Delhi District Court
Jagdish Kumar vs Brahmdev And Ors on 3 June, 2024
IN THE COURT OF SH. DEEPAK VATS
ASCJ-CUM-JSCC-CUM-GJ
DISTRICT: SOUTH, SAKET COURTS, NEW DELHI
CS SCJ 729/18
SH. JAGDISH KUMAR VS. SH. BRAHMDEV & ORS.
SH. JAGDISH KUMAR,
S/o Late Sh. Ramdev,
C-I/1045, First Floor, J. J. Colony,
Madangir, Dr. Ambedkar Nagar,
Sector-IV, Near Chhoti Masjid,
New Delhi-110062 ..............Plaintiff.
Versus
1. SH. BRAHMDEV,
S/o Late Sh. Ramdev,
C-I/1045, Second Floor, J. J. Colony,
Madangir, Dr. Ambedkar Nagar,
Sector-IV, Near Chhoti Masjid,
New Delhi-110062
2. DY. DIRECTOR(JJR/PIO)
DELHI URBAN SHELTER IMPROVEMENT BOARD,
GOVT. OF NCT OF DELHI
Room no. 10, Punarwas Bhawan,
IP Estate, ITO,
New Delhi-110002
E-mail ID:[email protected]
Phone: 011-23379626, Fax:011-23370965
Also at:
DUSIB (South Zone)
Community Hall, First Floor,
Dakshinpuri, New Delhi-110062.
3. CHARANJIT KUMAR,
S/o Late Sh. Ramdev,
R/o 79-S-2,
Gyan Khand-I,
__________________________________________________________________________________________
CS SCJ no.729/18
Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 1 of 19
Indirapuram, Ghaziabad, Uttar Pradesh-201010
Mobile No. 9810929343
4. ARJUN SINGH,
S/o Late Sh. Ramdev,
R/o P-66, Chittranjan Park,
New Delhi-110019
Email: [email protected]
Mobile No:9971722744
5. RUKMANI DEVI
S/o Sh. Goverdhan Choudhary,
Village Ghazipur,
Near Container Depot,
Ghazipur, New Delhi-110096
Mobile No:9971289626 .............Defendants
SUIT FOR INJUNCTION UNDER THE SPECIFIC RELIEF ACT,
1963 READ WITH RELEVANT PROVISIONS OF THE CODE OF
CIVIL PROCEDURE, 1908.
Date of Institution : 10.08.2018
Arguments heard on : 06.05.2024
Date of pronouncement : 03.06.2024
JUDGMENT
1. Vide this judgment I propose to dispose of the suit of the plaintiff filed for injunction under The Specific Relief Act, 1963 against the defendants.
PLAINT
2. Shorn of unnecessary details, the facts of the present case are that the father of the plaintiff namely Sh. Ramdev was alloted __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 2 of 19 camping plot no. C-I-1045 measuring 25 sq. yds., J. J. Colony, Madangir, Dr. Ambedkar Nagar, New Delhi (hereinafter referred to as 'suit property') by MCD on 15.06.1963 on license basis. The father of the plaintiff took possession of the said plot and started paying monthly license fees as per terms and conditions of license and built a superstructure comprising of ground floor and barsati floor. In the year 1990, owing to lack of space, the father of the plaintiff once again constructed first floor on the suit property and barsati floor over the first floor. The family of plaintiff has been residing in the suit property since its construction. The parents of plaintiff expired and the ground floor and second floor was occupied by defendant no. 1 (brother of plaintiff) and first floor was occupied by plaintiff. The other LRs of father of plaintiff have been residing in some other property.
3. It is averred that earlier the Slum and J.J. Department of MCD was primarily responsible for improving the quality of the life of the slum and J.J. dwellers in Delhi including the area in which suit property lies. Thereafter, the same became the responsibility of DUSIB i.e. defendant no. 2.
