exterior of the suit property bearing No:C21, Block C, 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.
Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others 12
24. Be put up for documents, A/D and issues on 09112011. Announced in the open court on this 21st day of September , 2011. (VEENA RANI) ARC/ACJ/CCJ/New Delhi Suit No:17/2011, Hari Simran Singh & Ors V/s Sondhi Bros & Others