Delhi District Court
Sh. Subhash Chand Aggarwal vs Sh. O. P. Gupta on 26 April, 2013
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IN THE COURT OF SH. JAGDISH KUMAR: JSCC/ASCJ/GJ (EAST)
KARKARDOOMA COURTS: DELHI
Suit No424/08
UID 02402c0048162008
Sh. Subhash Chand Aggarwal
S/o Late Sh. Mangu Mal
R/o 3/62, Chotta Bazar,
Shahdara, Delhi32. Plaintiff
Versus
1 Sh. O. P. Gupta
S/o Sh. Raghunath Prashad
2 Sh. Lalit Gupta
S/o Sh. Om Prakash Gupta
3 Sh. Vinay Gupta
S/o Sh. Om Prakash Gupta
4 Kapil Gupta
S/o Sh. Om Parkash Gupta
All R/o H. NO. 3/303,
Bada Thakur Dwara, Shahdara,
Delhi32.
Also At:
Suit no. 424/08 page 1 of 16
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3/295, Bada Thakur Dwara,
Shahdara, Delhi32.
5 Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandani Chowk,
Delhi. Defendants
Date of Institution : 24.03.2004
Date of Argument : 26.04.2013
Date of Decision : 26.04.2013
Suit for Permanent and Mandatory Injunction
JUDGMENT
1 This is a suit for permanent and mandatory injunction filed by the plaintiff against the defendants. It is submitted that the plaintiff is the absolute owner and in possession of property bearing no. 3/304, Bada Thakur Dwara, Shahdara, Delhi32. It is submitted that defendants no. 1 to 4 are in possession of property bearing no. 3/303, Bada Thakur Dwara, Shahdara, Delhi32, said property is adjacent to the property of the plaintiff. It is submitted that the southern side wall of the plaintiff property is 14 inch width and alongwith the said wall of the plaintiff there is a house of the defendants no. 1 to 4. The plaintiff had purchased the property bearing no. 3/304, Bada Thakur Dwara, Suit no. 424/08 page 2 of 16 3 Shahdara, Delhi32 from his earlier owner vide document of sale dated 06.01.1995. It is submitted that the defendants no. 1 to 4 in collusion with each other and in order to harass the plaintiff started removing the wall of the portion at the adjacent to the wall and in that process they actually have removed a major portion of their wall and now have started removing the bricks of the wall of the plaintiff and are causing damage to the said wall.
2 It is submitted that the defendant no. 1 have also started raising unauthorized construction in their property bearing no. 3/303, Bada Thakur Dwara, Shahdara, Delhi32, without sanction from the MCD, and after removing the old construction. It is submitted that the defendants no. 1 to 4 are raising the pillar etc., due to which the wall of the plaintiff has also developed cracks and holes. It is submitted that one of the roof has also left its plaster. It is submitted that the property of the plaintiff is an old building and may fall and suffer further damages due to unauthorized construction. It is submitted that the defendants no. 1 to 4 have also raised unauthorized construction in the back portion of the property no. 3/303, Bada Thakur Dwara, Shahdara, Delhi32 by raising a structure up to the second floor unauthorizedly and without the sanction of the plan from the MCD.
3 It is further submitted that the defendant no. 5 i.e. the MCD
Suit no. 424/08 page 3 of 16
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and its employees are also in collusion with the defendant no. 1 to 4 and are not taking any action against unauthorized construction. The defendants no. 1 to 5 in collusion with each other and are adamant to remove bricks from the plaintiff's walls. The kaddies of the house of the plaintiff are also laying and resting over this wall. It is submitted that the defendant no. 1 to 4 have absolutely no right, title or interest in the walls and no right to raise any unauthorized construction even in the property in their possession without sanctioned plan. It is submitted that on 23.03.2004 the plaintiff requested the defendants no. 1 to 4 not to remove any bricks from the wall of the plaintiff and not to cause any damage to the wall but defendants no. 1 to 4 refused to accede the request of the plaintiff and have threatened that defendants no. 1 to 4 will not only remove the bricks but also raised construction over the wall of the plaintiff. It is submitted that defendant no. 5 and its official are helping the defendants no. 1 to 4 in raising unauthorized construction. Hence the present suit for permanent and mandatory injunction.