4. It is alleged that the first floor of the suit property inhabited by the plaintiff's family is under imminent threat of collapse due to seepage from all corners emanating from the second floor of the suit property which is in occupation of defendant no. 1. The plaintiff complained regarding seepage to SDMC vide complaint dated 16.03.2016, 18.03.2016, 13.04.2016, 02.08.2016 and 12.07.2018 but no action was taken by MCD regarding the same. It is further alleged that the plaintiff had on numerous occasion requested the defendant no. 1 __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 3 of 19 also to repair his portion of suit property to prevent seepage or to allow the laborers employed by plaintiff to have access to second floor and ground floor to stop the seepage and to bear the proportionate cost of repair. However, defendant no. 1 has refused to do the same and he has locked the staircase entrance of second floor due to which the repair work in the suit property could not be carried out.
5. The plaintiff issued a legal notice dated 27.03.2017 to defendant no. 1 wherein he mentioned certain issues qua the suit property namely, 1) the electricity current flows inside the walls of first floor in rainy season due to seepage, 2) during rainy season, when the water spreads all across the terrace, walls and ground floor, entire ground floor gets flooded due to which the foundation of suit property becomes weak, 3) dirty toilet water from second floor falls directly upon the occupants of first floor i.e. plaintiff and his family and 4) damage has been caused to the first floor terrace of the suit property due to seepage on the second floor.
6. It is averred that despite the service of said legal notice, no action has been taken by defendant no. 1 and defendant no. 1 has not agreed to bear the proportionate cost of the repair and has himself also not carried out any repair of the suit property. It is further alleged that despite various complaints to the authorities, no action has been taken by them and the suit property has been reduced to a dilapidated state and may collapse anytime. On the aforementioned pleadings, the plaintiff has sought the following reliefs:
"i). A decree of mandatory injunction against the defendant no.2 or their parent authorities or authorised representatives, __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 4 of 19 their nominee(s), agent(s), any court appointed local commissioner appointed in this respect, etc., and in favour of the plaintiff, to conduct a survey of the suit property for suggesting and carrying out repairs after preparing suitable report(s) after periodical survey regarding the status of the condition of the Suit Property which falls under the jurisdiction of DUSIB in respect of the criteria's mentioned in the provisions of the Slum Areas (Improvement & Clearance) Act, 1956 prior to the enactment of the DUSIB Act, 2010 and/or the DUSIB Act, 2010, whichever is applicable in respect of the Suit Property and submit its report to this learned Court upon the suitability of the suit property with regard to the condition in respect of repair, stability, freedom from damp, natural light and air, water supply and drainage and sanitary convenience, facilities for storage, preparation and cooking of food and for disposal of waste water and whether the property being the Suit Property herein may be deemed to be unfit for human habitation and if it is so far defective in one or more of the said matters then is the same not suitably fit for occupation in that matter unless repaired or renovated; and/or;
ii) A decree of mandatory injunction against the defendant no.1 and in favour of the plaintiff in allowing the plaintiff, his repairmen, labourers, workers to access the second floor portion and the ground floor portion both in the possession of the defendant no.1, or by a court appointed local commissioner through the common staircase and the entrance of the second floor of the suit property and also direct the defendant no.1 to provide access to the ground floor of the suit property for providing access to either the repairmen of plaintiff or to the court appointed Local Commissioner from making a reasonable estimate of the costs and expenses which may be incurred __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 5 of 19 on carrying out the repair of the portions from where seepage is emanating from the second floor of the suit property and also the ground floor thereof and is spreading to the rest of the suit property;
iii) A decree of mandatory injunction against the Defendant No.1 and in favour of the Plaintiff, to contribute proportionate share of the repairing, renovation costs and expenses estimated by the Plaintiff or by a court appointed local commissioner in respect of the Ground and/or Second Floor portion and allowing the repairmen, labourers, workers to carry out repair, renovation work upon the Second Floor and the Ground Floor with a view to plug the source of the seepage emanating from the Ground and Second Floor of the Suit Property and prevent any further seepage on the Suit Property; and
iv) A decree of ex-parte, ad-interim temporary injunction in favour of the Plaintiff and against the individual Defendant Nos. 1, 3, 4 and 5 thereby restraining/ prohibiting them from either individually or collectively or through their agents, representatives, attorneys, nominees, etc., and any other persons claiming to be acting on their behalf either individually or collectively, from transferring, alienating, mortgaging or creating third party interest upon the Suit Property or part therefore which shall amount to altering with the settled possession of the occupants including that of the plaintiff upon the suit property and/ or create third party interest thereon until the final disposal of the instant suit."
