Delhi District Court
Mrs. Shobita Kumar vs Mrs. Suragana Jain on 12 December, 2012
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by: Ms. Ritu Singh
Suit No. 528/10
Case ID No. 02406C0422142010
In the matter of:
1. Mrs. Shobita Kumar,
W/o Mr. Sunil Kumar,
2. Mrs. Sonia Bhaskar,
W/o Mr. Shivam Bhaskar,
Both the Resident of
R/o B22, Maharani Bagh,
New Delhi.
3. Sangita Kumar,
W/o Sh. Rakesh Kumar,
R/o D69, IInd Floor,
Panchsheel Enclave,
New Delhi.
Through Their Attorney,
Sh. V.B. Soni,
S/o G.D. Soni,
R/o B22, Maharani Bagh,
New Delhi. Plaintiffs.
VERSUS
Mrs. Suragana Jain,
W/o Mr. Sandeep Jain,
Suit No. 528/10 1/18 pages
R/o B22, IInd Floor,
Maharani Bagh,
New Delhi. .......Defendant
Date of Institution :21.12.2010
Date of Reserving of Order :24.11.2012
Date of Pronouncement of Order :12.12.2012
J U D G M E N T
1. This is a suit for mandatory injunction filed on behalf of plaintiffs for mandatory injunction against the defendant directing the defendant to allow the plaintiffs to raise/construct staircase leading to the roof above the second floor as shown in the site plan.
2. Brief factual matrix relevant for the determination of the present suit are that the plaintiff no.1 being the absolute owner of the suit property sold the second floor along with the annexed of the second floor without the car parking and roof rights, along with the common staircase and common area to defendant no.1. Plaintiff no.1 had gifted 1/3rd part of entire ground floor and first floor along with roof rights over second floor and its annexed and common staircase in favour of plaintiff no. 2 and 3 vide registered gift deed. It is plaintiffs averment that plaintiffs are joint owners of ground floor, first floor along with the annexed rights and roof rights above the second floor. Plaintiffs have stated that Suit No. 528/10 2/18 pages presently only passage to reach the roof above the second floor is through second floor which belongs to defendnat no.1 and there is no separate passage to reach the roof and plaintiffs have to go along the passage of second floor and reach the stairs. Plaintiffs want to extend the common staircase to the roof of second floor without passing through the second floor as plaintiffs does not want to interfere in defendant's possession and pass through second floor every time. Further, the overhead water tanks of the plaintiffs are also on the roof of the second floor. It is plaintiffs averment that on 24.06.2010 when plaintiffs attorney requested the defendant to allow them to construct staircase so that they can use their portion, defendant threatened the attorney of plaintiffs and a police complaint in respect of same was filed in PS New Friends Colony.
3. The suit has been contested by the defendant by filing WS wherein defendant has taken preliminary objection that the plaintiffs cannot raise any construction, addition or alteration of building without there being any specific approval by concerned government authority and that the suit is barred for non joinder of necessary parties. Defendant has contested the suit on merits stating that the passage to the roof above the second floor is through the second floor as per the sanctioned plan of the building and the defendant had always allow the plaintiffs to have access to the roof and there had been no allegation from the plaintiffs that defendant had obstructed their access to the roof. However, Suit No. 528/10 3/18 pages defendant had objected to the construction of illegal and unauthorised staircase by the plaintiffs without proper sanction building plan. Defendant has denied that the plaintiffs want to extend the common staircase of the building to the roof of second floor, rather, plaintiffs wants to construct a new staircase leading to roof of second floor by breaking the wall of the building by altering the existing sanction plan of the building and therefore plaintiffs cannot be permitted to demolish the wall of main building which is in front of main gate of second floor of which defendant is the owner and in possession. Defendant has further submitted that the proposed staircase which the plaintiffs intends to raise is illegal and unauthorised construction which may result into penal action by MCD as per its rule and being the coowner of the property defendant will be effected by any penal action of the authority. Defendant has denied having ever obstructed the plaintiffs in ingress and egress of plaintiffs to the roof of second floor. Defendant has also denied having objected to any request of attorney for the plaintiffs made on 24.6.2010 in respect of raising the staircase stating that defendant was out of country during the specific period.
