Delhi District Court
New Delhi - 110034 vs Sh. Tilak Raj Chopra on 11 August, 2011
1
IN THE COURT OF SHRI ARUN GOEL, CIVIL JUDGE (WEST),
TIS HAZARI COURTS, DELHI
******************************************************************
Suit No 31/10
Date of Institution : 10.2.2010
Date of Arguments : 30.7.2010
Date of Judgment : 11.8.2010
IN THE MATTER OF :
Sh. Rakesh Kaushal
S/o Sh. J. S. Kaushal
R/o D57, Saraswati Garden
New Delhi - 110034.
..........PLAINTIFF
VERSUS
Sh. Tilak Raj Chopra
S/o Sh. Guru Ditta Mal.
R/o WZ L50, First Floor,
Saraswati Garden.
.......DEFENDANT
ORDER
Vide this order I shall dispose off the application under Order XXXIX Rule 1 and 2 filed on behalf of plaintiff.
Suit no. 31/10 1/1 21. Plaintiff has stated that he is the absolute owner of the property bearing no. WZ L50, Saraswati Garden, New Delhi ( herein after referred to as suit property). The property consists of two floors ground floor and first floor. It is stated that the defendant is the tenant of first floor of portion comprising of two bed rooms, drawing cum dinning room, kitchen, bathroom , laterine as shown in the site plan at a monthly rent of Rs. 1,870//. It is further stated that there was pending litigation between the parties. However at present there is no litigation between the parties, but after the culmination of litigation, the attitude of the defendant has become belligerent. It is stated that when on 20.1.2010 the plaintiff visited the tenanted premises, he found out that the huge construction activity has been carried out by the defendant. It is further stated in order to carry out construction the defendant had shifted to another place. Plaintiff found out that the defendant has caused irreparable damage to the common wall between bathroom and latrine. It is further stated that he has converted the two portions into one room and has removed the two separate doors installed in the bathroom and latrine. He has further stated that he has also demolished the wall adjoining the kitchen door by converting into an open modular kitchen. He has also removed the iron grill fabrication which was earlier installed at the entrance of the lobby. The plaintiff has further alleged that different kind of alteration made by the defendant in the suit property. He has further stated that despite his request, the defendant has not stopped the construction activity. The plaintiff has also stated that the defendant has stated that he will hand over the possession of the suit property to a third party and will create third party interest in the suit property. The plaintiff has filed the present suit for permanent injunction, restraining the defendant from carrying out any construction activity, addition or alteration or causing any substantial damage to the suit property. He has also sought injunction restraining him from creating any third party interest and has also prayed for mandatory injunction directing the defendant to demolish the Suit no. 31/10 1/2 3 construction activity, addition or alteration in the suit property. An application under Order XXXIX Rule 1 and 2 CPC has also been filed on behalf of plaintiff in which he has also sought interim injunction restraining the defendant from carrying out or causing any damage to the suit property and also restraining them from creating any third party interest.
2. W.S has also been filed by the defendant. The defendant has not denied that he is the tenant of the suit property. He has also not denied the monthly rent of Rs. 1870/ however the defendant has denied the allegation that he has carried out any unauthorized construction in the suit property. He has also denied that he has shifted to another accommodation to carry out construction in the suit property. Defendant has denied that he has caused irreparable damage to the common wall between bathroom and latrine. He has also denied that he has demolished additional wall adjoining to the kitchen. The defendant has denied that he has done any kind of construction to change the structure of the house. He has admitted that he has installed a wooden almirah at the suit property. He has further stated that he has changed electrical fitting at the suit property. He has denied of making any structural changes in the suit property. He has denied that he ever threatened to creating any third party interest. He has denied the rest of the contention of the plaintiff and has prayed for the dismissal of the suit.
3. Reply to the application under order Order XXXIX Rule 1 and 2 CPC filed in which he has reiterated the stand taken in the Written Statement
4. I have heard the counsels for both the parties and have perused the record with utmost care.
5. The law is well settled regarding the grant of interim injunction. Plaintiff has to prove three basic elements for grant of interim injunction:
Suit no. 31/10 1/3 41. existence of prima facie case.
2. balance of convenience
3.irreparable injury
6. Admittedly in the present case the relationship of parties is not denied. It is not denied that the defendant is a tenant with respect to suit property. However the dispute between the parties as to whether any structural changes have been carried out by the defendant at the suit property. The plaintiff has alleged that the defendant has carried out structural changes which have been denied by the defendant. The defendant has specifically stated that he has not changed the structure of the house. It is a matter of trial whether any structural changes has been carried out in the suit property. However the defendant is a tenant in respect of the suit property. In such case if any changes are carried out by him, which materially affect the structure of the suit property, they will adversely affect the plaintiff. The plaintiff has a right to stop the unauthorized construction in the suit property. Moreover the defendant is a tenant in the suit property; he has not got any right to create third party interest without the consent of plaintiff in the suit property. In such case the plaintiff has made out prima facie case for granting injunction.
7. The ingredient of balance of inconvenience and irreparable injury lies in favour of plaintiff, in case any material alteration or third party interest is created in the suit property much inconvenience and irreparable injury will result to the plaintiff.
8. In view of the above stated facts,the application of the plaintiff for the grant of interim injunction is allowed. Defendant is restrained from carrying out any construction activity,addition or alteration in the suit property i.e.First Floor at WZL50, Saraswati Garden, Suit no. 31/10 1/4 5 New Delhi and also to create third party interest in the suit property till the disposal of this suit or till further order which ever is earlier.
Nothing mentioned herein above shall tantamount to be the expression of opinion on the merits of the case.
Announced in the open court ( Arun Goel )
today i.e11.8.2011 Civil Judge ( West)/Delhi
Suit no. 31/10 1/5