Delhi District Court
Sh. (Dr.) Girish Soni vs Sh. Ramanand on 4 November, 2022
DLND010000812010
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 56415/16
1. Sh. (Dr.) Girish Soni
S/o Late Sh. Prem C. Soni,
R/o D-140, Defence Colony,
New Delhi - 110024
2. Smt. Krisnha Soni
W/o Late Sh. Prem C. Soni,
R/o D-140, Defence Colony,
New Delhi - 110024
......... Plaintiffs
Versus
1. Sh. Ramanand
S/o Shri Shiv Lal
30-A, Khan Market,
New Delhi.
2. Sh. Mukesh Gupta (ex-parte vide order
S/o Shri Jagdish Pershad dated 17.04.2012)
30-A, Khan Market,
New Delhi.
3. Sh. Pravin Gupta (ex-parte vide order
S/o Shri Jagdish Pershad dated 07.03.2012)
30-A, Khan Market,
New Delhi.
CS 56415/16
Girish Soni vs. Ramanand page no. 1 of 16
4. Smt. Vidyawati Gupta (ex-parte vide order
W/o Shri Jagdish Pershad dated 24.08.2011)
30-A, Khan Market,
New Delhi.
5. Sh. Mahender Gupta (ex-parte vide order
S/o Shri Jagdish Pershad dated 14.02.2012)
30-A, Khan Market,
New Delhi.
6. Sh. Rakesh Gupta
S/o Shri Jagdish Pershad
30-A, Khan Market,
New Delhi.
7. Sh. Rajender Gupta
S/o Shri Jagdish Pershad
30-A, Khan Market,
New Delhi.
8. Sh. Dinesh Kumar Gupta
S/o Shri Jagdish Pershad
30-A, Khan Market,
New Delhi.
9. New Delhi Municipal Council (defence struck off
Through Chairperson vide order dated
30.04.2014)
Palika Kendra, Sansad Marg,
New Delhi.
........ Defendants
Suit presented On : 07.10.2010
Arguments Concluded On : 28.09.2022
Judgment Pronounced On : 04.11.2022
JUDGMENT
1. This is a suit seeking following reliefs :
"(a) Pass a decree of recovery of money of Rs.4,36,698/-
in favour of the plaintiffs and against the Defendant CS 56415/16 Girish Soni vs. Ramanand page no. 2 of 16 no.1 to 8 alongwith interest @ 24% p.a.
(b) Award pendente lite and future interest @ 24% p.a.
(c) Pass a decree of mandatory injunction in favour of the Plaintiffs and against the defendants directing the defendants to remove the unauthorized construction and encroachments from the property Shop No. 30-A, Khan Market, New Delhi as detailed para 6 of the plaint.
(d) Pass a decree of mandatory injunction in favour of the Plaintiffs and the Defendant no. 9 directing them to convert the property from lease hold to freehold.
(e) Cost.
(f) Pass such other and further order as this Hon'ble
Court may deem fit and proper in the facts and circumstances of the case."
SUIT
2. The suit was filed by Dr. Girish Soni and his mother Late Smt. Krishna Soni having inherited shop no. 30A, Khan Market, New Delhi (hereinafter, referred to as 'the suit property') from Late (Sh) Prem Soni, father of Dr. Girish Soni. However, during the pendency of the matter, Smt. Krishna Soni expired on 28.12.2017 and hence, only Dr. Girish Soni pursued the suit and is hereinafter, referred to as 'the plaintiff'.
2.1 It is his case that the suit property was let out to Sh. Ramanand (hereinafter, referred to as 'defendant no.1') and Late Sh. Jagdish Pershad (father of defendants no. 2 to 8) on a monthly rent of Rs. 300/- vide agreement dated 01.02.1975 for a period of 11 months. It is stated that at the time of letting out of the suit property, there was no unauthorized construction or encroachment on the public land. It is informed that a petition u/s 14 (1)(e) of The Delhi Rent Control Act is also pending adjudication. It is averred CS 56415/16 Girish Soni vs. Ramanand page no. 3 of 16 that Notice no. L&DO/PS.IV/2303 dated 30.06.2004 from L&DO office, was issued enlisting following encroachments and unauthorized construction in the suit property which the plaintiff states was without his or his parent's consent :
(i) Front Verandah has been enclosed with brick masonry measuring 11'-1 ½" X 7'-0" = 77.87 sq. ft. or say 78 sq. ft.
(ii) Unauthorised wooden loft measuring (13'-6" X 11' - 1 ½") + (3'-9" X 11'-1 ½") + (3' -9 X 11'-1 ½") = 233.62 sq. ft. objectionable area 11 sq. ft.