4 Summons of the suit were issued to the defendants. The defendant no.1 to 4 have put their appearance and have filed their joint WS. The defendants have took preliminary objection that plaintiff is not the owner of the property and has no right, title and interest in the property. It is submitted that no construction as alleged by the plaintiff Suit no. 424/08 page 4 of 16 5 is carried out by the defendants. It is submitted that only repair work is going on for which no permission is required. It is submitted that no damage is caused to the plaintiff by the repairs being carried out by the defendants and the suit is without any cause of action. 5 While replying of merit the defendants no.1 to 4 have stated that plaintiff is not the owner of the property no. 3/304, Bara thakur Dwara, Shahdara, Delhi32. It is submitted that the defendants are in possession of the property no. 3/303, Bara Thakur Dwara, Shahdara, Delhi32 and the said property is adjoining to the property of the plaintiff. It is submitted that the width of southern side wall of the plaintiff's property is only 4'' and not 14''. It is denied that the defendants no. 1 to 4 are in collusion with each other. It is denied that the defendants have removed a major portion of the wall or started removing the bricks of the wall of the plaintiff. It is submitted that the property of the plaintiff is more than 60 years old and now is in a very dilapidated condition. It is submitted that the third storey of the house of the plaintiff has already fallen down. It is submitted that the plaster from the walls of the plaintiff's property has already pealed off from many placed and the doors are being eaten by termite. It is submitted that the property of the plaintiff has not been damaged because of the repairs work of the defendants. It is denied that defendants are adamant to remove or intent to remove the bricks from the wall of the Suit no. 424/08 page 5 of 16 6 plaintiff. It is denied that defendants have ever threatened the plaintiff to involve in false criminal case. The defendant no. 1 to 4 have denied all other allegations leveled by the plaintiff against them and they have prayed for the dismissal of the present suit.
6 The defendant no. 5 filed its WS and has took preliminary objections stating that suit of the plaintiff is barred U/Sec.477 and 478 of DMC Act. It is submitted defendant no. 5 has already initiated action against the unauthorized construction carried out in the property bearing no. 3/303, Bada Thakur Dwara Shahdara, Delhi32 to the tune of one room, one kitchen, one bath, staircase, lobby at ground floor and one room, one bath, staircase and lobby at first floor. It is submitted that further action will be taken after following due process of law. It is also submitted that the front portion of the building which consists ground floor, first floor and second floor is old and occupied. The defendant no. 5 has denied all other allegations leveled by the plaintiff against it and prayed for the dismissal of the present suit. 7 Replication to the WS of defendants no. 1 to 5 filed by the plaintiff in which the plaintiff has denied the averments made by the defendants in their WS and have reiterated and reaffirmed the averments made as in the plaint by him.
Suit no. 424/08 page 6 of 16
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8 On the pleadings of the parties following issues were framed
on 14.09.05
1. Whether the suit is not maintainable for want of statutory notice U/Sec.477/478 of DMC Act? OPD.
2. Whether the suit is without any cause of action? OPD.
3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
4. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP.
5. Relief.
9 In PE plaintiff has examined himself as PW1 and relied upon the documents Ex.PW1/1 to Ex.PW1/8. In DE defendant no. 1 to 4 have examined Sh. Lalit Kumar Gupta as DW1 and relied upon the documents Ex.DW1/1 to DW1/25. The defendant no. 5 has not lead any evidence.
10 I have heard the Ld. Counsel for parties and gone through the record carefully. My issue wise findings is as under. ISSUE NO. 1
Whether the suit is not maintainable for want of statutory Suit no. 424/08 page 7 of 16 8 notice U/Sec.477/478 of DMC Act? OPD.
