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Delhi District Court

Bhagwan Dass Bhutani vs Savitri Gupta And Ors on 3 March, 2016

                      IN THE COURT OF CIVIL JUDGE­07,
                  CENTRAL DISTT., TIS HAZARI COURTS, DELHI.
                      Presiding Officer: Ms. AANCHAL, DJS

CS No. 21/13

Bhagwan Dass Bhutani                                                                                       ......... Plaintiff
                                                                       Vs.
Savitri Gupta and Ors.                                                                                     ......... Defendants


                                                                                                Date of order : 03.03.2016

                                                                  ORDER

Vide this order, this court shall decide the application u/O 39 Rule 1 & 2 CPC filed by the plaintiff seeking temporary injunction against the defendants nos. 1 and 2 thereby restraining them from raising any further construction on 1st floor and above the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­06 till the final disposal of the suit.

Arguments have been heard and record is perused carefully. It is the case of the plaintiff that he is owner of the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­06 forming part of property no. 3971-75, Chowk Ajmeri Gate, Delhi­06 having old structure fit for use only in the manner it is being used and this structure cannot bear the burden of additional structure but defendants nos. 1 and 2 are raising illegal and unauthorized construction in the suit property and despite complaints made to defendant no. 3 and concerned police station from 22.02.13 to 28.02.13 respectively, no action has been taken by these authorities and defendants nos. 1 and 2 are not paying any heed to the request of the plaintiff to stop illegal and unauthorized construction, therefore, plaintiff has every apprehension of the building likely to be collapsed at any moment and it is causing threat to life and liberty to plaintiff and his workers.

Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 1/5 On the contrary, defendants nos. 1 and 2 have denied to have raised any additional, illegal or unauthorized construction and it is stated that they have only renovated their first and second floor portion and supported the old structure of the property by repairing its wall and supporting the same with the pillars but the present suit has been filed by the plaintiff with the malafide intention to blackmail them with ulterior motive to extort huge amount and get his ground and mezzanine floor reconstructed and no action has been taken by defendants nos. 3 and 4 as the complaints made by the plaintiff were false.

NDMC i.e. defendant no. 3 filed the WS and it is stated that on the inspection of the suit property on 11.03.13, unauthorized construction on the 2nd floor in the form of rooms has been booked for which show cause notice has been issued and served upon defendant no. 2 and further action is contemplated. It is also submitted that roof of some part of first floor has been replaced which is permissible under clause 6.4.1 of Delhi Municipal bye­laws and a letter to stop the ongoing unauthorized construction had been issued to defendants nos. 2 & 4 and the suit property was again inspected on 15.03.13 where no construction activity was seen.

During the pendency of the proceedings, Commissioner was appointed by Ld. Predecessor of this Court vide its order dated 07.03.13 and she filed a report alongwith photographs of the suit property. The perusal of the same reveals that roof of the room in front portion of first floor is newly constructed and old partition wall has been removed, fresh stairs leading to second floor have been constructed. The front portion of the 2 nd floor, which is actually the terrace of front room of first floor, has new flooring and roof, part of the back portion of 2nd floor has newly constructed wall and new roof and one of the pillars on 2 nd floor is newly constructed. Photographs nos. 5 and 6 accompanying with the report show that partition wall has been removed. These also show the new slabs laid over the roof Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 2/5 and the photographs are also depicting the raising of the height of the first floor which seems to be improbable without relaying of the roof which cannot be called as replacement of roof of some part of first floor, as stated by defendant no. 3 in its WS. Therefore, this Court is of the opinion that report of Ld. Commissioner and show cause notice issued by defendant no.3 establish that it was not renovation or repair which was stated by defendants nos. 1 and 2 in their Written Statement to be carried by them, but it was an illegal and unauthorized construction which was being carried by defendants nos. 1 and 2 in the suit property.

During the proceedings, it is admitted by the parties that a demolition order was thereafter passed by defendant no. 3 in respect of the unauthorized construction for which the suit property was booked on 11.03.13, on 20.05.13 and defendant no. 2 preferred the appeal against this demolition order before Ld. Appellate Tribunal and the same has been disposed off vide order dated 03.10.13 taking into account of the status report filed by defendant no. 3 submitted to the effect that unauthorized construction from the suit property has been removed by defendant no. 2 himself and the demolition order has been satisfied and unauthorized construction file has been closed but the plaintiff has disputed strongly the fact that the demolition order had been satisfied by the defendant no. 2 and produced on record a number of photographs submitting that such removal of unauthorized construction is only an eye wash as heavy girders are still lying there. The defendant no.3 again preferred to file the status report on 28.05.2014 iterating that appeal filed by defendant no.2 has been disposed off due to removal of unauthorized construction in the property and on inspection lastly made on 24.03.2014, no unauthorized construction activity was seen and further filed two photographs of the property. Thereafter, again status report is filed on behalf of defendant no.3 on 22.02.2016 to the effect that the property also consists of first floor and some walls at second Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 3/5 floor and this report is submitted on behalf of plaintiff as inconsistent to the earlier reports of defendant no.3 but this Court is of the opinion that truthfulness of the report is not a relevant fact to be examined at this stage and now, only it has to be seen whether there exists an apprehension on the part of defendants nos. 1 and 2 to carry illegal and unauthorized construction. Therefore, without returning any finding as to whether the demolition order has been satisfied, this Court hereby proceeds to examine the material on record to analyze whether there exists prima facie case in favour of the plaintiff otherwise.