(iii) A sunshade like projection has been made on the front side with G.I. sheets to protect sign board measuring 11'-1 ½" X 2'-0" = 23 sq. ft. (Total projection 2' -6", out of which 2' -0" vide portion is unauthorised construction and remaining encroachment).
(iv) Outer portion of front side projection for sign board measuring 11'-1 ½" X 0' -6" which has been constructed by encroaching upon the public land."
Thereafter, the plaintiff claims that he issued legal notice dated 05.08.2004 to the tenants seeking immediate removal of unauthorized construction and encroachment. Further, it is stated that as a result of aforementioned encroachments and unauthorized construction, the plaintiff has also been unable to get his property converted to free hold and L&DO office has also threatened to recover misuse charges. It is stated that a sum of Rs.1,68,106/- has been demanded for mutation and this included a sum of Rs.75,010/- and Rs. 93,049/- towards misuse charges and damages on account of unauthorized construction and encroachment, from the plaintiff. On 30.09.2007, the plaintiff wrote to defendant no. 9 (to whom the suit property was transferred vide notification dated 24.03.2006) demanding removal of the encroachment and unauthorized construction. The plaintiff is aggrieved that he had to pay Rs.1,68,106/-, towards the misuse charges and damages during CS 56415/16 Girish Soni vs. Ramanand page no. 4 of 16 mutation of the property in his name. Also, at the time of seeking conversion of the suit property from lease hold to free hold, a sum of Rs.2,68,639/- has been demanded by defendant no. 9 vide notice no. S.O.(STC)/D-1508 dated 11.02.2010 and the plaintiff under compulsion has deposited Rs.5,55,525/- (which included Rs.2,68,639/- towards misuse charges and damages for unauthorized construction), vide demand draft no. 036282, dated 17.03.2010 drawn on HDFC Bank. Thus, the plaintiff has sought recovery of Rs.4,36,698/- which is the amount paid by him towards mis user charges and damages for the conduct of defendants no. 1 to 9 and has also sought mandatory injunction directing all the defendants to remove unauthorized construction and encroachment in the suit property and also, directing defendant no.9 to convert the property from lease hold to free hold.
WRITTEN STATEMENT
3. In the written statement filed only by defendants no. 1, 6, 7 and 8, preliminary objections have been taken qua non compliance of Section 385 of New Delhi Municipal Council Act, 1994 (hereinafter, referred to as 'The NDMC Act'), mis-joinder of cause of action and suit being barred by limitation. It is admitted that defendant no.1 and Late Sh. Jagdish Pershad were inducted as tenants with effect from 01.02.1975 by the father of the plaintiff. But agreement dated 01.02.1975 is denied. However, a defence has been set up that the shop was let out after making the aforementioned additions and alterations by father of the plaintiff. It is also stated that the notice issued by defendant no.8 is dated 30.06.2005 and was never served upon the defendants and it is also CS 56415/16 Girish Soni vs. Ramanand page no. 5 of 16 stated that no action was taken by L&DO under the Punjab Municipal Act, 1911 as it had become time barred. Also, it is stated that the plaintiff should have contested the claim raised by defendant no. 9 and cannot saddle answering defendants with the claim as defendant no. 9 was not entitled to claim any amount, as the alleged unauthorized construction became regularized.
4. Vide orders dated 24.08.2011, 14.02.2012, 07.03.2012 and 17.04.2012 defendants no. 4, 5, 3 and 2 respectively became ex- parte and no written statement was filed. Vide order dated 31.03.2011 right of defendant no. 9 to file written statement was closed. Thereafter, on an application under Section 151 of CPC, vide order dated 20.02.2014, another opportunity was granted to the defendant no. 9 to file its Written statement. Once again no written statement came to be filed on behalf of defendant no. 9 and the defence was struck off vide order dated 30.04.2014.
REPLICATION
5. In replication, it is stated that application u/s 385 of The NDMC Act had been filed alongwith the suit seeing exemption from issuance of notice to defendant no. 9. It is also stated that the suit is not bad for mis-joinder parties and causes of action.