4. In the replication /rejoinder filed by the plaintiffs, plaintiffs have reiterated their stand taken in the suit. Further, plaintiffs have denied that any specific permission is required from MCD or DDA for construction of proposed staircase and has further denied that the proposed staircase is violative of any law or illegal and unauthorised.
Suit No. 528/10 4/18 pages
5. After admission denial of documents by the parties, following issues were framed by this court:
1. Whether the plaintiffs are entitled to a decree of mandatory injunction directing the defendant to allow the plaintiff to raise / construct stair case leading to the roof above the second floor as appropriately shown in the site plan? OPP
2. Whether the present suit is bad for mis joinder of necessary party? OPD
3. Whether the plaintiff is not entitled to any relief in view of Section 41 (i), Specific Relief Act, ? OPD
4. Whether the plaintiff is entitled to any other relief? If so, what?
6. In support of his case plaintiffs examined Sh. V.B. Soni, the AR of the plaintiff as PW1 who tendered his evidence by way of affidavit Ex.PW1/X along with following documents:
1. Ex. PW 1/ 1 copy of general power of attorney. (OSR)
2. Ex. PW 1/ 2 copy of sale deed dated 25.11.2003.
3. Mark PW 1/ 2A and PW 1/ 3 copies of registered gift deed.
(Object to mode of proof)
4. Mark PW 1/ 4 copy of site plan. (Object to mode of proof)
5. Mark PW 1/ 5 copy of complaint dated 24.06.2010.
7. The plaintiff evidence was closed vide separate statement of AR for the plaintiff on 28.02.2012.
Suit No. 528/10 5/18 pages
8. Thereafter defendant examined herself as DW1 and tendered her evidence by way of affidavit Ex.DW1/X along with following documents:
1. Mark A copy of complaint made to police dated 24.06.10.
2. Ex.DW1/2 copy of passport (OSR).
9. Defence evidence was closed on 27.8.12 vide separate statement of Ld. Counsel for the defendant.
10. Final arguments were heard on 24.11.2010.
11. I have heard the counsel for both the parties and perused the report.
12. Issue wise findings are as under:
Issue no1.
Whether the plaintiffs are entitled to a decree of mandatory injunction directing the defendant to allow the plaintiff to raise / construct stair case leading to the roof above the second floor as appropriately shown in the site plan? OPP
13. Onus to prove this issue was on plaintiffs. Plaintiffs are the joint owners of ground floor, first floor and rights annexed therewith and also has the roof rights of second floor with its annexe and original GPA which is Ex. PW1/1, original sale deed dt.25.11.2003 which is Ex. PW1/2 and copy of registered gift deed which is Mark PW1/2A and PW1/3 has been filed in proof thereof. Defendant has not specifically denied the ownership of plaintiffs in respect of ground floor, first floor and rights Suit No. 528/10 6/18 pages annexed therewith and the roof rights of second floor with its annexed rights.
14. Real dispute pertains to issue of construction or raising of new independent staircase leading to roof of the second floor by plaintiffs. Presently, passage to roof of second floor is through the lobby of second floor and plaintiffs wants to construct new independent staircase leading to roof of the second floor on the plea of inconvenience and to avoid any disturbance to defendant. Defendant has opposed the construction of new staircase as it involves breaking the wall of basic structure of the building and making alteration/addition to existing sanctioned plan. Defendant has submitted that passage to roof of second floor is through the second floor as per the sanctioned plan of the building and plaintiffs wants to raise new staircase leading to roof of the second floor by breaking the wall of basic structure of the building and making alteration/addition to existing sanctioned plan.
15. Plaintiffs being the joint owners of ground floor, first floor and roof of second floor along with annexed rights have right to uninterrupted enjoyment, use and access to roof of second floor. However, right to construct an independent staircase leading to roof of second floor is subject to laws, rules and regulation governing the buildings.
