Delhi District Court
Smt. Krishna Bharat vs Shri J.K. Garg on 4 September, 2009
IN THE COURT OF SHRI GORAKH NATH PANDEY, JSCC/ASCJ/GUARDIAN
JUDGE(NE)
Suit No. : 62/09
Date of institution: 26.03.2004
Date of hearing final arguments: 26.08.009
Date of Decision : 04.09.2009
Number of pages: 27
In the matter of :
Smt. Krishna Bharat
d/o Shri Sadhu Ram
r/o 136 B, first floor,
DDA flats, Pocket J & K,
Dilshad Garden, Delhi.
......... Plaintiff.
Versus
1. Shri J.K. Garg,
136 A, ground floor,
DDA flats, Pocket J & K,
Dilshad Garden, Delhi.
2. Municipal Corporation of Delhi
through its commissioner
Town Hall, Chandni chowk,
Delhi.
3. Smt. Suman Lata Garg
136 A, ground floor,
DDA flats, Pocket J & K,
Dilshad Garden, Delhi.
.............. Defendants
SUIT FOR MANDATORY AND PERPETUAL INJUNCTION.
JUDGMENT:
The brief and relevant facts for the filing of this suit is as follows.
The plaintiff is the owner in respect of flat on the first floor bearing flat no. 136 B, Pocket J & K Dilshad Garden, Delhi which was purchased from Delhi Development Authority. The DDA constructed flats from ground floor to third floor and the ground floor flat bearing no. 136 A, is in possession of defendant. On 14.03.2004 the defendant started making unauthorized addition and alteration in his flat in ground floor. He removed the wall which is load bearing wall in order to create more space and connect front varandah in the room. The removal of the wall was likely to cause irreparable loss as the load of three floors shall fall over the roof of ground floor. In order to get more space in the ground floor the defendant was to temper with the originally laid storm water pipes to different place from the first floor. The defendant want to put bends and to take away the storm water pipes to a different location and then connect the same in another HODI which is going to cause nuisance of choking in the pipes. The defendant intentionally has tempered with the designs of storm water pipes which have been fixed above the HODI and the defendant lowered down the pipe inside the HODI and thereafter has been causing obstruction in discharge of the water. By putting the pipe inside the HODI, if sufficient discharge is not made the same is likely to cause flood in the first floor thereby causing damage. Hence this suit is filed by the plaintiff against the defendant for directing the defendant to restore back the originally designed storm water pipe and not to upset the site and the HODI and also for restoring of the wall and also for restraining the defendant from making un authorized additions and alterations in the ground floor portion.
2. The WS with counter claim was filed by defendant no.1 contending that the plaintiff has no locus standi to file the present suit against the defendant and the suit is liable to be dismissed under order 7 rule 11 CPC; this suit is not maintainable and liable to be dismissed with cost. The defendant no.1 denied regarding ownership of the suit property. It is further contended that the owner of the flat on the ground floor has placed the temporary plastic shed on the open courtyard so that any item or water etc. may not fall in the courtyard of the owner of the ground floor flat. The plaintiff wanted to raise the pacca construction on the courtyard portion of the owner of ground floor flat so that the plaintiff may use the same to which the owner of flat of ground floor did not agreed. The defendant prayed for demolition of room and balcony portion as shown in red colour in the plan attached by the plaintiff to which the plaintiff has stated in the plaint that the defendant has raised the unauthorized construction by covering the back side portion by pacca construction and that the defendant has converted the same in a room and balcony. The defendant further contended that the plaintiff has not approached the court with clean hands and suppressed the material facts and the suit of the plaintiff is liable to be dismissed. It is further contended that the construction was raised by the plaintiff in the absence of defendant and in the absence of the owner of ground floor flat, after removal of plastic shed without consent of the owner of ground floor flat and defendant. Defendant further denied rest of the material contentions of the plaintiff in his plaint and prayed to dismiss the suit with heavy cost.