The onus to prove this issue is on defendant. The counsel for defendant no. 5 has not argued on this issue and has not brought to my notice that suit of the plaintiff is barred U/Sec.477 and 478 of DMC Act. On the other hand the present suit is a suit for injunction and U/Sec.478(3) a suit for injunction is maintainable without issuing a notice to the defendant no. 5. Because the plaintiff has sought the relief of injunction against the alleged illegal construction and giving of notice may make the suit infrutous. So, I am of the view that no notice is required to be issued in the present suit prior to filing of the suit. Issue no. 1 is decided in favour of plaintiff and the defendant no. 5. ISSUE NO. 2
Whether the suit is without any cause of action? OPD. The onus to prove this issue is on the defendants. Neither the plaintiff nor the defendants have argued on this issue. However, in the legal term the cause of action is a bundle of facts on which basis a party has approached the court. These bundle of facts needs consideration by the court. It does not matter whether the person who approach the court will succeed to get relief claimed by him. The plaintiff has alleged in the plaint that his premises is damaged by the Suit no. 424/08 page 8 of 16 9 defendants by the alleged illegal construction. So, I am of the view that the plaintiff has the cause of action to file the present suit. Issue is according decided in favour of the plaintiff and against the defendants. ISSUE NO. 3 & 4
Issue no. 3 Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP Issue no. 4 Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP.
Both these issues are taken up together being interconnected. Both the issues are required a detailed discussion. The onus to prove both these issues are on the plaintiff. The first question required to be considered is whether the defendants no. 1 to 4 have constructed any construction at the property bearing no. 3/303 Bada Thakur Dwara, Shahdara. It is clearly admitted by DW1 in his cross examination that the front portion of the property bearing no. 303 Bara Thakur Dwara up to 15 ft (length) from the front portion is old nd construction and has been raised up to 2 floor while the remaining back portion of the property was newly constructed. The old Suit no. 424/08 page 9 of 16 10 construction up to the second floor and up to 15 ft has been marked as CD in the plan Ex.PW1/1. The remaining portion Mark D to E in the plan Ex.PW1/1 is upto first floor (newly constructed). The witness DW1 also admits that the MCD after the filing of the present suit have punctured a portion of the lintel between the portion D to E. The defendant no. 5 MCD has also categorically stated in the WS that defendants no. 1 to 4 have constructed the construction without having passed a sanctioned building plan. The illegal construction has been booked vide file no. 245/B/UC/SH/S/2004 dated 25.03.04 and show cause notice has been issued against the illegal construction. It has been proved on record through testimony of PW1 as well as DW1 that the back portion of property 3/303, Bada Thakur Dwara, Shahdara, marked D to E on Ex.PW1/1, is newly constructed. The defendant no. 1 to 4 have failed to prove that they have constructed that construction after getting approval the sanctioned building plan from the defendant no. 5. The construction is without sanctioned building plan.
The next question is whether the defendant no. 1 to 4 have constructed any construction over the property of plaintiff. The photograph Mark D1/P1 which is also exhibited as Ex.DW1/2 clearly shows that the wall shown at point A to B in document Ex.PW1/1 are two walls. The walls are separate but are adjacent to each other. There is no expert report on record to ascertain the width of each wall Suit no. 424/08 page 10 of 16 11 or each flat brick. The width of each wall is about 4'' or 4'.5'', because it is a flat normal brick. And normally the width of the flat brick is about 4''. The PW1 has also admitted in his crossexamination that the wall shown on right hand side portion on document Ex.DW1/2 and mark D1/P1 belongs to him and width of the same is 4'' in thickness. The plea of the plaintiff that the entire wall belongs to him is not acceptable because the plaintiff has not placed on record any report/document or photographs which shows that the wall at point A to B on document Ex.PW1/1 was constructed by the lakori bricks (the bricks used for construction about 5060 years back). The plaintiff has not placed on record any documentary evidence which shows the thickness of the wall of his property as 14'' which he could have proved by adducing evidence. On the other hand the DW1 has categorically deposed that defendant no. 1 to 4 have not constructed over the property of plaintiff. The DW1 has also admitted in his crossexamination that the wall at point A to B shown in document Ex.PW1/1 is a separate wall. So, I am of the view that there are two separate walls at point A and B in document Ex.PW1/1 i.e. Site plan. One belongs to plaintiff and another belongs to defendant. The evidence on record shows that defendant no. 1 to 4 have not constructed at the wall of plaintiff.