ISSUES
6. Vide order dated 30.07.2014 following issues were framed :
1. Whether the suit is not maintainable in absence of the mandatory notice of Section 385 of CS 56415/16 Girish Soni vs. Ramanand page no. 6 of 16 NDMC Act? OPD
2. Whether the suit is bad for mis-joinder of parties and cause of action? OPD
3. Whether the plaintiff is entitled to a decree for recovery of money of Rs.4,36,698/- as prayed against defendants no. 1 to 5? OPP
4. Whether the plaintiff is entitled to any interest thereon? If so, at what rate and for what period? OPP
5. Whether the plaintiff is entitled to a decree of mandatory injunction for removal of unauthorized construction and encroachments as prayed? OPP
6. Whether the plaintiff is entitled to a decree of mandatory injunction for conversion of the property from lease hold to free hold as prayed? OPP
7. Relief.
PLAINTIFF EVIDENCE
7. In order to substantiate its case, the plaintiff examined himself as PW-1. He tendered evidence by way of affidavit Ex. PW1/A. In his affidavit Ex. PW1/A, PW-1 has reiterated the facts averred in the plaint and has placed reliance on the following documents:
1. Agreement dated 01.02.1975 Ex. PW1/1(OSR)
2. Copy of communication dated Ex. PW1/1A 30.06.2004 of L&DO addressed to (OSR) plaintiff no.1
3. Copy of legal notice dated 05.08.2004 Ex. PW1/2
4. Registered AD receipt Ex. PW1/3
5. Letter dated 30.09.2007 written by the Ex. PW1/4 plaintiff to defendant no.9
6. Receipt of payment made by the plaintiff Ex. PW1/5 to defendant no. 9 CS 56415/16 Girish Soni vs. Ramanand page no. 7 of 16
7. Copy of bank draft by which plaintiffs Mark Ex. PW1/6 made payment towards misuse charges and towards unauthorised construction and encroachment to defendant no. 9
8. Notice of demand no. S.O.(STC)/D- Ex. PW1/7 1508 dated 11.02.2010 of defendant no.9
9. Receipt of payment made by the plaintiff Ex. PW1/8 towards misuse charges and towards unauthorised construction and encroachment
10. Copy of bank draft by which plaintiffs Ex. PW1/9 made payment towards misuse charges and towards unauthorised construction and encroachment to defendant no. 9 This witness was extensively cross examined by Ld. Counsel for the defendants.
DEFENCE EVIDENCE
8. In defence, defendants no. 1, 6, 7 and 8 examined Sh. Dinesh Kumar Gupta as DW1. He tendered evidence by way of affidavit Ex. DW1/A. In his affidavit Ex. DW1/A, DW-1 has reiterated the facts averred in the written statement.
This witness was exhaustively cross examined by Ld. Counsel for the plaintiff.
FINAL ARGUMENTS
9. Final arguments have been advanced by Sh. Sanjeev Mahajan, Ld. Advocate on behalf of the plaintiff, Sh. Sanjeev CS 56415/16 Girish Soni vs. Ramanand page no. 8 of 16 Aggarwal, Ld. Advocate on behalf of defendants no. 1, 6, 7 and 8 and Sh. Nilesh Sawhney, Ld. Advocate on behalf of defendant no. 9.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
10. The Court has gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
ISSUEWISE FINDINGS A (Issue no. 1) Whether the suit is not maintainable in absence of the mandatory notice of Section 385 of NDMC Act? OPD
11. The onus to prove this issue is on the defendant.
11.2 It is observed that the issue was not much pressed either during trial or arguments.
B (Issue no. 2) Whether the suit is bad for mis-joinder of parties and cause of action? OPD C (Issue no. 6) Whether the plaintiff is entitled to a decree of mandatory injunction for conversion of the property from lease hold to free hold as prayed? OPP 11.3 The onus to prove the issue is upon defendants no. 1,6, 7 and
8. 11.4 It has been argued on behalf of the aforesaid defendants that CS 56415/16 Girish Soni vs. Ramanand page no. 9 of 16 defendants no. 1 to 8 are neither necessary parties nor does the suit disclose any cause of action qua them for the relief of conversion of the suit property from leasehold to freehold and as such the suit bad for misjoinder of parties and causes of action.
11.5 Per contra, it is denied on behalf of the plaintiff that the conversion of the leasehold to free hold was possible without removal of unauthorized construction and encroachment in the suit property.
11.6 Order II(3)(1) of the Civil Procedure Code,1908 (hereinafter, referred to as 'The CPC') provides as under :
"3. Joinder of causes of action.--(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit."