Written statement was also filed by defendant no.2 Municipal Corporation of Delhi mentioning this suit is barred by the provisions of section 477/478 of DMC Act for want of statutory notice and is liable to be dismissed in view of provisions of section 41 (h) & (i) of Specific Relief Act and the suit is filed without any cause of action. There is no cause of action for filing of this suit. The defendant no.2 further mentioned that the suit of the plaintiff is not maintainable in view of the fact that the answering defendant has already initiated action against the unauthorized construction carried out in the suit premises vide file no. 114/B/UC/Sh/S/2004 dated 31.08.2004. Defendant no.2 further contended that the plaintiff also carried out unauthorized construction in flat no. 136 B at first floor by covering open courtyard in rear setback into one room at first floor and the same was booked vide file no. 115/B/UC/Sh- S/2004 dt. 31.08.2004 and the owners of flat no. 136 C & 136 D also carried out unauthorized construction by way of covering open courtyard in rear setback into one room and second floor and third floor and the same were also booked with the MCD and as such no specific direction is liable to be given to the answering defendant in the present suit. It is further contended unauthorized construction was carried out by the defendant no.1 as well as plaintiff and other owners of flat no. 136 A, 136 B, 136 C and 136 D and the same was without sanctioning from the answering defendant and accordingly the same was booked and further action is liable to be taken under the provisions of DMC Act and as such unauthorized construction is liable to be demolished and plaintiff is not entitled for any relief.
Defendant no.3 also reiterated and re produced the averments as mentioned by the defendant no.1 in one way or the other.
3. Replication to the written statement of the defendants was also filed by the plaintiff separately whereby the plaintiff while reiterating the contents as mentioned in the plaint, denied the averments of the defendants as mentioned in written statements.
4. In view of pleading of the parties, following issues were framed vide order dt. 04.05.2005.
1. Whether the suit is barred for want of statutory notice u/s 477/478 of DMC Act? (OPD)
2. Whether the plaintiff has not come before this court with clean hands and has suppressed the material facts ? (OPD1)
3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? (OPP)
4. Whether the defendant is entitled to the relief claimed in the counter claim? (OPD)
5. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for ? (OPP)
6. Relief.
And the case was thereafter fixed for plaintiff evidence.
5. Plaintiff filed his affidavit by way of evidence and was examined as PW1 who deposed regarding the case as mentioned in the plaint and in fact the witness has reiterated and re produced the averments as mentioned in the plaint on oath. The witness lastly deposed that this suit is correct and prayed for passing decree in his favour. The PW also proved the relevant documents i.e. site plan Ex. PW1/1, information to police on 14.03.04 regarding the removal of the wall and information to DDA on 07.04.04 Ex. PW1/2 and Ex. PW1/3.
Shri Vishwanath Bharat filed his affidavit by way of evidence and was examined as PW2. He exhibited site plan Ex. PW2/1 and his report Ex. PW2/2.
Shri Mahender Sharma is a summoned witness. He has brought the summoned record i.e. statement of account of Shri Jai Kishan Garg and Shri Ajay Garg saving account no.572 for the period 01.12.99 to 31.12.99 and exhibited the same as Ex. PW3/1.
Shri Ravi Seth, a summoned witness also examined as PW3 who brought the certified copy pertaining to account of Shri Vishwanath Bharat, bearing no. 55007255807 cheque dt. 02.12.1999 and also brought the certified copy of specimen signatures along with photographs of the account holder. He has exhibited statement of account Ex. PW3/1, photograph of account holder Ex. PW3/2, specimen signature of account holder Ex. PW3/3, certified copy of original cheque no. 183916 dt. 02.12.1999 for Rs.5000/- Ex. PW3/4. Witness further deposed that all these documents are attested by Shri Karlos Toplo, Asstt. Manager, State Bank of Patiala and witness has identified his signatures. As no other witness remained to be examined by the plaintiff, the PE was closed and the case was fixed for DE.
