Delhi District Court
Shri Naresh Parkash vs Shri Sukhbir Singh on 28 March, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL) TIS HAZARI COURTS, DELHI
SUIT NO. 86/99
Unique ID No. 02401C0022371999
MEMO OF PARTIES
Shri Naresh Parkash
S/o Shri Kartar Singh
R/o 199A, Shahpur Jat,
New Delhi 110049
...........Plaintiff
VERSUS
1. Shri Sukhbir Singh
S/o Shri Indraj
R/o 352, Shahpur Jat,
New Delhi
2. Shri Prem Singh
S/o Shri Indraj
R/o 331A Shahpur Jat,
New Delhi 110049
..........Defendants
Date of institution of the Suit: 25.02.1999
Date on which judgment was reserved: 06.03.2013
Date of announcement of Judgment: 28.03.2013
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 1/20
JUDGMENT
1. This judgment shall decide the suit of the plaintiff wherein the plaintiff has sought the following reliefs "(I) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant no. 1 thereby restraining the defendant no. 1, his family members, representatives, attorneys, agents, labourers, contractors or anyone claiming to acting on behalf of the defendant no. 1.
(a) From making any openings or installing any door, windows, ventilators or any other opening towards the property of the plaintiff as shown in yellow colour and particularly towards the portion covered with blue lines in the site plan of property no. 199A, Shahpur Jat, New Delhi, from the building or any construction on the portion shown in green colour in the site plan of property no. 199A, Shahpur Jat, New Delhi - 110049.
(b) From carrying any illegal or unauthorized construction on the portion shown in green colour in the site plan of the property bearing no. 199A, Shahpur Jat, New Delhi - 110049.
(II) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no. 1, thereby directing the defendant no. 1 to
(i) Demolish and remover the illegal and unauthorized structure/building constructed by defendant no. 1 on the portion shown in green colour in the site plan of property no. 199A, Shahpur, Jat, New Delhi. Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 2/20 (III) Award Costs of the suit in favour of the plaintiff against the defendant no. 1."
2. Plaintiff submits that he is a permanent resident of Village Shahpur Jat, New Delhi. The ancestors of the plaintiff and defendants were original residents of village Shahpur Jat, New Delhi. The present suit pertains to property bearing no. 199A, Village Shahpur Jat, New Delhi, located in front of house no. 192 Shahpur Jat, New Delhi. In the year 1978 suit bearing no. 51/78 was instituted in the court of Sh. R.K. Sain the then Ld. ADJ by defendant no. 1 against his real brothers and sisters namely Sh. Kartar Singh, Sh. Bhagwan Singh, Sh. Prem Singh, Smt. Premwati and Smt. Reshma. In the said suit a compromise was recorded between the parties on 02.09.1978 and the suit was dismissed in terms of the said compromise. Division with respect to property bearing no. 199A, Village Shahpur Jat, New Delhi, located in front of house no. 192 found mention in the said compromise. The portion of the property bearing no. 199A, Village Shahpur Jat, New Delhi falling to the share of the defendant no. 1 i.e. Sh. Sukhbir Singh was stated to be shown in green colour in the site plan filed along with the plaint. The portion falling to the share of Sh. Prem Singh i.e. defendant no. 2 was shown in red colour and portion falling to the share of the father of the plaintiff namely Sh. Kartar Singh and his real brother Sh. Bhagwan Singh was shown in the yellow colour in the site plan.
3. It was stated that from the site plan it was evident that the portion of the Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 3/20 defendant no. 2 had no access from the main road and he approached Sh. Kartar Singh and Sh. Bhagwan Singh for providing access from the main road to his portion, from a portion of the property of the plaintiff and being real brothers, father and uncle of the plaintiff allowed defendant no. 2 to use a portion from their own holding in order to have ingress and egress to his property from the main road. The portion of the property of Sh. Kartar Singh and Sh. Bhagwan Singh allowed by them to be used by defendant no. 2 was shown in the blue lines in the plan. It was submitted that the portion in blue was the exclusive joint property of the father and uncle of the plaintiff and defendant no. 2 had only been given right of access to his portion from the said land, from the main road. Defendant no. 1 had no right over the land shown in the blue lines which was exclusively being used by families of the plaintiff, Sh. Bhagwan Singh and defendant no. 2. After the arrangement between the parties, father of the plaintiff and his family, Sh. Bhagwan Singh and his family, Sh. Kartar Singh and his family and Sh. Prem Singh and his family made construction on their respective portions and had been using the same since then. The portion in yellow colour covered with blue lines was exclusively being used by defendant no. 2 and his family as well as plaintiff and his family and Sh. Bhagwan Singh and his family since the year 1978 till date. Defendant no. 1 never used the said portion nor had any right to use the same. Defendant no. 1 owned portion measuring 30'x40' of property bearing no. 199A, Village Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 4/20 Shahpur Jat, New Delhi and had independent access to his property from main road itself which he had been using since the year 1978 till date.