In totality, the fact of booking of the suit property in respect of the unauthorized construction on 11.03.2013, the filing of appeal by defendant no.2 and satisfaction of the demolition order, if assumed to be correct, are not denied by defendants nos. 1 and 2. It establishes prima facie that defendant no.2 had raised the illegal and unauthorized construction in the suit property and this is a fact just opposite to their defence in Written Statement that they had only carried renovation / repair work in the suit property. Due to the establishment of this fact and admission on the part of defendants nos. 1 and 2 that the suit property is old enough and is in dilapidated condition, not only it can be safely construed that the plaintiff has sufficient grounds to be apprehended on the part of the defendants nos. 1 and 2 but it can also be gathered that the defendants nos. 1 and 2 have attempted to conceal the truth and there is likelihood that they may raise the construction to accomplish their object taking the advantage, if they are not restrained from carrying the same by grant of temporary injunction. Hence, this Court is of the view that there exists a prima facie case in favour of plaintiff that he has an apprehension that the defendants nos. 1 and 2 may raise unauthorized and illegal construction due to which the property may collapse at any moment and the same is causing threat to the life and property belonging to plaintiff and his workers. Further, since Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 4/5 the injury is likely to be caused to the life and immovable property, the same would be irreparable one and balance of convenience would also lie in favour of the plaintiff.

Hence, in view of t his discussion, it is held that the plaintiff has satisfied the three required conditions to seek temporary injunction in his favour i.e. prima facie case, irreparable injury and balance of convenience in his favour and he is entitled for temporary injunction. Therefore, the application in hand is allowed and defendants nos.1 and 2 are hereby restrained from raising any further construction on the first floor and above the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­110006, till the final disposal of the present suit.

( AANCHAL ) Civil Judge : Delhi.

03.03.2016 RB Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 5/5 IN THE COURT OF MS. AANCHAL, CIVIL JUDGE­07, CENTRAL DISTT., TIS HAZARI COURTS, DELHI.

Suit No. 21/13 
Bhagwan Dass Bhutani                                                                                       ......... Plaintiff
                                                                       Vs.
Savitri Gupta & Ors.                                                                                       ......... Defendants


                                                                                           Date of order : 03.03.2016

                                                                 ORDER

Vide this order, this Court shall decide the application under Section 152 r/w Section 151 CPC vide which the plaintiff is seeking modification of the order dated 07.03.2013. It is submitted that in the entire suit, the plaintiff has referred and disclosed about the factum of carrying­out of illegal and unauthorized construction in respect of the portions above the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­110006 by defendants nos. 1 and 2. Therefore, it is not the property bearing no. 3971 which could be termed as the suit property but is the property above the property bearing no. 3971 which should be termed as the suit property and therefore, there appears to be an inadvertent mistake in the order dated 07.03.2013 and the order dated 07.03.2013 needs to be modified to this extent.

Arguments have been heard. Record is perused carefully. The examination of the plaint shows that it has been pleaded on behalf of plaintiff that defendants nos. 1 and 2 are raising Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 6/5 construction over the first and second floors of the property bearing no. 3971 and it is only that construction raised on first floor and above the property no. 3971 against which the plaintiff has submitted his grievance and sought the relief. Therefore, this Court is of the opinion that there has been an inadvertent clerical omission in the order dated 07.03.2013 where the suit property is mentioned as the property no. 3971, Chowk Ajmeri Gate, Delhi­110006 rather than as the first floor and above the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­ 110006. Hence, the order to this extent stands corrected and it is directed that relevant part in last two paras of the order dated 07.03.2013 be read as under:­ "The Local Commissioner shall visit the suit property i.e. first floor and above the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­ 110006.............

Put up for filing written statement on behalf of the defendants on 18.03.2013. In the meantime, status­quo in respect of construction in the property i.e. first floor and above the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­110006 shall be maintained."

Accordingly, the application u/S. 152 r/w Section 151 CPC stands disposed off.

Announced in the open Court on this 3rd day of March, 2016 at 04.00 p.m. ( AANCHAL ) CJ­07(C)/Delhi/03.03.2016 RB Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 7/5 CS No. 21/13 03.03.2016 Present: None for the parties.

Vide separate order of even date announced in the open court, the application u/S. 152 r/w Section 151 CPC stands disposed off.

So far as the objections to the report of Local Commissioner moved by defendants nos. 1 and 2 on 29.05.2013 are concerned, it is observed that this report is objected only on the ground that the property bearing no. 3971, Chowk Ajmeri Gate, Delhi was kept locked by the plaintiff whereas, the Local Commissioner inspected the first and second floors of the property nos. 3971 to 3975. As the application u/S. 152 r/w Section 151 CPC has been disposed off and necessary corrections in the order dated 07.03.2013 have been ordered, this Court is of the opinion that the objections to the report of Local Commissioner only on this ground have become infructuous. Hence, the objections filed by defendants nos. 1 and 2 are dismissed.

Further, vide separate order the application u/O 39 Rule 1 and 2 CPC is allowed and defendants nos.1 and 2 are hereby restrained from raising any further construction on the first floor and above the property bearing no. 3971, Chowk Ajmeri Gate, Delhi­110006, till the final disposal of the present suit.

Now, put up for appearance of parties, consideration of resolution of disputes, A/D and framing of issues on 14.04.2016.

( AANCHAL ) Civil Judge : Delhi.

03.03.2016 RB Bhagwan Dass Bhutani Vs. Savitri Gupta Suit No.21/13 Page: 8/5