6. The defendant no.1 filed his affidavit by way of evidence and was examined as DW1 who deposed regarding his case as mentioned in the written statement on oath and in one way reproduced the written statement.
Defendant no.3 Suman Lata Garg filed her affidavit by way of evidence and was examined as DW2. She reiterated the testimony of DW1 and deposed regarding the facts as mentioned in the written statement on oath and in one way reproduced the written statement.
Shri R.L. Kain, as retired executive engineer from CPWD was summoned and examined as DW4 and deposed that the defendants have not made any alteration or changes in the flat including the BEEM of the building; no alteration in the building by defendant no.1 and 3 will make the same prone to the accident due to earthquake.
Other DW Sarveshwar Saran Gopal examined as DW5 that defendant no.1 an 4 have not made any alteration and have only replaced the floors. The witness further reproduced the testimony as deposed by other DWs.
As observed, the defendant no. 2 failed to lead evidence in support of claim and contentions despite opportunities. The DE was thereafter closed.
7. I have heard final argument on behalf of parties and gone through the relevant records.
It is argued by the counsel for plaintiff that the suit of the plaintiff is proved in view of the testimony of witnesses and materials on record and prayed to pass decree in favour of the plaintiff. The defendant have unauthorizedly altered the construction of the building making the same prone to the earthquake being situated in Delhi and also causing inconvenience after changing the sever lines. The defendants have taken false plea.
The argument on behalf of the defendants is that this is a false suit filed to harass the defendants. The plaintiff himself has carried out unauthorized construction and is not entitled for the discretionary relief of injunction as prayed in the suit. There is no cause of action for filing of this suit and prayed to dismiss the suit with exemplary cost.
8. My findings on the above said issues are as follows:
Issue NO. 1 and 2.
1. Whether the suit is barred for want of statutory notice u/s 477/478 of DMC Act? (OPD)
2. Whether the plaintiff has not come before this court with clean hands and has suppressed the material facts ? (OPD1) The onus to prove these issues was on the defendants.
As observed, the plaintiff has filed this suit initially against defendant J.K. Garg thereafter DDA was impleaded as defendant no.2. The WS was filed by the DDA along with an application u/o 1 rule 10 CPC for deleting DDA from the array of the parties in view of the notification in favour of the MCD. The DDA was thereafter deleted from the array of the parties and the MCD was impleaded as Defendant no.2 in this case. Again Smt. Suman Lata Garg wife of the defendant no.1 was impleaded as defendant no.3 being owner of the suit property and necessary party to the suit. The status report and WS was filed by the MCD mentioning that this suit is barred by section 477/478 of DMC Act; there is no cause of action for filing of this suit; plaintiff has suppressed the material facts and suit is barred in view of section 41 (h) & (i) of Specific Relief Act. Accordingly these issues were framed.
The plaintiff also filed replication to the WS of MCD simply denying the contents.
I have gone through the relevant provisions i.e. section 477/478 of DMC Act. Section 478 mentioned-
(1) No suit shall be instituted against the corporation or again any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done or purporting to have be en done, in pursuance of this Act or any rule regulation or bye law made thereunder until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of the residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit, such as is described in section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing in sub section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponment of the institution of the suit.
In view of the provisions above mentioned, it is mandatory to issue legal notice u/s 478 of the DMC Act for impleading MCD. No such legal notice was at all issued by the plaintiff in this case admittedly to MCD or for taking any action in the matter. Moreover the action has also been taken by the MCD against unauthorized construction. This suit of the plaintiff is accordingly barred for want of statutory notice u/s 477/478 of the DMC Act. Issue no.1 is disposed off against the plaintiff.