11.7 In Shiv Narayan (Dead) by Legal Representatives Vs. Manik Lal (Dead) by Legal Representatives and ors (2002) SCC 629 the Apex Court has held as under :
"Relying on Order 2 rule 3 the learned counsel for the appellant submits that joinder of causes of action is permissible. A perusal of sub-rule (I) of Order 2 Rule 3 provides that the plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly. What is permissible is to unite in the same suit several causes of action against the same defendants, or the same defendants jointly. In the present case, the suit is not against the same defendant or the same defendants jointly. As noticed above there are different sets of defendants who have different causes of action."CS 56415/16
Girish Soni vs. Ramanand page no. 10 of 16 11.8 The relief against defendant no. 9 seeking mandatory injunction for conversion of the suit property from lease hold to free hold is stated to have arisen on 17.3.2010 when the plaintiff satisfied the demands raised by defendant no. 9. To such relief sought from defendant no. 9, it has not been shown how defendants no. 1 to 8 are necessary parties. There is no evidence on record to show that it was only on account of authorized construction or encroachment in the property. Indeed, it is a separate cause of action which the plaintiff may have against defendant no.9 and joining of defendants no. 1 to 8 is not warranted. The issues are therefore, decided in favour of the answering defendants.
D (Issue no. 3) Whether the plaintiff is entitled to a decree for recovery of money of Rs.4,36,698/- as prayed against defendants no. 1 to 5? OPP E (Issue no. 4) Whether the plaintiff is entitled to any interest thereon? If so, at what rate and for what period? OPP
12. The onus to prove the issue is upon the plaintiff.
12.1 It has been argued on behalf of the plaintiff that it has been shown that the unauthorized construction and encroachment in the suit property was subsequent to it being leased out and it has been proved that the plaintiff was compelled to deposit misuse charges and damages on account of encroachment and unauthorized construction as pointed out in Ex. PW1/1A in the suit property. Placing reliance upon Ex. PW1/5 (receipt issued by defendant no.
9), Ex. PW1/7 (demand for misuse charges and damages to the tune of Rs. 2,68,639/- + Rs. 30,297/-) and Ex. PW1/8 (receipt of payment of misuse charges and damages alongwith conversion charges), it CS 56415/16 Girish Soni vs. Ramanand page no. 11 of 16 has been submitted that the plaintiff has shown that the amount was deposited and is now required to be compensated.
12.2 Per contra, it has been argued on behalf of defendants no. 1, 6, 7 and 8 that the plaintiff has neither been able to show that the unauthorized construction and encroachment as mentioned in notice Ex. PW1/1A was carried out by the tenants. Also, it has been argued that the plaintiff also did not contest the suit properly before defendant no.9 and cannot now saddle defendants no. 1 to 9 with the claim.
12.3 The premise of recovering aforementioned amount from defendants no. 1 to 9 is that the unauthorized construction and encroachment enlisted in Ex. PW1/1A was carried out by the tenants after the property was leased out to them on 01.02.1975. As per the plaintiff, there is an agreement dated 01.02.1975 vide which the suit property was let out to the tenants. However, the document which could have explained the extent of demised premises as it was let out was not adduced in evidence. It in this background the evidence as to who raised the unauthorized construction or encroached upon public land is to be analyzed. All that this Court has are two self serving statements of LRs of the landlord and tenants. Whereas, PW1 affirmed that the encroachment and unauthorized construction was subsequent to 01.02.1975 and denied suggestions to the contrary during cross examination, DW1 has affirmed that the unauthorized construction and encroachment were in existence when the property was leased out. During cross-examination, PW1 also stated that at the relevant time he was only 6 years old whereas, DW1 stated that he had joined his father's business in 1976. No CS 56415/16 Girish Soni vs. Ramanand page no. 12 of 16 independent witness was examined to elucidate the suit property as it was let out. The status of evidence is such that this Court does not have sufficient material to give any conclusive finding as to whether the unauthorized construction and encroachment was prior or subsequent to 01.02.1975 when the property was let out to the tenants. Therefore, it can be safely said that the plaintiff failed to discharge the onus which was upon him to show that he was liable to be compensated for payment of misuse charges and damages paid to defendant no. 9 by him.
12.4 Therefore, both the issues are decided against the plaintiff.
F (Issue no. 5) Whether the plaintiff is entitled to a decree of mandatory injunction for removal of unauthorized construction and encroachments as prayed? OPP
13. It has been argued on behalf of the plaintiff that the nature of unauthorized construction and encroachment in the suit property has been proved by way of Ex. PW1/1A. Also, it is stated that DW1 has admitted that sign board was affixed by the tenants in the year 1976 and that no sunshade existed out the tenanted premises/ further it is stated that DW1 has waivered as regards whether the tin shed existed outside the shop and whether the verandah was enclosed before the possession of the suit property was taken by the tenants. Also, it is argued that defendants no. 1 to 9 were served with notice Ex. PW1/2 and even defendant no. 9 was informed vide Ex. PW1/4 to remove the unauthorized construction but to no avail.