16. The suit property in question is governed by Delhi Municipal Corporation Act, 1957 and byelaws and regulations framed by Delhi Municipal Corporation. In Chapter XVI of Delhi Municipal Corporation Suit No. 528/10 7/18 pages Act, 1957, various provisions relating to "Building Regulations" have been enacted. According to Section 334(g) of the Act, sanction has to be taken from Commissioner of MCD before reconstructing the principal staircase or altering its position. Section 334 of the Delhi Municipal Corporation Act, 1957 reads as under:
"334.Applications for additions to, or repairs of, buildings (1) Every person who intends to execute any of the following works, that is to say,
(a) to make addition to a building
(b) to make any alteration or repairs to a building involving the removal or reerection of any external or party wall thereof or any wall which supports the roof thereof to an extent exceeding onehalf of such wall above the plinth level, such half to be measured in superficial feet;
(c) to make any alteration or repairs to a frame building involving the removal or reerection of more than onehalf of the posts in any such wall thereof as aforesaid; or involving the removal or reerection of any such wall thereof as aforesaid to an extent exceeding onehalf of such wall above plinth level, such half to be measured in superficial feet;
(d) to make any alteration in a building involving ( i ) the subdivision of any room in such building so as to convert the same into two or more separate rooms, or ( ii ) the conversion of any passage or space in such building into a room or rooms;
(e) to repair, remove, construct, reconstruct or make any addition to or structural alteration in any portion of a building Suit No. 528/10 8/18 pages abutting on a street which stands within the regular line of such street;
(f) to close permanently any door or window in an external wall;
(g) to remove or reconstruct the principal staircase or to alter its position;
shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by byelaws made in this behalf.
(2) Every such notice shall be accompanied by such documents and plans as may be so prescribed."
17. According to section 334(g) of Delhi Municipal Corporation Act, for any alteration or reconstruction of the principal staircase, appropriate sanction has to be taken from concerned official of Delhi Municipal Corporation, unless the staircase has been specifically sanctioned in original building plan of the property. In present suit, plaintiffs have not filed any sanction plan of the building. During the course of crossexamination of AR for plaintiff as PW1, PW1 has stated that there is no permission obtained from any authority for construction of stair case in dispute and no sanction plan was filed on record as it was not required. PW1 has further stated that construction of staircase has already been sanctioned on the basis of sanction plan. However, no sanction plan was placed on record to Suit No. 528/10 9/18 pages prove the same. Therefore, there is nothing on record to establish that proposed disputed staircase is according to sanctioned plan or whether any permission was taken from MCD for construction of proposed staircase.
18. Further defendant has stated that she had never obstructed the ingressegress of plaintiffs through the staircase which passes through the lobby of defendant. PW1 has also admitted in his cross examination that prior to filing of police complaint which is Mark PW1/5, defendant had never obstructed plaintiff. The police complaint which is Mark PW1/5 relied on by plaintiffs is actually police complaint lodged for security of the one Sh. V.B. Soni, who is AR for plaintiffs on grounds of unspecified threat calls and no specific allegations have been made against the defendant herein, and same is not relevant for the purpose of this issue.
19. Under the municipal laws, plaintiffs are under an obligation to alter or raise any new construction in accordance with the building regulation. Municipal Corporation of Delhi has the right to proceed against the offending building by virtue of Delhi Municipal Corporation Act,1957 and its byelaws and regulations governing the buildings and constructions on suit property, if the construction or the building is in violation of the statute or sanctioned plan for building. An illegal and unauthorised construction or addition or Suit No. 528/10 10/18 pages alteration which is in violation of sanctioned plan for building at suit property materially affects the right to or enjoyment of property by defendant, who is owner of the second floor in the same suit property. Plaintiffs owe the duty and obligation under the Delhi Municipal Corporation Act not only to MCD but also to defendant to ensure that any construction raised by plaintiff in building is in accordance with sanctioned building plan. If the plaintiffs, constructs the staircase, which is not sanctioned according to the Delhi Municipal Corporation Act, 1957, or the building plan, the owner of second floor/defendant has the right to object to any construction which may invite penal consequences against building on suit property and materially affect the enjoyment and possession of defendant, as owner of second floor of suit property.