4. Some time in the last week of January, 1999, defendant no. 1 demolished his old construction existing in his portion shown in green in the site plan with intention to raise a new building to be used as commercial/Industrial building. Plaintiff and his family members enquired from defendant no.1 whether he had obtained any sanction for raising construction of the building on the said plot. Defendant no. 1 orally informed that necessary sanction had been obtained from the concerned Government department for raising construction. Plaintiff believed the said statement of defendant no. 1 and defendant no. 1 started digging and construction activity on his portion. Over a span of almost 25 days st defendant no. 1 raised construction of three storied building i.e. ground, 1 and nd 2 floor by making 100% coverage. Defendant no. 1 was not allowed to make nor did he make any opening towards the property of the plaintiff and Sh.Bhagwan Singh particularly towards the portion shown in blue lines in the site plan. Defendant no. 1 recently prior to the filing of the suit in a drunk condition used abusive language against the plaintiff and his family members and openly challenged the plaintiff that he would make opening of doors and windows from his new construction towards the portion of the plaintiff and Sh. Bhagwan Singh. Defendant no. 1 being the uncle of plaintiff, plaintiff had respectfully told him that he had no right to making any opening of door of Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 5/20 windows towards the property of the plaintiff and Sh. Bhagwan Singh. Despite attempts by the plaintiff and other family members as well as other elderly people, defendant no. 1 continued to use abusive language for the plaintiff and family members of the plaintiff. Complaint dated 24.02.1999 was lodged against defendant no. 1 by the plaintiff with SHO, PS Hauz Khas.
5. In the evening of 24.02.1999, the defendant no. 1 with the help of his family members, labourers and contractors made illegal and unauthorized openings in the nature of ventilators at a height 9' on the ground and for st nd windows at a height about 4' on the 1 and 2 floor towards the property of the plaintiff Sh. Bhagwan Singh shown yellow colour in the site plan, particularly covered with blue lines. The openings were made forcibly and illegally by defendant no. 1 without knowledge and consent of the plaintiff and his family or Sh. Bhagwan Singh or his family. On enquiries from MCD office, it was revealed that defendant no. 1 had not obtained any sanction for a new construction making 100% coverage and the construction raised by defendant no. 1 on the portion shown in green colour was illegal, unauthorized and without any sanction or permission from Government Department. The construction made by defendant no. 1 posed a threat and hazardous to the life and property of the plaintiff and his family members as well as to the life and property adjoining property ownership. There was danger of the unauthorized construction raised by defendant no. 1 collapsing. Plaintiff called upon Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 6/20 defendant no. 1 to close unauthorized opening of ventilators on the ground floor st nd and windows on the 1 and 2 floor towards the property of the plaintiff but defendant no. 1 ignored the plaintiff and threatened the plaintiff with dire consequences and further threatened that he would open the doors and windows on the ground floor portion towards the property of the plaintiff. The illegal openings made by defendant no. 1 towards the property of the plaintiff was an interference in the privacy of plaintiff and his family members, since defendant no. 1 refused to cover the illegal openings of the ventilators of the st ground floor and windows on the 1 floor and span of his buildings towards the property of the plaintiff and also refused to stop the illegal and unauthorized construction, therefore plaintiff filed the present suit. Defendant no. 2 was impleaded as proforma party and no relief was claimed against him.
