Delhi District Court
Ravi Arora vs M/S. Aayushi Retails Pvt. Ltd on 3 February, 2025
IN THE COURT OF SH. RINKU JAIN, JSCC/ASCJ/GJ-01
(CENTRAL) TIS HAZARI COURTS, DELHI
CS No. 2086/2022
CNR NO. DLCT03-004343-2022
IN THE MATTER OF:-
Ravi Arora
S/o Sh. Prem Chand Arora
Owner of Property No. : 491 (Part),
Second Floor, Sadar Bazar, Delhi ....Plaintiff
Versus
1. M/s Ayushi Retails Pvt. Ltd.
Through : Sh. Mukesh Gupta, Director
Regd. Office : A-178, Basement,
Shivalik, Near Malviya Nagar,
New Delhi.
2nd Address :
Property No. 491 (Part),
Sadar Bazar, Delhi-06.
2. Mukesh Gupta, Director,
M/s Ayushi Retails Pvt. Ltd.
Regd. Office : A-178, Basement,
Shivalik, Near Malviya Nagar,
New Delhi.
2nd Address :
Property No. 491, Bartan Market,
Sadar Bazar, Delhi-06.
3. Municipal Corporation of Delhi
Through the Commissioner,
Office of the Chief Law Officer,
17th Floor, Civic Centre,
CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.1 of 12
SP Mukherjee Marg,
Delhi-02 ....Defendants
Date of Institution : 26.08.2022
Date of Reserving the Order : 30.01.2025
Date of Decision : 03.02.2025
Decision : Partly decreed
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
Pleadings of the plaintiff:-
1. Briefly stated, the facts as mentioned in the plaint are that plaintiff is the absolute owner and in occupation of second floor premises alongwith terrace (left side) of property bearing no. 491, Bartan Market, Sadar Bazar, Delhi (hereinafter referred to as 'suit property') by way of registered gift deed executed by father of the plaintiff in his favour. The defendant no. 1 and 2 purchased second floor portion alongwith terrace (right side) of the suit property.
2. It is further stated that defendant no. 1 and 2 have made illegal and unauthorized addition in the suit property on the right hand portion. It is stated that there is a common staircase for all the floors. The entrance to the portions of the plaintiff and defendants no. 1 and 2 are different. However, the staircase is CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.2 of 12 common. There is a T point at the end of the staircase with one room on each sides. These rooms are in possession of the plaintiff and defendants no. 1 and 2 on the respective sides.
3. It is further stated that in the month of December 2019, defendants no. 1 and 2 forcibly broke open the T point common wall and unlawfully constructed a covering of about 3 feet 7 inches over the staircase, leaving only 2 feet 2 inches common wall towards the plaintiff's side. Defendants no. 1 and 2 also constructed a staircase leading from second floor to upper floor from inside of their portion of the property, unauthorizedly and illegally.
4. It is further stated that when the plaintiff objected to the illegal act break opening of the T point wall by defendants no. 1 and 2, the construction work stopped and an assurance was given to the plaintiff that defendant shall restore the T point wall to its original position. However, defendants failed to restore the T point wall to its original position. Defendants carried on the unauthorized construction and also completed the construction of third floor and above. The unauthorized construction raised by defendants no. 1 and 2 has damaged the property of the plaintiff.
Defendant no. 3/MCD has failed to stop defendant no. 1 and 2 from raising unauthorized and illegal construction, in spite of complaints made by the plaintiff. The extra coverage of the staircase made by defendants no. 1 and 2 has substantially damaged the property of the plaintiff. Hence, the present suit CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.3 of 12 seeking directions to be given to defendants no. 1 and 2 for removing the unauthorized construction in the staircase and to restore the staircase leading from second floor to third floor to the original position. Plaintiff also seeks directions to be given for removal of unauthorized construction hanging/leaning towards the side of the plaintiff's property.
5. Summons of the present suit were issued and were duly served upon all the defendants. Written statements were filed by all the defendants.
Pleadings of the defendants:-
6. In the written statement filed on behalf of defendant no. 1 and 2, it is stated that the present suit is without any cause of action and plaintiff has no locus standi to file the present suit. Plaintiff has filed the present suit to pressurize the defendants as he wishes to purchase the property of defendants no. 1 and 2 at low prices. Plaintiff has not stated the correct and true facts as plaintiff has not filed any sanction plan of his own property.