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 17. WS was filed by defendant no. 1. He took certain preliminary objections namely the suit is without any cause of action, the plaintiff's father had already disowned the plaintiff and thus, __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 6 of 19 plaintiff has no locus standi to file the present case; the suit has not been valued property etc. On merits, the defendant no. 1 has simply denied all the allegtions made in the plaint. Apart from denial, there is nothing mention in the WS of defendant no.1.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 28. In the WS, defendant no. 2 has stated that the functions of defendant no. 2 pertain to removal and resettlement of Juggi-Jhopri Bastis within the territorial jurisdiction of Government of NCT of Delhi. The said functions and jurisdiction of DUSIB extends to survey, improvement, re-development etc. of Juggi-Jhopri Bastis and slum areas. Upon the settlement pursuant to a scheme, the colony no longer remains a Juggi-Jhopri Basti and hence, falls outside the purview of DUSIB/defendant no. 2.
9. It is averred that vide circular no.
D/195/ADDL.COM.(E)/97 dated 12.06.1997 and circular no. D/328/ADDL.CM (E)/97 dated 15.09.1997 issued by MCD, it was made clear that building control activities in all the J.J. and Resettlement colonies would be controlled by Building Department of MCD whereas open spaces in J.J. and Resettlement colonies would be protected by the General Wing of MCD i.e. DUSIB or erstwhile Slum and J.J. Department of MCD. Hence, matter relating to built up property/unauthorised construction in J.J. and Resettlement colonies falls under the jurisdiction of MCD Building Department and not DUSIB.
10. It is admitted that suit property was allotted to the father of __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 7 of 19 plaintiff on license basis. The area where the suit property is located is a resettlement colony and no longer a Juggi-Jhopri Basti as defined in the DUSIB Act. Therefore, the functions prescribed under the DUSIB Act in relation to Juggi-Jhopri Basti do not extend to the area where the suit property is located. It is further stated that otherwise also, the building related matters come under the jurisdiction of MCD and not of DUSIB. Hence, it is prayed that the suit be dismissed.
11. ISSUES After completion of pleadings, the following issues were framed:
1.Whether the plaintiff is entitled to a decree of permanent and mandatory injunction against the defendant No.2 or their parent authorities or authorised representatives, their nominee (s) agents (s) etc. as stated in the prayer clause (i) of the plaint ? OPP
2.Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant No.1 and in favour of the plaintiff as stated in the prayer clause (ii) of the plaint? OPP
3.Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant No.1 and in favour of the plaintiff to contribute a proportionate share of the repairing, renovation costs and expenses estimated by the plaintiff or by a court appointed local commissioner in respect of the ground floor / or second-floor portion etc. as stated in the prayer clause (iii) of the plaint ? OPP
4.Whether the plaintiff is entitled to a decree of permanent and mandatory injunction against the defendants No.1, 3, 4 and 5 thereby restraining/prohibiting them from either individually or collectively or through their agents, representatives, attorneys, __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 8 of 19 nominees, etc. and any other persons claiming to be acting on their behalf either individually or collectively from transferring, alienating, mortgaging or creating third party interest upon the suit property as stated in the prayer clause (iv) of the plaint? OPP
5.Whether the area in which suit property is located is Jhuggi Jhopri Bastis? OPD-2
6.Whether the present suit is without any cause of action and is not maintainable under Order VII Rule 11 CPC? OPD-1.