20. According to Section 39 of Specific Relief Act, in order to establish a case for grant of mandatory injunction, plaintiff has to show that their is obligation existing in his favour from defendant and to prevent breach of such obligation by defendant, such mandatory injunction is necessary. In the matter at hand, plaintiffs have failed to prove that disputed proposed staircase was sanctioned nor have they filed sanctioned plan of building to support their claim that disputed staircase was sanctioned by original building plan. Therefore, it cannot be said that plaintiffs have any legally sanctioned right to Suit No. 528/10 11/18 pages construct the disputed proposed staircase. As no obligation exists in favour of plaintiffs, the issue of breach of obligation does not arise.
21. Therefore, plaintiffs have failed to establish a case for grant of mandatory injunction as they have failed to prove any right or obligation existing in their favor and accordingly this issue is decided against the plaintiffs and in favor of defendant. Issue No. 2
Whether the present suit is bad for mis joinder of necessary party? OPD
22. Onus to prove this issue was on defendant. Defendant has taken this objection in their WS that MCD and DDA are necessary party to present suit. Defendant while deposing before this court has stated in her evidence by way of her affidavit Ex.DW1/X that MCD and DDA is necessary party to suit because without their permission no addition or alteration can be made in the existing building and for making any new construction mandatory approval is required from aforesaid authorities. Further, DW1 has deposed in her affidavit Ex. DW1/X that MCD or DDA may take appropriate penal action against the illegal or unauthorised construction, if any, as per the municipal rules and regulations. PW1, during the course of his cross examination has denied that any permission was required from MCD stating that staircase is not a new construction but merely an internal Suit No. 528/10 12/18 pages change. No other evidence has been led by defendant in this regard.
23. Order I Rule 9 of the Code of Civil Procedure is the statutory provision for misjoinder and nonjoinder of parties. It reads as follows:
"No suit shall be defeated by reason of the misjoinder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non joinder of a necessary party."
24. This provision mandates that no suit shall be defeated by reason of misjoinder and nonjoinder of the parties. However the proviso clarifies that nothing in this rule will apply to nonjoinder of a necessary party.
25. Necessary party is a party whose presence is necessary in order that the decree if passed in the proceedings can become an effective decree. Such a person should be bound by the result of the action and the question to be settled and where such a question in the action cannot be effectively and completely settled unless he is a party; in such an eventuality the suit is liable to be dismissed. Under the amended provision of Order I Rule 9 of the CPC a necessary party not joined would lead to the dismissal of the suit as in the absence of such a necessary party, the suit can neither be effectively tried nor Suit No. 528/10 13/18 pages disposed of.
26. In Udit Narain Singh Malpaharia V. Addl. Member, Board of Revenue, Bihar (AIR 1963 SC 786) the distinction between "necessary party" and "proper party" was explained thus, by the Supreme Court:
"The law on the subject is well settled, it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
27. In present suit, plaintiffs have prayed for mandatory injunction to direct defendant not to obstruct plaintiffs in construction of the proposed staircase. The legal status of proposed disputed staircase is under cloud, as PW1 has stated during his crossexamination that proposed staircase was sanctioned by original sanction plan ( though no sanction plan has been placed on record), while defendant has objected to construction of proposed disputed staircase on ground that it was not sanctioned according to original sanctioned building plan and no permission was subsequently taken. Under Delhi Municipal Corporation Act, 1957, Delhi Municipal Corporation is the authority which grants sanction in respect of the construction, alteration, addition of buildings in area falling within purview of Suit No. 528/10 14/18 pages DMC Act. Disputed staircase being principal staircase would be governed by Section 334 (g) of Delhi Municipal Corporation Act, 1957 and thus would be covered under purview of the DMC Act and thus MCD is the appropriate sanctioning authority and any order passed in this suit shall have bearing over jurisdiction of the MCD by virtue of its parent statue. This is an indication of fact that MCD is a necessary party in this suit. Moreover, the status of the staircase could have been clarified only by Delhi Municipal Corporation, which is sanctioning authority in respect of building plans under Delhi Municipal Corporation Act. Further, DDA is the authority vested with power to sanction building plans as per master development plan and zonal plan according to Section 11A of Delhi Development Act, 1957.