The next question is whether any damages was causes to the property of plaintiff by alleged construction. The plaintiff has failed Suit no. 424/08 page 11 of 16 12 to brought on record any structural engineer's report whether cracks has been developed during or after the construction started by the defendants.
The plaintiff has also failed to prove that any exact damage is cause to his property by the raising of the construction by the defendants.
Now the question arises whether plaintiff is entitled for injunction as claimed by him, as this court has come to conclusion that defendants no. 1 to 4 have constructed construction at their property. without getting sanctioned building plan. It is argued by Ld. Counsel for plaintiff that defendants no. 1 to 4 have constructed illegal construction without following the rules and regulations as famed by MCD under DMC Act. It is further argued that defendant no. 5 has took partial action against illegal construction. Ld. Counsel for plaintiff has further argued that he is entitled for injunction as claimed by him in the present suit.
The relief of injunction is a relief granted under the law of equity. The hon'ble High Court of Kolkata in case titled as "Nand Lal Ladiya's case reported as AIR 1952 Kolkata 74 has observed "Under Section 54 and 55, Specific Belief Act, the plaintiffs may pray for a Suit no. 424/08 page 12 of 16 13 perpetual, or mandatory injunction to prevent the breach of an obligation existing in favour of he plaintiffs. In the present case there was no obligation contractual or otherwise, on the part of the plaintiffs towards the defendant, which required that the defendant should construct on his own land in accordance with Municipal rules and regulations. The plaintiffs therefore have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on the defendant's land may be in breach of Municipal Rules and Bylaws."
The Hon'ble High Court of Bombay in case titled as Narayan Dass S. Kanuga vs. Saraswati Bai D. Joshi & Ors. AIR 1968, Bombay 280 has observed that section 54 of the Specific Relief Act, enables the Court to grant perpetual and mandatory injunction to prevent the breech of an obligation existing in favour of the plaintiff whether expressed or implied, however, the same is again subject to exceptions. It was observed that the query, therefore, has to be "whether there exists an obligation in favour of the plaintiff and even where an obligation is made out unless the case falls within Section 56, injunction cannot be granted. Where the plaintiff can not and do not allege any recognizable right or obligation in them, nor the breech of the same they can not get a perpetual injunction nor can they get a temporary injunction.
Suit no. 424/08 page 13 of 16 14 The judgment clearly shows, that the plaintiff to get an order of injunction in his favour, must show that there is a recognizable right or obligation in his favour and breach of which gives right a cause of action to file a suit against the defendant. If such recognizable right or obligation does not exist, the plaintiff is not entitled to an injunction unless of course he is able to show that the act of the defendant would amount to actionable nuisance as a result of which he cannot use his own property in a peaceful manner. Whether the user of the property by the defendant would amount to actionable nuisance which may entitled the plaintiff to file a suit or claim injunction against the defendant is, therefore, required to be examined."
The Hon'ble Supreme Court of India in case titled as Kuldeep Singh Vs. Subhash Chander Jain and Ors. (2000)2 SCR 639 has observed that unless the pleadings set out as to what would be the nuisance and what is the injury which may be caused by the use of the premises by the appellants, no injunction can be granted and the suit in such an eventuality would be premature.
The Hon'ble High Court of Orrisa in case titled as Bhagirathi Sah and Ors. Vs. Ananta Narayan Dass Chaudhary and etc. AIR 1981 Orrisa 58 has observed "that the plaintiff who have acquired no right of easement but complained of injury on account of the violation of the Suit no. 424/08 page 14 of 16 15 Municipal plan and the rules. The plaintiff is therefore to establish not merely injury as damage but also a material injury. So, the plaintiff has to prove that there was an obligation in his favour and the defendants to have construct their property as per wishes of plaintiff. The construction by a neighbour may cause a little bit damage to the property of other in the form of seepage in the plaster or minor cracks. The plaintiff may have claim damage for that. But it is not the situation in the present suit because plaintiff himself has admitted that his property is in dangerous condition. As the property of the plaintiff is already in a damaged condition so he can not took the plea that his property has been damaged due to construction done by the defendants no. 1 to 4 in absence of any evidence on record. The plaintiff has failed to prove that he has suffered any injury/damages, so he is not entitled for injunction as claimed for by him.