7.Whether the plaintiff has no locus standi to file the present suit as he has no right, title or interest in the suit property? OPD-1.
8.Relief.
It is pertinent to note that vide order dated 03.06.2024 issue no. 5 was deleted on request of Ld. Counsel for plaintiff and Ld. Counsel for defendant no. 2 who is the main contesting defendant. Accordingly, no finding is made on issue no. 5.
PLAINTIFF'S EVIDENCE
12. In ex-parte evidence in order to prove its case the plaintiff got himself examined as PW-1 and tendered his affidavit Ex. PW1/A. PW-1 reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under :-
1.Ex. PW1/1(colly 3 pages) (Original site plan), 2.Ex.
PW1/2 (OSR)(Copy of Adhar Card of plaintiff), 3.Ex.PW1/3 (OSR) (Copy of Adhar Card of plaintiff's wife), 4.Ex.PW1/4 (OSR)(Copy of Adhar Card of plaintiff's son, 5.Ex.PW1/5 (OSR) (Copy of electricity Bill of first floor of the suit property dated 15.02.2017, 6.Ex.PW1/6 (OSR) (Copy of Delhi Jal board water bill dated 27.07.2018), 7.Ex. PW1/7(colly 2 pages) (Copy of the allotment letter of the suit property __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 9 of 19 dated 15.06.1963. issued to the father of the plaintiff), 8.Ex.PW1/8 (Copy of Letter for correction of the name of the father of the plaintiff as licensee dated 29.09.2005), Ex. PW1/9(OSR) (Copy of death certificate of Mother Smt. Mangli Devi), 10.Ex.PW1/10(OSR) (Copy of death certificate of Father Sh. Ramdev), 11.Mark A (Copy of letter from DLSA Patiala House Court regarding the family dispute dated 17.10.2003 (de exhibited as Ex.PW1/11), 12.Ex.PW1/12 (OSR) (Copy of complaint dated 16.03.2016), 13.Ex.PW1/13 (Copy of complaint dated 18.03.2016), 14.Ex.PW1/14 (Copy of status report of complaint dated 13.04.2016), 15.Ex.PW1/15 (Copy of complaint dated 02.08.2016. (OSR) (colly 2 pages), 16.Ex.PW1/16 (Copy of complaint dated 12.07.2018), 17.Ex.PW1/17(OSR) (Colly 7 pages) (Copy of Legal Notice dated 27.03.2017, 18.Ex.PW1/18(colly 31 pages) (Copy of plaint dated 15.05.2017), 19. Ex.PW1/19(OSR) (Colly 2 pages) (Copy of RTI application dated 17.10.2017), 20. Mark B (Copy of transfer of application by SDMC to DÜSIB dated 24.10.2017 (de exhibited as Ex.PW1/20), 21.Ex.PW1/21 (OSR) (Copy of RTI response letter dated 08.12.2017), 22.Ex.PW1/22(OSR) (Copy of the first appeal filed by the plaintiff under RTI Act, 2005), 23. Ex.PW1/23(OSR) (Copy of Notice of the first appeal hearing order from the office of the First Appellate Authority dated 10.01.2018), 24.Ex.PW1/24 (Copy of order dated 30.01.2018 passed by the DUSIB), 25.Ex.PW1/25 (colly 2 pages) (Copy of Notice under Section 80 of C.P.C),
26.Ex.PW1/26(OSR) (colly 6 pages) (Copy of photographs of the suit property and 27.Ex.PW1/27 (OSR) (Copy of DLSA appointment letter dated 30.11.2016).
The witness was cross-examined by Ld. Counsel for defendant no. 2 and defendant no. 1 and 3. In his cross-examination, __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 10 of 19 witness admitted that the title of the property is not under his name and the same is in the name of the father of the plaintiff. Further, he deposed that at the time of allotment, only a plot had been alloted and there was no permanent construction on the suit property. He deposed that the suit property was never converted to free hold in his name. He further deposed that he has never procured any NOC from any of his siblings however, he had submitted an application for transferring the suit property to freehold with the defendant no. 2. He deposed that he had done the transfer work and applied on behalf of all the legal heirs.