7. It is further stated that plaintiff approached defendant no. 2 for the purchase of property of defendant no. 1 at low price but when defendant no. 1 and 2 did not agree to sell the property, plaintiff has filed the false and frivolous suit just to pressurize the defendants.
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8. In the written statement filed by defendant no. 3/MCD, it is stated that the suit property has been booked by the MCD under Section 343 and 344 of the DMC Act for unauthorized construction in the shape of third and fourth floor and for demolition work of second floor. A demolition order regarding the same was passed on 16.12.2016 directing the owner of the property to demolish the unauthorized construction. Sealing action has also been initiated by the MCD. The unauthorized construction has been sealed by the MCD. It is also stated that SHO concerned has been requested to lodge an FIR to tempering with the seal affixed by the MCD.
9. It is further stated that the suit of the plaintiff is barred for want of statutory notice under Section 477/478 of DMC Act, 1957. This suit is without any cause of action and is liable to be dismissed as action has already been initiated under the relevant provisions of DMC Act.
Replication:-
10. In the replication filed on behalf of the plaintiff, all the defences taken by the defendants are stated to be wrong and baseless and the same have been categorically denied by the plaintiff as false.
Issues:-
11. After completion of pleadings, issues were settled CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.5 of 12 and from the pleadings, following issues were framed:-
1. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed in the plaint? OPP
2. Whether the plaintiff himself does not have any sanctioned site plan of his property? OPD 1 & 2
3. Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD-3
4. Relief.
Evidence of the plaintiff:-
12. After settlement of issues, matter was fixed for plaintiff's evidence. Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW1/A. He reiterated the facts of the plaintiff in his evidence affidavit and relied upon following documents: -
1. Ex.PW-1/1 (OSR) is Regd. Gift Deed.
2. Ex.PW-1/2 (OSR) is copy of sale deed.
3. Ex.PW-1/3 is the site plan.
4. Ex.PW-1/4 is photograph unauthorizedly breaking open the wall and fixed the shutter in the staircase (wrongly mentioned as Ex.PW1/5 in the evidence affidavit).
5. Ex.PW-1/5 is photograph showing stairs towards second floor to third floor.
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6. Ex.PW-1/6 to Ex.PW1/8 are the photographs showing illegal construction towards my property.
7. Ex.PW-1/9 is snaps/photographs showing illegal construction of third floor and fourth floor.
8. Ex.PW-1/10 is Certificate under Section 65-B of IE Act.
9. Ex.PW-1/11 is the notice (objected to by Ld. counsel for defendant No.3/MCD as notice is not under section 477/478 of DMC Act).
10. Ex.PW1/12 to Ex.PW1/17 are the postal receipts and tracking reports.
11. Ex.PW-1/18 (colly.) (running into 32 pages) are the copies of medical record of my mother is de-
exhibited and marked as Mark-A.
13. Plaintiff was not cross-examined on behalf of either of the defendants in spite of the opportunity and therefore, right to cross-examination of PW-1 was closed.
14. Thereafter, in view of the submissions of Ld. Counsel of the plaintiff, PE was closed vide order dated 13.09.2024 and the matter was fixed for DE.
15. It was submitted on behalf of defendant no. 3 that no DE shall be led on their behalf. Therefore, right to lead DE on behalf of defendant no. 3 was closed. The right of defendants no. 1 and 2 to lead DE was also closed due to non appearance of CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.7 of 12 defendants no. 1 and 2. Thereafter, matter was fixed for final arguments.
Decision with reasons:-
16. I have heard the arguments advanced on behalf of both the sides and I have carefully gone through the judicial record. The issue-wise finding is as follows:-
Issue No.1:-
Whether the plaintiff is entitled to the decree of mandatory injunction as prayed in the plaint? OPP
17. The onus to prove this issue was upon the plaintiff.
The evidence of the plaintiff remained unrebutted and uncontrovered. There is no reason as to why the un-rebutted and un-controverted oral and documentary evidence of the plaintiff should not be relied upon. PW-1/plaintiff has proved his ownership over the suit property by way of registered gift deed Ex. PW1/1 (OSR). He has also proved the previous chain i.e. the copy of sale deed in favour of his father Ex. PW1/2 (OSR). These documents clearly mention that the staircase leading from second floor to third floor is common and is not owned by any particular person. Plaintiff has also proved the site plan Ex. PW1/3 and photographs Ex. PW1/4 and Ex. PW1/5 to show the encroachment on the common staircase.