13.1 Per contra, it has been argued that the plaintiff has neither proved when encroachment was done or unauthorized construction CS 56415/16 Girish Soni vs. Ramanand page no. 13 of 16 was raised. Even thereafter, notice ex. PW1/1A is dated 30.06.2004 however, the suit came to be filed only in October, 2010 and thus placing reliance upon Ganga Singh Vs. Ram Kanwar 2016 SCC Online Raj 4380 ; Shankar Kumar and Ors vs. Mohan Lal Sharma Second Appeal no. 260 of 1985 decided on 01.01.1998 decided by High Court of Orissa that the relief is also barred in view of Article 58 and Article 113 of The Limitation Act 1963 and should have been filed within 3 years when the unauthorized construction was raised or when the plaintiff came to know of it, it is stated that inaction on the part of the plaintiff can be treated as an act of acquiescence.
13.2 In D.C.M. Ltd Vs. M/s R.K. Towers (India) Pvt. Ltd. Arb.A 415 of 2006 and OMP 362 of 2006 it has been held as under:
"25. The only claim of the petitioner before the arbitrator can be for mandatory injunction for removal of the said unauthorized construction. It has been held by this court in the Rawal Singh v Kwality Stores AIR 1986 Delhi 236 that the limitation for instituting a claim for mandatory injunction for removal of unauthorized construction is three years from the date of unauthorized construction. In my view the existence of unauthorized construction does not give a continuing cause of action to enable the persons seeking to have the same demolished apply at any time for its demolition as long as it existed. Here private and not public rights are sought to be enforced. The position is different when public authorities are seeking removal of unauthorized construction or when Arb.A.415/2006 & OMP 362/2006 Page no. 14 of 16 court, in public interest is approached to have the same removed. The respondent has stated that the 11th floor was constructed in the year 1991. As aforesaid, the petitioner has not given any date of construction thereof and only relied upon the L&DO having taken objections to the same for the first time on 27th December, 2004. However, the date on which the L&DO objects to the same for the first time does not furnish any cause of action to the petitioner."CS 56415/16
Girish Soni vs. Ramanand page no. 14 of 16 13.3 In Rawal Singh Vs. Kwality Stores AIR 1986 Delhi 236, it has been held as under :
"(22) THE defendants have also contended that since these alleged alterations in the premises by them are sought to be assailed by the plaintiff in this suit, and relief by way of declaration and injunction is being sought, the suit would be barred by time as Arts. 58 and 113 of the Limitation Act permit three years' period for obtaining such declaration and injunction. These alterations according to the defendants were within the knowledge of the plaintiff from sixties when he stated that he had been going to the roof of the house in 1963-64, and in any case knew of them in 1977 when the eviction petition was filed. Earlier also it is stated that an eviction petition was filed in 1975 but the same was against defendant No. 2 and not the firm, and as such was later withdrawn. According to the defendants, the plaintiff should be treated to have in any case acquiesced in these alterations in the demised premises if found to have been done by them.
(23) LACHES in seeking relief in this regard by civil action may disentitle grant of equitable relief of mandatory injunction.
It is another thing that a cause for claiming eviction may or may not exist on this score under the Rent Control Legislation. The suit having been brought long after the expiry of three years of the effecting of alterations is barred for mere declaration and mandatory injunction at this belated stage. This is irrespective of whether the defendants carried out those alterations or they were by the plaintiff himself or with his approval or acquiescence. See in this regard the decisions reported as AIR 1981 J and K 79 Suraj Prakash v. Jagdish Raj, AIR 1981 Mad 220; R. S. Muthuswami Gounder v. A. Annamalai, AIR 1971 Raj 112; Jagan Nath v. Kachhulal, and AIR 1983 SC 452 K. Satyanarayana v. K. Ramaiah."
13.4 Even if for the sake of arguments, it is accepted that the unauthorized construction and encroachment was done by the tenants (though not proved), the plaintiff cannot deny knowledge of the unauthorized construction and encroachment on public land pursuant to letter dated 30.06.2004 which is Ex. PW1/1A. Even thereafter, the suit came to be filed after 06 years. Prima facie, as there was no continuing cause of action and the plaintiff seeks to enforce a private right. Thus, placing reliance upon D.C.M. Ltd Vs. CS 56415/16 Girish Soni vs. Ramanand page no. 15 of 16 M/s R.K. Towers (India) Pvt. Ltd. (Supra) and Rawal Singh Vs. Kwality Stores (Supra), this Court is of the view that the relief is barred by limitation.
RELIEF
14. In view of the discussions on the foregoing issues, the suit of the plaintiff is dismissed. No order as to cost.
15. Decree sheet be prepared accordingly.
16. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 04.11.2022 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS 56415/16 Girish Soni vs. Ramanand page no. 16 of 16