DEFENDANT NO. 2's EVIDENCE
13. In defense, Sh. T. R. Meena was examined as DW2/1 and tendered his affidavit of evidence as Ex. DW1/1. DW2/1 reiterated and reaffirmed the facts mentioned in the WS on oath. Certain documents were also exhibited which are as under :-
1.Mark DW2/1-A (Copy of notification dated 30.08.2010), 2.Mark DW2/1-B (Copy of circular dated 12.06.1997), 3.Mark DW2/1-C (Copy of circular dated 15.09.1997), 4.Mark DW2/1-D (Copy of allotment letter dated 15.06.1963), 5.Mark DW2/1-E (Copy of correction corrigendum dated 29.09.2005), 6.Mark DW2/1-F (Copy of order dated 18.04.2013), 7.Mark DW2/1-G (Copy of letter dated 10.08.2018) and 8.Mark DW2/1-H (Copy of notification/Guideline for Mutation transfer of properties alloted by Slum and JJ Wing dated
14.07.1987).
The witness was cross-examined by Ld. Counsel for plaintiff. In his cross-examination, he deposed that he is not a part of the division of DUSIB which looks after the conversion of plot to freehold. He deposed that the duty to check unauthorized __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 11 of 19 construction/encroachment in Madangir J. J. Colony is that of MCD and not of DUSIB. It is pertinent to note that defendant no. 4 and 5 were proceeded exparte vide order dated 15.12.2018 and defendant no. 1 and 3 were proceeded exparte vide order dated 09.10.2023. Thereafter, DE was closed and matter was listed for final arguments.
14. Final arguments heard on behalf of both the parties. The court has gone through the record carefully. The findings of the court are as below:
FINDINGS
15. ISSUE NO. (1), (2), (3) AND (4).
1.Whether the plaintiff is entitled to a decree of permanent and mandatory injunction against the defendant No.2 or their parent authorities or authorised representatives, their nominee (s) agents (s) etc. as stated in the prayer clause (i) of the plaint ? OPP
2.Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant No.1 and in favour of the plaintiff as stated in the prayer clause (ii) of the plaint? OPP
3.Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant No.1 and in favour of the plaintiff to contribute a proportionate share of the repairing, renovation costs and expenses estimated by the plaintiff or by a court appointed local commissioner in respect of the ground floor / or second-floor portion etc. as stated in the prayer clause (iii) of the plaint ? OPP
4.Whether the plaintiff is entitled to a decree of permanent and mandatory injunction against the defendants No.1, 3, 4 and 5 thereby restraining/prohibiting them from either individually or __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 12 of 19 collectively or through their agents, representatives, attorneys, nominees, etc. and any other persons claiming to be acting on their behalf either individually or collectively from transferring, alienating, mortgaging or creating third party interest upon the suit property as stated in the prayer clause (iv) of the plaint? OPP