18. As far as the issue regarding unauthorized construction in the form of third and fourth floor in the suit CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.8 of 12 property is concerned, the same is dealt with by the Hon'ble High Court of Delhi in Rajendra Motwani & Ors. vs. MCD & Ors., RSA No.243/17 dated 16.10.2017, wherein it was held that:-
"8. The second reason for rejecting the argument urged on behalf of the appellants/plaintiffs is that an illegal construction in itself does not give any legal right to a neighbor. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to light and air is only in terms of Section 15 of the Easements Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easements Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbor of living in his own house or prevents the neighbor from carrying on his accustomed business in the dominant heritage/his own house. All these are factual aspects and admittedly there is no cause of action which is laid out in the plaint in terms of Sections 15 and 33 of the Easements Act that right to easement of the appellants/plaintiffs has become absolute as it has been enjoyed for 20 years and that in fact after rights to easement are acquired by prescription there is also a substantial damage to the appellants/plaintiffs or there is material interference in the physical comfort of the appellants/plaintiffs or the appellants/plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage/own property."
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19. In view of the law laid down by Hon'ble Delhi High Court as discussed above, there is no averment whatsoever regarding any easementary rights being affected by the alleged illegal construction being raised by defendants n o.1 and 2. In view of the above discussion, it is concluded that the plaintiff has been able to establish his case qua the staircase and encroachment upon the common staircase leading from second floor to third floor in the suit property. However, plaintiff has no cause of action, in the absence of any pleading regarding infringement of any easementary right, no relief regarding demolition of third and fourth floor can be granted. The protection of National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 is not applicable in the present set of facts as the said protection is not afforded to a person infringing upon the right of another individual. The protection is available only w.r.t. the action to be taken by the MCD.
Issue No.2:-
Whether the plaintiff himself does not have any sanctioned site plan of his property? OPD 1 & 2
20. The onus to prove this issue was upon defendants No.1 and 2. No evidence whatsoever has been led on behalf of defendants No.1 and 2 to discharge their onus of proof. Therefore, this issue is decided against defendants No.1 and 2 and in favour of the plaintiff.
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Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD-3
21. Burden to prove this issue was on the defendant No. 3/MCD. It is the objection of defendant No. 3/MCD that the present suit is barred under sections 477/478 of DMC Act for want of statutory notice. The objection is not legally tenable. The basic object of sections 477/478 of DMC Act is to prevent matters from coming to Court and once the matter has reached the court and is contested, the suit ought not be dismissed on technical grounds. In this regard, reliance can be had to the judgment of Col. A. B. Singh (through LRs) v. Shri Chunnilal Sawhney and Others, 2011 SCC OnLine Del 4289. Therefore, once defendant No.3/MCD has contested the present suit, it cannot be dismissed by recourse to section 477 and 478 of DMC Act. Accordingly, this issue is decided against defendant No. 3 and in favour of the plaintiff.
Relief:
22. In view of the above discussion and findings, the suit of the plaintiff is partly decreed and defendants no.1 and 2 are directed to remove the unauthorized construction of the staircase by removing the T point common wall measuring 3' 7'' leading from second floor to third floor and restore the said CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.11 of 12 staircase climbing from second floor to third floor in property bearing No.491, Bartan Market, Sadar Bazar, Delhi to the original position i.e. after removing the construction in the staircase. No order is made regarding the construction in the form of third and fourth floor allegedly made by defendants No. 1 and 2 in the right side portion of property bearing No. 491, Bartan Market, Sadar Bazar, Delhi.
23. No order as to costs.
24. Decree sheet be prepared accordingly.
25. File be consigned to the Record Room after due compliance. Digitally signed by RINKU Announced in open Court RINKU JAIN on this 03rd Day of February, 2025 JAIN Date:
2025.02.03 16:54:37 +0530 (RINKU JAIN) JSCC/ASCJ/GJ-01 (CENTRAL) TIS HAZARI COURTS/DELHI CS No. 2086/2022 Ravi Arora Vs. M/s Ayushi Retails Pvt. Ltd. & Anr. Page No.12 of 12