28. In Tilak Raj Aggarwal and Anr. v. DDA & Ors., CS (OS) No. 2091/1993, Hon'ble High Court of Delhi has held that:
"One can understand a fact situation where the party who is asserting a set of facts is not in complete possession of the materials, but relies on the acts of others. In such circumstances, it can conceivably be said that the absence of that other would render the proceedings incomplete, and the decision, not based on all facts. "
28. Placing reliance on judgment of Hon'ble High Court in Tilak Raj Aggarwal and Anr. v. DDA & Ors, it can be safely said that MCD is Suit No. 528/10 15/18 pages necessary party for effective adjudication of the present suit.
29. According to proviso to Order 1 rule 9, nonjoinder of necessary party is at different footing from nonjoinder or misjoinder of proper parties and may defeat the suit. Necessary parties are parties whose presence is essential and without which no effective decree can be passed. It has been held by Hon'ble High Court of Delhi in Ramnath Exports Pvt. Ltd. v. Chairman, Air India, AIR 2003 Del 461 that non joinder of necessary parties may be fatal to the suit. Hon'ble High Court of Delhi Bhim Singh & Ors. Vs. Sukhbir Singh & Ors., 152(2008) DLT 36 has made the following observations which are relevant to this issue:
"In the absence of any necessary party, no effective order or decree be passed. In view of the provisions of Order 1 Rule 9 it is clear that nonjoinder of a necessary party would be fatal to the suit."
30. In light of aforesaid observations and judicial precedents, this Court is of considered view that MCD and DDA are necessary party to suit and suit is bad for nonimpleadment of necessary party. This issue is accordingly decided against in favour of defendant and the plaintiffs. Issue No. 3
Whether the plaintiff is not entitled to any relief in view of Section 41 (i), Specific Relief Act, ? OPD Suit No. 528/10 16/18 pages
31. Onus to prove this issue was on defendant. DW1 has deposed before the court by way of her affidavit Ex.DW1/X that no alteration or construction can be made in building without taking specific approval by MCD or DDA and as owner of second floor of suit property defendant shall bear the hardship if any penal action is taken by MCD/DDA and therefore plaintiff should have taken prior approval from above said authorities before construction of the disputed staircase.PW1, during the course of his crossexamination has denied that any permission was required from MCD stating that staircase is not a new construction but merely an internal change. No other evidence has been led by defendant in this regard.
32. Section 41 of Specific Relief Act, 1963 envisages the situations in which injunction cannot be granted. Section 41(i) of Specific Relief Act reads as follows:
"Section 41 Injunction when refused. An injunction cannot be granted...
(i)when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;"
32. In present matter, as plaintiffs have neither taken sanction from concerned official of MCD under the provisions of Delhi Municipal Corporation Act for construction of disputed proposed staircase nor filed sanctioned building plan to show that disputed proposed Suit No. 528/10 17/18 pages staircase was sanctioned by the building plan, the conduct of the plaintiff is evidently such which does not merit assistance of the Court. Court cannot grant a relief, which in a way circumvents the procedure established by law or is in violation of such procedure. When the plaintiffs themselves has not taken sanction for proposed disputed staircase, they cannot restrain defendant from raising objection construction thereto. Therefore, the conduct of plaintiffs has been such that it invites the application of Section 41(i) of Specific Relief Act, 1963 and therefore this issue is decided against the plaintiffs and in favor of defendant.
Issue No. 4
Whether the plaintiffs are entitled to any other relief? If so, what?
33. Thus, in view observations made herein above and findings on Issue no.1, the plaintiffs are not entitled to relief of mandatory injunction as claimed by them in the suit. Suit is accordingly dismissed. No orders as to cost.
34. Decree sheet be prepared accordingly.
35. File be consigned to record room.
Announced in the open Court (Ritu Singh) on 12.12.2012 Civil Judge04 / South District/Delhi Suit No. 528/10 18/18 pages