16. Issue no. 1, 2, 3 and 4 are taken up together as they involve similar questions of facts and law.
Before proceeding to discuss the issues, it is apposite to mention certain facts which are not disputed in the present case. It is not disputed that the suit property was allotted to the father of plaintiff and defendant no. 1, 3, 4 and 5 i.e. late Sh. Ramdev by MCD on 15.06.1963 on license basis vide allotment letter Ex. PW1-7 (also Mark PW2/1-D). It is further not disputed that only a vacant plot was alloted to father of plaintiff and that there was no permission to raise any permanent construction on the suit property. It is further not disputed that the allotment of the father of the plaintiff or his LRs i.e. plaintiff, defendant no. 1 and defendant no. 3 to 5 has not yet been converted into freehold. Thus, as such, the father of the plaintiff or his LRs could not have raised any permanent construction in the suit property and by admittedly doing the same, the plaintiff's father/his LRs (including the plaintiff) have themselves violated the license agreement/allotment conditions and thus, it can be said that the plaintiff has not come to this court with clean hands. The plaintiff or his father had first raised unauthorized construction in the suit property in violation of the allotment letter and now the plaintiff wants the survey to be conducted by the concerned authorities and repair be done in the suit property. It is clear that the plaintiff is trying to take advantage of his own wrong. __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 13 of 19 Section 41 (i) of the Specific Relief Act, 1963 provides that an injunction cannot be granted to the plaintiff when the conduct of the plaintiff or his agents has been such as to dis-entitle him to the assistance of the court. The case of plaintiff is directly hit by Section 41
(i) of Specific Relief Act as the plaintiff or his predecessor has raised unauthorized construction in the suit property against the terms and conditions of the allotment letter. Thus, in the opinion of this court, the plaintiff being himself the wrong doer is not entitled for the relief claimed.
17. Moreover, defendant no. 2/DUSIB has clearly stated in its WS and in its evidence that as per circular no. D/195/ADDL.COM.(E)/97 dated 12.06.1997 and circular no. D/328/ADDL.CM (E)/97 dated 15.09.1997, building control activities in all the JJ & Resettlement colonies would be looked after by the building department, MCD and DUSIB has no jurisdiction to control the same. The plaintiff has not impleaded MCD despite objection being taken by DUSIB/defendant no. 2 in the WS itself. The plaintiff has not filed any replication to the WS of DUSIB/defendant no. 2. Thus, it may be said that the averment of defendant no. 2 in this regard is deemed to be admitted by the plaintiff. Moreover, no questions have been asked by Ld. counsel for the plaintiff to witness from DUSIB to prove that DUSIB has jurisdiction to control building activities. Ld. counsel for plaintiff has simply put a suggestion to the witness regarding the same. It is settled law that suggestions cannot take place of proof and they in themselves are not enough to prove a fact. (Umedmiya R Rathod & Ors. Vs. State of Gujarat" Gujrat HC, letter patent appeal No. 473 of 1996, decided on 04.08.2013).
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Page no. 14 of 19
18. Further, the plaintiff has not placed on record any document which shows that DUSIB has jurisdiction to control unauthorised construction in the suit property. It may be said that the plaintiff has failed to prove that DUSIB has jurisdiction to carry out a survey of the suit property to determine the strength and stability of the same. Since MCD, which had this jurisdiction, has not been impleaded, no relief in this regard can be granted.
19. Another important fact is that the plaintiff has though claimed that the suit property is in a dilapidated condition and there is a threat of collapse of the suit property, he has not placed on record any report regarding the stability of the building. The plaintiff has not examined any expert to prove that the building in suit property is in dilapidated condition. All that the plaintiff has done is to make bald averments in this regard without any proof of the same. It is not out of place here to mention that the plaintiff has placed on record photographs Ex. PW1/26 of the suit property, however, there is nothing in the said photographs which could suggest that the building in the suit property is on the verge of collapse or the same is in dilapidated condition. From the photographs, it appears that there is some seepage problem in the suit property, however, no finding regarding the stability of building can be given solely on the basis of the said photographs. Though the defendant no. 1 and defendant no. 3 to 5 are exparte in the present case, it is settled law that the plaintiff must stand on his own legs and prove his case. In the case of 'Maya Devi vs Lalta Prasad AIR 2014 SC 1356', Hon'ble Supreme Court of India observed as follows:
"18......The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 15 of 19 and legal veracity of the plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha v.Telco Ltd. [(2013) 4 SCC 396 : (2013) 2 SCC (Civ) 632] , will be sufficient. The failure to file a written statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted."
20. As the plaintiff has not placed on record any material and has not examined any expert witness, the plaintiff cannot be said to have proved that the suit property is in a dilapidated condition and is on the verge of collapse. Now, let us proceed to the findings on issue no. 1 to 4 separately.