It is further mentioned that the plaintiff has suppressed the material facts and not approached the court with clean hands. The brief and relevant facts of this suit have already been mentioned at the outset and it is needless to mention that the plaintiff knowingly and intentionally failed to disclose and rather concealed the factum of the unauthorized construction by the plaintiff himself along with the action taken by the MCD against the unauthorized construction of the plaintiff as well as others as pointed out in the WS. The contents of the defendant is not denied by the plaintiff specifically, particularly in regard to the action of the MCD as pointed out. The plaintiff is seeking the discretionary relief of injunction and must should approach the court with clean hands. It is also settled proposition that a party who seeks equity must also do equity. I do not find any basis of the concealment of these facts i.e. regarding the unauthorized construction by the plaintiff himself, action taken by the MCD etc. by the plaintiff in the pleadings. The same itself is sufficient to substantiate the contention of the defendants in the WS. The testimony of the DWs is also in this respect which remained unimpeached. Plaintiff himself is a wrong doer in this case. It is accordingly proved that the plaintiff has suppressed the material facts and has not come to the court with clean hands. This issue no.2 is also decided against the plaintiff. Issue no. 3 to 5.
3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? (OPP)
4. Whether the defendant is entitled to the relief claimed in the counter claim? (OPD)
5. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for ? (OPP)
9. As all these issues are liable to be disposed off and adjudicated by the common facts, to examine these issues and decide the controversy on merits more effectively and for the purpose of convenience, these issues are examined and decided together.
The brief and relevant facts for filing of this suit along with the defence of the defendants, and the testimony of the witnesses examined by the parties, has already been mentioned at the outset. The plaintiff has prayed by way of mandatory injunction to direct the defendants to restore back the wall along with other addition and alteration made by the defendant in flat no. 136 A ground floor Pocket J & K Dilshad Garden Delhi and for restraining the defendants from making any unauthorized addition or alteration. The defendants have prayed by way of counter claim for removal of all the unauthorized construction made in flats against DDA bye laws by the plaintiff and other residents of flat no. 136 A to D. It is necessary and relevant to mention that flat number 136 B to D including the flat of the plaintiff herein is situated just above the floor of the defendants upto three stories and all the occupants i.e. plaintiff, defendants, occupants of second and third story i.e. flat no. 136 C and D have carried out unauthorized and illegal construction in view the WS of the defendant no.2 / MCD. Moreover the MCD has initiated action against the unauthorized construction vide order dt. 31.08.2004 against all the occupiers of the four flats. It is also apparent from the WS of the MCD though the unauthorized construction was booked no further action was taken in view of the provisions of the DMC Act against the unauthorized construction. It is also needless to mention that MCD being a statutory body is liable and responsible for the action against any unauthorized and illegal construction as per law.
10. I have gone through the relevant provision of law along with the general principles for grant of injunction. The injunction is a discretionary relief and its grant or refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful.
Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equal efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to dis-entitle him to the assistance of the court.
Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
Section 39 of the Specific Relief Act contains the provisions of mandatory injunction wherein it is mentioned that-
"when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may its discretion grant any injunction to prevent the breach complaint of, and also to compel the performance of the requisite acts".
Like the permanent injunction, the jurisdiction to grant of mandatory injunction is also discretionary and the court before granting such injunction will weigh all the facts and circumstance with great caution. When the plaintiff himself is responsible for the breach of an obligation, the plaintiff cannot be entitled for the discretionary relief of injunction as prayed so long his own structure remained along with his wrongful act. Further the plaintiff claiming equitable relief is bound to prosecute without delay unlike this case and while considering the such relief, the court can refuse its discretion to a person who has been sleeping over his rights and who has made a stale demand. Rather in this case, the plaintiff has no right, moreover the plaintiff himself is also a wrong doer and also against whom complete action has not been taken by defendant no.2/MCD.
11. The sole question in this case to be adjudicated is not regarding the strength of the building effected by way of construction by the parties in this suit unauthorizedly nor the same is relevant because a wrongful act is wrong even if provides the strength to the building. The litigant cannot be permitted to carry out unauthorized construction without following the rules and bye law of the MCD simply on the ground that his construction do not diminishes the strength of the building while the construction by the others effects the strength of the building and the building may collapse. Even further there is no authoritative evidence in this regard from any of the parties and the evidence if any brought on record is merely of a interested witness who is prosecuting the case. No independent witness has been produced in this regard at all. I, therefore, do not find any basis to examine the feasibility as well as effect of unauthorized construction on the life of the building in detail nor the same is warranted in this case.