6. Written statement was filed by defendant no.1, preliminary objections were taken. It was submitted that the plaintiff had no right to file the suit. Plaintiff had not come to the court with clean hands and had filed the suit in collusion with defendant no. 2. Suit was not properly valued nor proper court fees had been affixed. Plaintiff had given his wrong address. In fact he was residing in property no. 192 Shahpur Jat, Delhi and not in property bearing no. 199A, Village Shahpur Jat, New Delhi.
7. On merits, claim of the plaintiff was denied. It was submitted that the plaintiff was residing along with his three brothers at 192 Shahpur Jat, and not Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 7/20 at property bearing no. 199A, Village Shahpur Jat, New Delhi. Parents of the plaintiff were residing at village Kharkhoda District Haryana. It was stated that there was a main road/street between the properties bearing no. 199A, Village Shahpur Jat, New Delhi and 192 Shahpur Jat, New Delhi. The compromise dated 02.09.1978 was not denied. It was submitted that the property no. 199A was divided and was in possession of the parties in accordance with a mutual agreement dated 02.09.1978. It was submitted that there was a thorough fare from the common passage/street leading to the property of Sh. Prem Singh and the said common passage still exists even after construction of property bearing no. 199A, Village Shahpur Jat, New Delhi. The share of the defendant no. 1 in the area given to him vide the compromise deed dated 02.09.1978 was 40'x30'. Portions of Sh. Prem Singh, Sh. Bhagwan Singh and Sh. Kartar Singh had access from the alleged lane/street since 1978 which was a common passage for all four brothers. It was stated that in the old structure of the defendant doors, ventilators and windows had openings in the said street. It was denied that the defendant's right to access his portion was only from the main road. The water lines etc from the main water lane of the MCD was also coming to the portion of the defendant no. 1 from the said street. The old structure was demolished towards the end of November, 1998 and new construction was started in December, 1998 which would be clear from the plaint filed by defendant no. 2 Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 8/20 which was pending in the court of Ld. Civil Judge, Sh. P.S. Malik. There was no occasion for the plaintiff or his family members to ask for any sanction since the parties had not been on talking terms. The defendant has raised construction of the triple storeyed building and all three floors were at the stage of finishing on the date of filing of the present suit. Defendant no. 1 had already opened ventilators, windows and doors and had fixed them at their respective places which could be confirmed from the plaint of defendant no. 2 filed in the court of Ld. Civil Judge in which there was clear mention about the Gate and windows opening towards the way by the defendant no. 1 on 27.12.1998. There had been no objection by the plaintiff or any one else regarding the door, ventilators and windows openings in the common street/lane. There was new construction towards the portion of the plaintiff and Sh. Bhagwan Singh because the door, windows, etc. were already existing in the old structure. The present suit had been filed in collusion with defendant no. 2. Report dated 24.02.1999 lodged in PS Hauz Khas was stated to be false. It was submitted that the door, windows and ventilators were already existing but due to some problem in fitting the doors they could not be locked properly. As such there was apprehension of theft in the premises of defendant no. 1 and he got temporary walls affixed on the door and window on the ground floor. These existed much prior to the st complaint dated 24.02.1999 lodged by plaintiff. Even construction up to the 1 floor was complete on 06.01.1999. The situation and photographs filed by the Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 9/20 plaintiff was not denied however it was submitted that the same were existing since prior to the filing of the suit. No threat had been given to the plaintiff. No encroachment or illegal construction had been done by the defendant. It was stated that the suit of the plaintiff be dismissed with cost.
8. Replication was filed by the plaintiff to the written statement of defendant no. 1. It was submitted that the same had not been properly verified. Contents of the written statements were denied and those of plaint were reiterated.
9. Defendant no. 2 did not appear despite service and was proceeded exparte vide order dated 30.03.1999.
10. On 09.03.2005, the following issues were framed;
1. Whether the suit is collusive between plaintiff and defendant no. 2? OPD1
2. Whether the plaintiff is entitled for the decree of permanent injunction as far as window, ventilators are concerned as mentioned in para (a) of prayer clause (i)? OPP
3. Whether the plaintiff is entitled for the decree of permanent injunction as prayed in prayer clause (b) of prayer clause I? OPP
4. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed in prayer paraII? OPP
5. Relief.
Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 10/20
11. The case was fixed for evidence. Plaintiff examined himself as PW1 and Sh. Raj Kumar witness from food and supply department as PW2. Thereafter, the PE was closed.