21. In the issue no. 1, at the outset, it bears mention that the same is framed on the basis of prayer clause (1) of the plaint and prayer clause (1) is vaguely drafted and a lot of things have been inserted in the said prayer clause. Essentially, the plaintiff has sought carrying out of a survey by DUSIB of the suit property regarding the stability of the __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 16 of 19 structure and to file a report as to whether the same is unfit for human habitation. As discussed earlier, DUSIB does not have any jurisdiction to conduct such survey, the appropriate authority to do the same is MCD. The plaintiff has not impleaded MCD in the present case and thus, no relief regarding issue no. 1 can be granted to the plaintiff. Accordingly, issue no. 1 is decided against the plaintiff and in favour of defendants.
22. Vide prayer clause (2) and (3), the plaintiff seeks mandatory injunction against the defendant no.1 to allow the laborers/workers of the plaintiff to have access to the ground floor and second floor of the suit property (which are in occupation of defendant no. 1) to prepare an estimate of cost and expenses of the labour work which is to be done, to carry out the said repair work and direction to defendant no. 1 to bear his proportionate cost of repairs. As explained earlier, the construction of building in the suit property was itself an illegal act and the same cannot be allowed to be continued/perpetuated by permitting further construction/repair. However, since the plaintiff has contended, though not proved, that the suit property is under threat of collapse and is in a dilapidated condition, considering the health and safety of the occupants of the building (including the plaintiff), all that may be allowed to the plaintiff is that he can send his laborers /workers to the ground floor and second floor only to stop the further seepage. Since, the plaintiff does not have any right, no construction can be allowed in the suit property in the name of repair and the authorities concerned including DUSIB and MCD have all the rights and powers to take appropriate action against the plaintiff and other LRs of late Sh. Ramdev. However, as discussed above, the plaintiff may be allowed to __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 17 of 19 send his laborers and workers to second-floor and ground floor only to stop seepage that too at his own cost. issue no. 2 and 3 are decided accordingly.
23. Issue no. (4) was framed on the basis of prayer clause (4). In prayer clause (4), the plaintiff has only sought an exparte ad-interim temporary injunction against the defendants no. 1, 3, 4 and 5 from creating any third party rights till the final disposal of the present suit. The plaintiff has not sought any permanent injunction against the creation of third party rights and as the present suit is disposed of vide this judgment, no ad-interim injunction is required to be passed. Accordingly, issue no. (4) is decided against the plaintiff and in favour of defendants.
24. ISSUE NO. 6 and 76.Whether the present suit is without any cause of action and is not maintainable under Order VII Rule 11 CPC? OPD-1.
7.Whether the plaintiff has no locus standi to file the present suit as he has no right, title or interest in the suit property? OPD-1.
25. Onus to prove both issues was upon the defendant no. 1. Defendant no. 1 was proceeded exparte vide order dated 09.10.2023./ No evidence has been led by defendant no. 1 to prove the said issues. Accordingly, both the issues are decided against the defendants and in favour of plaintiff.
26. RELIEF In view of the above discussion, suit of the plaintiff is partly __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
Page no. 18 of 19 decreed and following relief is granted to the plaintiff:-
a) A decree of mandatory injunction against defendant no. 1 and in favour of plaintiff thereby directing the defendant no. 1 to allow the plaintiff, his workers/laborers etc. to carry out repairs on ground floor and second floor of suit property to prevent seepage from the said floors. The plaintiff shall not carryout any construction work in the suit property beyond the repair to stop seepage. Such repair, if any, shall be carried out by the plaintiff at his own expense.
27. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room, after due compliance.
(DEEPAK VATS) ASCJ-cum-JSCC-cum-GJ (South) Saket Courts, New Delhi Announced in the open Court On 03.06.2024 __________________________________________________________________________________________ CS SCJ no.729/18 Sh. Jagdish Kumar Vs. Sh. Brahmdev & Ors.
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