But contrary to that the defendants no. 1 to 4 have constructed the construction without getting sanctioned building plan from the defendant no. 5. It is also their duty to follow the rules of construction as framed under DMC Act, 1957. It is also the duty of the defendant no. 5 to look that no building should be constructed without following the rules and regulations framed under the DMC Act, 1957. Though the defendant no. 5 has took action against the illegal construction constructed by the defendant no. 1 to 4. The court also Suit no. 424/08 page 15 of 16 16 expect from the defendant no. 5 that they will take action against the illegal construction if done by any person in its area including the defendants no. 1 to 4. With these observations the issues no. 3 and 4 are decided in favour of defendants and against the plaintiff. RELIEF So, in view of my issue wise findings the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
today i.e 26.04.13) JSCC/ASCJ/GJ(East)
KKD COURT
Suit no. 424/08 page 16 of 16
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Suit no. 424/08
26.04.13
Present: Counsel for plaintiff.
Counsel for defendants no. 1 to 4.
Counsel for defendant no. 5.
Arguments heard.
Put up at 4.00 p.m. for order.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East) KKD
COURTS/26.04.13
At 4.00 p.m.
Present: Proxy counsel for plaintiff.
Proxy counsel for defendants no. 1 to 4.
Proxy counsel for defendant no. 5.
Vide separate judgment, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East) KKD
COURTS/26.04.13
Suit no. 424/08 page 17 of 16
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Suit no. 424/08 page 18 of 16
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IN THE COURT OF SH. JAGDISH KUMAR: JSCC/ASCJ/GJ (EAST) KARKARDOOMA COURTS: DELHI M89/08 U ID 02402C0236332005 Sh. Subhash Chand Aggarwal ......Petitioner Vs. Sh. Om Parkash Gupta & Ors. ......Respondent ORDER 1 This order shall dispose of the application of the applicant/plaintiff moved U/Sec.195 r/w Sec.340 Cr. P. C. Vide present application the applicant is seeking the proceeding to be initiated against the respondents U/Sec.340 Cr. P. C. The facts stated in the application are that the defendant no. 5 MCD has filed an ATR report signed by the Assistant Zonal Engineer (building) Shahdara South. The MCD have wrongly stated that demolition action was taken by MCD on 14.06.04. It is further alleged the the MCD has filed a false report stating therein that they have demolished the RCC roof slab of the first floor.
Suit no. 424/08 page 19 of 16
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2 I have gone through the record carefully and perused the
photographs placed on record and also status report filed on 07.08.04 in which the MCD has stated that demolition action was taken on 14.06.04 and demolished RCC roof slab of first floor. The photographs also filed along with status report which shows that the lintel has been punctured by defendant no. 5. The demolishing of entire RCC roof slab or partial have the same meaning as the demolition has made the premises inhabitable. So, I am of the considered view that it is not in the expedient in the interest of justice to make a complaint U/Sec.340 Cr. P. C. So, the petition is dismissed.
(Announced in open Court (JAGDISH KUMAR)
today i.e 26.04.13) JSCC/ASCJ/GJ(East)
KKD COURT
Suit no. 424/08 page 20 of 16
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M89/08
26.04.13
Present: Counsel for plaintiff.
Counsel for defendants no. 1 to 4.
Counsel for defendant no. 5.
Arguments heard.
Put up at 4.00 p.m. for order.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East) KKD
COURTS/26.04.13
At 4.00 p.m.
Present: Proxy counsel for plaintiff.
Proxy counsel for defendants no. 1 to 4.
Proxy counsel for defendant no. 5.
Vide separate order, the contempt petition of the plaintiff is dismissed. No order as to cost.
File be consigned to Record Room.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East) KKD
COURTS/26.04.13
Suit no. 424/08 page 21 of 16