Defendant no. 1 in furtherance of his case examined himself as DW1 and thereafter DE was closed.
12. The case was then fixed for final arguments.
13. I have heard the final arguments advanced by counsel for parties.
14. My issue wise findings are as follows;
Issue No. 1 Whether the suit is collusive between plaintiff and defendant no. 2?
15. The defendant no. 1 alleged that the defendant no. 2 who is exparte in the present case had filed a suit for permanent injunction against the defendant no. 1 in December 1998, which was dismissed vide order dated 12.11.1999, the certified copies of judgment and decree in the said case were exhibited as Ex DW 1/1 and Ex DW1/2. It was contended that the plaintiff thus in collusion with defendant no. 2 on the same facts and grounds filed the present suit.
15. It was argued by counsel for the plaintiff that the plaintiff was neither a party to the said suit filed by the defendant no. 2, nor was he aware of the same. Plaintiff deposing as PW 1 stated in crossexamination that he did not know anything about the said suit. It was also contended and rightly so by counsel for the plaintiff that merely because defendant no. 2 did not choose to Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 11/20 appear in the present case resulting in his being proceeded exparte, it could not in any manner lead to an adverse inference against the plaintiff. Plaintiff while crossexamining defendant/DW 1 evinced from him that neither the plaintiff nor his father Sh Kartar Singh, and nor Sh Bhagwan Singh were parties to the said suit instituted by the defendant no. 2. Further defendant no. 1 also deposed in crossexamination that he never filed any application in the said suit for impleading the plaintiff or Sh Kartar Singh or Sh Bhagwan Singh nor served any notice on the plaintiff or Sh Kartar Singh or Sh Bhagwan Singh intimating about the said suit filed by Sh Prem Singh, though defendant deposed that he had verbally informed him. In view of the clear admissions of the defendant no. 1 himself that the plaintiff nor his father were ever parties to the earlier suit filed by the defendant no. 2 nor any notice in writing had been given by the defendant no. 1 to the plaintiff or his father in this regard, it cannot be concluded that the plaintiff was aware of the litigation between the defendants. Merely on the basis of bald averments and presumptions it cannot be held that there is any collusion between the plaintiff and the defendant no. 2. The onus to prove this issue was on the defendant no. 1 but no positive evidence has been brought by defendant no. 1 to prove that the present suit has been filed by the plaintiff in collusion with the defendant no. 2, thus defendant no. 1 has failed to discharged his onus.
Issue decided against the defendant no. 1 and in favour of the plaintiff. Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 12/20 Issue No. 2, 3 & 4 Whether the plaintiff is entitled for the decree of permanent injunction as far as window, ventilators are concerned as mentioned in para (a) of prayer clause (i)? OPP (3) Whether the plaintiff is entitled for the decree of permanent injunction as prayed in prayer clause (b) of prayer clause I? OPP & (4) Whether the plaintiff is entitled for the decree of mandatory injunction as prayed in prayer paraII? OPP
16. These issues are taken up together being interconnected.
17. The plaintiff relied on the judgment of the Hon'ble Delhi High Court in Omkar Nath vs Ram Nath Gupta, PLR Vol LX XXX VII 1985 (130) wherein it was held that a neighbour has a right to get an injunction restraining the defendant from proceeding with construction contrary to bye laws or from raising unauthorized construction.
18. The plaintiff apart from examining himself as PW 1 examined Sh Raj Kumar, Inspector from Food & Supply Department as PW 2 who produced the summoned record i.e. Ex PW 2/1 ration card of the plaintiff for the property No. 199 A, Shahpur Jat. Plaintiff relied on Ex PW 2/1 to show that he resided in the suit property however the plaintiff claims the relief of injunction not on the ground of any easementary right but on the ground that Sh Kartar Singh & Sh Bhagwan Singh were the owners of the portion shown in yellow in Ex PW 1/3(Site Plan) which included the portion shown in blue and it was the plaintiff's averment that the portion in blue was the exclusive property of the father and uncle of the plaintiff ( Sh Kartar Singh & Sh Bhagwan Singh respectively) and Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 13/20 defendant no. 2 had been given the right of access to his portion from the said portion and defendant no. 1 had no right over the said land. The defendant no. 1 on the other hand has averred that the portion in blue in the site plan was a common passageway for all the four brothers. The compromise of the year 1978 is admitted, the photocopy of the application of compromise filed before the Ld. Additional District Judge has been exhibited as Ex PW1/2 but a perusal of the same reveals that there is no mention of right of access to defendant no. 2 his portion either from the portion of father and uncle of the plaintiff or from a common passageway.
