Delhi District Court
Shri Dharambir Bali vs Smt. Alka Mohan on 8 October, 2007
1
IN THE COURT OF Sh. SANJEEV AGGARWAL
ADLL. SR. CIVIL JUDGE : DELHI.
MCA 119/2005
Shri Dharambir Bali
Son of Late Shri Bal Mukand Bali
R/o 4/11, West Patel Nagar
New Delhi110008
...APPELLANT
V e r s u s
1. Smt. Alka Mohan
W/o Sh. A. C. Mohan
R/o 4/11, West Patel Nagar,
New Delhi110008.
2. Smt. Minakshi Vaid Nee Dhingra
L125, Kapil Vihar, Sector 21C
Faridabad (Haryana) ...RESPONDENTS
Date of institution : 16.05.2005
Judgment reserved on:08.10.2007
Date of decision:08.10.2007
J U D G M E N T
1 By this judgment, I will dispose off an appeal preferred by the appellant against the impugned order dated 05.04.2005, whereby the application of the appellant U/O 39 Rule 2A CPC read with Section 12 of the Contempt of Court Act for initiating contempt proceedings against the respondents was dismissed by the ld. trial court.
22 Brief facts, as can be culled out from the appeal are; that the respondent No.1 had filed a suit for recovery of possession and mesne profits against the appellant in the year 1985. Thereafter, appellant had also filed a suit against the respondents for declaration, possession by partition of immovable property and for rendition of accounts and vide order dated 25.8.89, both the suit were consolidated and it was ordered that the suit filed by the respondent No.1 shall be treated as a leading case. On 7.8.2000, an application U/O 39 Rule 1 & 2 CPC was filed by the appellant for seeking interim injunction against the respondent No.1 from making additions or alterations on second floor of property in question i.e. 4/11, West Patel Nagar, New Delhi110008 or to change in any way its structure shape and condition and in response to application of the appellant, the attorney and husband of the respondent No.1 stated before the Hon'ble court that he was doing only repairs and he had already removed ballies, put up for construction and will not do any construction, till disposal of above said application of the appellant, and it is stated that the appellant had also filed the photographs of the property as existing at that time. It is stated that after hearing the arguments on the above said application, the ld. trial court vide order dated 30.8.2000, restrained both the respondents from carrying out any 3 structural change or addition in the property in question till disposal of both the suits, which were consolidated.
3 It is further stated that the appellant had moved an application dated 25.9.2001 U/O 39 Rule 2A read with Section 151 CPC for initiating action against the respondent No.1 for having made additions and alterations in the property in violation of the order dated 30.8.2000 and that the appellant had also filed some more photographs showing the said additions/alterations. 4 It is further stated that the respondent No.1 had filed a reply thereto denying the said averments that she had committed any contempt of court and it was her stand that she was carrying out only reroofing which had gone old and leaking on the second floor. She also stated that there was no unauthorized construction, as shown in the layout as on 30.8.2001 alongwith the said reply the respondent No.1 had also enclosed a demolition order dated 9.10.2000 with respect to the unauthorized construction made by the respondent in the premises in question.
5 It is also stated that appellant herein filed a detailed rejoinder alongwith the said rejoinder he had moved an application U/O 26 Rule 9 CPC for appointment of Local Commissioner to inspect and report about the position of the property and he had also filed a site plan after the passing of 4 the interim order dated 30.8.2000. It is stated that after moving of the said application, respondent No.1 had also malafidely moved an application U/O 39 Rule 2A CPC and after hearing the counsel for both the parties, ld. trial court vide order dated 5.2.2005 came to the conclusion that said application of the appellant cannot be decided without leading of evidence on the question in issue "whether the plaintiff Smt. Alka Mohan gave any threat to the applicant to withdraw his suit for partition", and thereafter, the ld. lower court proceeded to decide the application of the appellant moved U/O 39 Rule 2A CPC, and ld. trial court on 5.4.2005 dismissed the application of the appellant with costs of Rs. 2000/ holding that the application had been moved only to harass the respondent No.1.