12. The plaintiff is also the contributory in an unauthorized construction like the defendants and the MCD is also equally at fault being not taken action against the unauthorized construction as per rules despite initiation of the legal proceedings in this respect. I failed to find any reason as to why the appropriate action was not taken by the MCD in pursuance of the notice and in furtherance of unauthorized construction carried by the parties in this suit. The effect of the relief prayed by the plaintiff as well as the relief in the counter claim prayed by the defendant is the same i.e. the removal of unauthorized construction by the parties and equally the duty is cast on the MCD to remove the unauthorized construction carried out in contravention of the sanctioned plan. The unauthorized construction is liable to be removed irrespective of the fact that it is carried by the plaintiff or the defendants.
Admittedly the plaintiff and defendants not taken permission from MCD and carried out unauthorized construction, the MCD initiated action and booked them vide order dt. 31.08.2004. the action of the MCD was not carried out further to its end. All these issues are framed in this respect and the only dispute to be adjudicated is whether the unauthorized construction by the parties is liable to be demolished and if the answer is in affirmative, what was the action taken by the MCD or whether the plaintiff is entitled to the relief as prayed in the suit. There is laches also on the part of the plaintiff till taking action against the defendants for unauthorized construction if any at all. The action of the MCD was not challenged before any competent authority nor the appropriate steps were taken by anyone in this respect. Accordingly the non action by the MCD with respect to the show cause notice as well as non execution of the demolition order itself explains and it is sufficient to show the state of affairs and the action taken by the MCD in this regard. It is needless to mention that the defendant MCD is bound to take action as per law as per the DMC Act 1957. Though the partial action was taken but by way of non execution of the demolition order, the MCD has failed to take legal action against unauthorized construction by the defendants.
13. The parties of this suit were obliged to raise construction as per the sanctioned plan and by due permission of the MCD and MCD inter alia on the other hand was also obliged to ensure such construction failing which to take action as per the DMC act 1957 with respect to the unauthorized construction against the defendants. Needless to mention in this case despite the booking of the premises, as above mentioned, no further steps were taken by the MCD and the demolition was not carried out as per law and the MCD has failed in its obligations totally without any ground. Therefore this suit was filed for directing the MCD to demolish the unauthorized construction and the parties are entitled for the relief as prayed in this respect. Issue no. 4 and 5 accordingly disposed off and the defendant no.2 is directed to demolish the unauthorized construction in pursuance of action taken vide booking dt. 31.08.2004.
14. As regards the relief of the plaintiff for restraining the defendants from carrying out other unauthorized construction, the statement of the defendant was already recorded. Moreover the relief of permanent injunction cannot be granted to the plaintiff like in this case as the suit in this respect is barred in view of section 41 (i) of the Specific Relief Act. The plaintiff himself has not approached the court with clean hands and is wrong doer. The plaintiff cannot be granted discretionary relief of injunction accordingly. Issue no. 3 is disposed off against the plaintiff.
RELIEF In view of above said discussions and findings, the suit of the plaintiff and counter claim of the defendant is decreed with respect to the demolition of unauthorized construction. The plaintiff and defendant no.1 and 3 are directed to demolish the unauthorized construction within two months failing which defendant no. 2 is directed to demolish the unauthorized construction as above mentioned in view of show cause notice/booking dt. 31.08.2004 issued to the occupiers of the flats. Action taken report be filed by the MCD accordingly. No order as to cost in the facts and circumstances of the case. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (G.N. Pandey) Court on 04th Day of September, JSCC/ASCJ/G.Judge(NE), 2009. Karkardooma Courts, Delhi.