19. The plaintiff's claim is not on the basis of an easementary right but on the basis of exclusive ownership of his father and uncle of the portion shown in yellow including the portion in blue in the site plan. The judgment in AIR 1999 Kerala 405 relied on by counsel for defendant which deals with injunction seeking to protect easement by prescription is inapplicable in the facts of the case.
20. The site plan Ex PW1/3 does not provide the specification and measurements of the property in dispute, the plaintiff has not produced either Sh Kartar Singh & his father, Sh Bhagwan Singh and his uncle as witnesses to prove the contention that the portion in blue in EX PW 1/3 was the exclusive property, inspite of defendant's plea that it was a common passageway. Counsel for plaintiff pointed out that defendant gave contradictory Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 14/20 measurements of his portion of the property and argued that it was clear that no passage was left by defendant no. 1 and that the passage was in fact left by plaintiff's father Sh Kartar Singh & uncle Sh Bhagwan Singh. There is no merit in this argument. It is only when the initial onus of proving his case is discharged by the plaintiff that the flaws of the defendant's case are to be examined. In fact, it was for the said Sh Kartar Singh & Sh Bhagwan Singh to seek a declaration regarding their alleged exclusive right to the disputed passageway/portion covered in blue lines in the site plan, which has apparently not been done by them and which plaintiff does not have the locus to seek. The plaintiff as PW 1 deposed in cross examination that his father was alive and his father was the owner of the property. Plaintiff admitted that he not been given any written permission by his father to file any suit. There is no explanation by the plaintiff as to why Sh Kartar Singh & Sh Bhagwan Singh have not been made parties to this suit or why they have not been produced as witnesses even though they were material witnesses. Plaintiff has thus not been able to establish that the portion in blue in Ex PW 1/3 was the exclusive property of Sh Kartar Singh & Sh Bhagwan Singh.
21. To seek the relief of permanent injunction,the plaintiff must show the existence of a right in his favour and an infringement/threat of infringement of that right. Plaintiff through EX PW 2/1 has shown that he is in possession of a portion of the property, being in possession he has the right to enjoy the Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 15/20 property, it is averred that the right to privacy of the plaintiff would be infringed by the act of opening of the windows etc. However, the counsel for the defendant relied on Anguri Vs Jiwan Dass AIR, 1988 SC 2024, wherein it was held that as no customary right of privacy had been pleaded or proved, it was open to the defendants to use their property in any manner permitted by law. It was similarly held in AIR 2007, A.P. 351, P.R. Maharshi VS Musunuri Bala Tripura Sunderama. As per plaintiff's own site plan, any openings by the defendant no. 1 on his property would be towards the portion shown in blue lines. The plaintiff has not established that the father of the plaintiff and his uncle Sh Bhagwan Singh have exclusive right over this portion in blue lines; in such a situation, the plaintiff was not only to make a bare statement that his right to privacy would be infringed by the opening of doors/windows etc. by the defendant from his portion of the property towards the portion in blue lines but, as held by the Hon'ble Supreme Court in Anguri's case (supra), plaintiff was to plead and prove a customary right of privacy. Plaintiff was to show that he had enjoyed such a customary right and that there was an infringement/threat of infringement of the same. Plaintiff has failed to do so.