6 The appellant has assailed the said order in appeal on the following main grounds:
a) That the said order had been passed without giving any opportunity to the parties to lead evidence, to show that the respondent No.1 had in fact carried out additions and alterations after the passing of the order dated 30.8.2000, which was in defiance and violation of said order and constituted a contempt.
b) That the ld. trial court had failed to appreciate that the respondent 5 No.1 had proved on record the site plan showing the construction existing on the second floor of premises as Ex.RW3/31 and further the appellant had also filed a site plan alongwith application moved U/O 39 Rule 2A CPC clearly showing and marking in red the portion, where unauthorized and illegal construction had been made by the respondent No.1.
c) It is further stated that the the comparison of the two site plans filed on the trial court record, clearly shows that the respondent No.1 had made certain additions/alternations in violation of the order dated 30.8.2000 and ld. court had also failed to take into consideration the documents filed by the respondent No.1 alongwith her reply, which is a demolition order of the MCD with respect to the said fact.
d) it is stated that the said fact whether any contempt was committed or not could only be ascertained after the parties had given the opportunity to adduce their evidence. Therefore, it is stated that the said order deserves to be set aside.
7 Reply has been filed by the respondents stating that the said allegations are false and frivolous and no construction has been made by the respondents and it is stated that the said application is not maintainable and rather the appellant had in fact himself violated the order dated 30.8.2000 by 6 subletting the portion in his possession. All the allegations regarding the carrying of addition/alterations, as alleged have been vehemently denied. Hence it is stated that the order of the ld. trial court does not suffer from any infirmity and same be sustained.
8 I have heard ld. counsel for appellant and ld. counsel for respondents. I have gone through the grounds of appeal and the trial court record. 9 Ld. trial court vide order dated 05.04.2005 dismissed the application of the appellant U/O 39 Rule 2A CPC read with Section 12 of the Contempt of Court Act by following observations:
"I have heard the arguments made by both the parties and I have also perused the relevant photographs and records. The most relevant documents are the photographs filed by the applicant, because the applicant has filed two photographs, which are stated to be taken prior to order dated 30.8.2000, while three other photographs have been filed, which are stated to be taken after the stay order was passed and contempt was committed by the respondent. If, I see the photographs Marked as A & B, then from the perusal of these photographs, it is clear that some construction work was going on the second floor of the suit property, while after perusal of photographs marked as, C.D&E, it becomes clear that such construction was not completed except that the property has been given a new look by white washing and painting. No alleged additional room is found to be building on this suit property on the second floor, only thing that is in addition is covering some portion of open space with asbestos sheets. This is in itself does not amount to any structural change in the building"
Therefore, from the perusal of photographs relied upon by the applicant only. I do not find any structural changes made by the 7 respondent, after passing of stay order in the suit property and here I would further like to mention a letter dated 22.4.01, sent by applicant to the respondent. This letter in the second paragraph of it, makes it clear that, even as per the applicant respondent was unsuccessful in raising any unauthorised construction on the second floor of the suit property.
The applicant has not denied the genuinity of this letter and from the perusal and appreciation of these photographs and this letter, it becomes crystal clear that the present application has been moved without any basis and just to harass the respondent. In such circumstances application is dismissed with cost of Rs.2000/ to be paid to the respondent."
10 I have also perused the ld. trial court record. There is a letter written by the applicant to the respondent dated 22.4.2001, wherein it has been stated in Para 2 as under: "Your allegations about misusing the electricity are false and to your own knowledge and having been unsuccessful in raising unauthorised construction on the second floor, you have used this letter to pressurize me.
This letter had been sent by the appellant prior to the moving of the application in question, which application was moved before the trial court on 26.9.2001. This admission was taken into account by the ld. trial court, while dismissing the application in question of the appellant and the ld. trial court had also come to the conclusion, that after comparison of the previous photographs and the photographs of the alleged construction filed later on, 8 no alleged additional room was found to be built on the suit property on the second floor, only thing that is in addition is, covering of some portion of open space with asbestos sheets and this in itself does not amount to any structural change in the building, as observed in para 5. The said discussion of the ld. trial court is in confirmity with the letter/notice of demolition sent by the MCD to the respondents dated 9.10.2006, where also the MCD has stated regarding the unauthorised construction in the shape of verandah at second floor and there is no mention in the said demolition notice regarding the covering/construction of additional room, as stated in the application in question.
11 It is settled law, that the appellate court will not substitute discretion exercised by the trial court with its own discretion. It can do so only in cases, where there is a patent illegality or perversity in the order of the trial court. Further in this case, appellant has no where stated in his application the specific dates, month or time, when the said alleged construction had took place without which the application itself is vague . Accordingly, in view of afore going discussion, I do not find any infirmity or illegality, in the trial court order and same has been rightly passed by dismissing the application of the applicant U/O 39 Rule 2 A CPC. Consequently, the appeal is dismissed. The 9 trial court record be sent back alongwith a copy of this order and appeal file be consigned to Record Room.
Announced in the open court on 08.10.2007.
(Sanjeev Aggarwal) Addl. Senior Civil Judge : Delhi.
one spare copy attached.