22. Counsel for the plaintiff argued that even in the aforesaid judgment, the Hon'ble Supreme Court has held that the defendant can use his property in any manner permitted by law whereas in the present case, the defendant no. 1 had carried out unauthorized construction which was without any sanction from the Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 16/20 authorities. Now, whether any openings or installation of door, windows etc by the defendant no. 1 on his own portion of the property was against the bye laws was for the plaintiff to prove by producing and getting proved the relevant bye laws and rules of construction of the local authority/MCD. Even if the case of the plaintiff is that the entire structure was an unauthorized construction, this specific allegation, which is the basis of the plaintiff's claim for mandatory injunction seeking removal of the allegedly illegal and unauthorized construction, was to be established by cogent evidence by the plaintiff. The plaintiff did not choose to make MCD as a party to the suit. Ld. counsel for defendant relied on AIR 2005 Karnataka 115 for the proposition that it is for the Corporation(in that case, Banglore City Corporation) to determine whether there was violation of the building bye laws and deviation from the sanctioned plan and without an opportunity to the corporation in the matter and without considering the stand of the corporation, it was not proper for the civil court to adjudicate the matter. Counsel for plaintiff argued that the said case was distinguishable from the present case since in that case, the defendant had contended than the construction was valid and duly licensed by the corporation, while in the present case, the defendant's stand in affidavit of evidence Ex DW 1/A which was that the suit property was situated in Lal Dora area and no sanction plan was required to raise the renovation/construction had been demolished in defendant's cross examination as defendant deposed in that Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 17/20 cross examination the property was part of agriculture land and not Lal Dora.
23. The above argument of the counsel for plaintiff is persuasive but can not sustain. It is correct that defendant admitted that he had neither submitted nor obtained any sanction from the MCD or other statutory authority for carrying out the construction however he had also volunteered that he had applied for sanction by submitting the building plan in the office of the corporation but the application papers were returned on the ground that the plans were not required to be sanctioned in the area. It was argued by plaintiff that the defendant admitted that he had not filed the said documents and never produced them therefore adverse inference should be drawn against him. Before drawing any adverse inference against the defendant, the relevant portion of evidence of the plaintiff may also be perused. Plaintiff in his cross examination at one place deposed as follows :
" I am residing in property no. 199 A. This property was constructed by my father. There was no sanctioned plan for this property."
At another place, plaintiff deposed thus :
" I cannot admit or deny that no sanction plan is required as the property of defendant no. 1 is situated in Lal Dora Abadi."
24. The person who seeks equity must do equity, plaintiff has specifically admitted that there was no sanction plan for the portion of the property constructed by the father of the plaintiff. In such a situation the plaintiff cannot Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 18/20 expect the court to conclude, in absence of any positive and cogent evidence in this regard having been produced by the plaintiff, in the form of rules and bye laws of the statutory authorities or by summoning witnesses from the concerned authorities or any other relevant evidence, that though defendant has denied that the construction is unauthorized and though he has deposed that documentation presented to the authorities by the defendant was returned yet because there is no sanction therefore the construction of the defendant being unauthorized be demolished. The plaintiff cannot take aid of the deficiencies in the case of the defendant, plaintiff's case must stand on its own legs, when the plaintiff has admitted that there is no sanction plan of his portion of the same property the defence of the defendant that sanction plan was not required can not be considered to be improbable. It is correct that the defence of nonjoinder of necessary party i.e. MCD was not taken by the defendant no. 1 in his written statement and thus can not be taken at the stage of final arguments however atleast, the status report of the property could have been sought to be summoned by the plaintiff towards establishing his case but this was not done.
25. In the case of Omkar Nath (wherein the Hon'ble High Court was dealing with a revision petition against the dismissal of an interim injunction application), the exact and specific building bye laws which had purportedly been contravened had been pleaded. The plaintiff in the present case has not Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 19/20 cited and proved the particular rules and bye laws which have been contravened and has merely made an unsubstantiated blanket statement that the structure is unauthorized. The plaintiff has failed to establish that the defendant has carried out, or plans to carry out, unauthorized construction or that structure of the defendant is unauthorized. The onus of these issues was cast on the plaintiff which plaintiff has failed to discharge.
26. In view of the foregoing discussion, I hold that the plaintiff is not entitled to the reliefs of permanent and mandatory injunction as sought. Issues nos 2, 3 & 4 decided against the plaintiff and in favour of the defendant. Issue No. 5 Relief
27. In view of the above discussion, particularly on issues nos 2,3 & 4, I hold that the plaintiff is not entitled to the reliefs sought. Suit of the plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court ANJANI MAHAJAN
On 28.03.2013 Civil Judge - 02 (North)
28.03.2013
Suit No. 86/99 Sh. Naresh Parkash Vs. Sukhbir Singh 20/20