Delhi District Court
Lala Diwan Chand & Ors. V. Asha Gupta & Anr vs Asha Gupta on 12 April, 2018
Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
IN THE COURT OF MAYANK MITTAL: CIVIL JUDGE-08 (CENTRAL),
ROOM NO.241, TIS HAZARI COURTS, DELHI
SUIT NO. : 595099/16 (OLD NO. : 551/16)
In the matter of :-
1. Lala Diwan Chand Trust
(A Public Charitable Trust)
2, Jain Mandir Road, New Delhi.
2. Rajendra Kumar Gupta
S/o Late Lala Hans Ram Gupta
R/o 235, Greater Kailash
New Delhi - 110 003.
3. Vineet Virmani
S/o Sh. S.P. Virmani
R/o 15, Golf Links, New Delhi - 110 003.
4. Vishwa Nath
S/o Sh. Raj Paul
R/o 12-F, Jor Bagh, New Delhi.
5. Anil Jauhar
S/o Sh. Surendra Nath
R/o 12-F, Jor Bagh,
New Delhi.
6. S.P. Puri, S/o Sh. K.K. Puri
B-64, Defence Colony,
New Delhi.
7. T.N. Chaturvedi
9, Gurudwara Rakabganj Road,
CS No. : 595099/16 (old No. : 551/16) Pg 1 of 26
Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
New Delhi. ...PLAINTIFFS
VERSUS
1. Asha Gupta
W/o Sh. Rishi Ram Gupta
R/o A 3, Diwan Shree Apartments,
30, Feroz Shah Road, New Delhi.
1A. Anil Ram, S/o Smt. Asha Gupta,
R/o A 3, Diwan Shree Apartments,
30, Feroz Shah Road, New Delhi.
1B. Gita Ram Gupta
W/o Sh. Rishi Ram Gupta
R/o A 3, Diwan Shree Apartments,
30, Feroz Shah Road,
New Delhi. ...DEFENDANTS
Date of institution : 26.08.1994
Date of judgment : 12.04.2018
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose of the suit filed by the plaintiffs for mandatory and permanent injunction.
2. The facts necessary to dispose off the present suit as alleged by the plaintiffs are that the plaintiff No.1 is a Public Charitable Trust having its office at 2, Jain Mandir Road, New Delhi. Plaintiffs No.2 to CS No. : 595099/16 (old No. : 551/16) Pg 2 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
8 are the trustees of the said trust. The present suit has been filed through Sh. Rajendra Kumar Gupta who is one of the trustee i.e. plaintiff No.3 and is authorized by remaining trustees vide general power of attorney dated 09th of March, 1994 to sign, verify and institute the present suit on their behalf and to do all such acts or things with respect to the said case. Sh. Rajendra Kumar Gupta is also Secretary of the plaintiff Trust and is well conversant with the facts and circumstances of the case. Lala Diwan Chand Trust i.e. plaintiff No.1 is the owner of the lease hold plot and the premises known as 30, Ferozeshah Road, New Delhi. Lala Diwan Chand Trust erected a multi storey residential building known as Diwan Shree Apartments on the above said lease hold land. Vide agreement dated 25th day of August, 1973 the defendant entered into an agreement with the said Lala Diwan Chand Trust for the purchase of one residential apartment in the Block No.A, Apartment No.3 in the said Diwan Shree Apartment. It was specifically mentioned and agreed to in para No.6 of the said agreement that the purchaser defendant shall observe the terms and conditions under which the CS No. : 595099/16 (old No. : 551/16) Pg 3 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
said tenement and the said building is held by the vendors and he/she shall not do or suffer to be done anything in the said building or the said premises which may be against the rules and bye-laws of the NDMC or any other authorities. It was further agreed that the defendant will not make any addition,alteration or structural changes in the said apartment without the written consent of the vendors. The said agreement was followed by a supplementary agreement between the parties on the 4 th day of October, 1979. In the said supplementary agreement also the above said terms were reproduced and agreed to by the parties in paragraph 3. The possession of the apartment was handed over to the defendant, who is now living there. Before handing over the possession of the said apartment to the defendant, the defendant submitted an undertaking on the 24th day of Sept. 1979 "not to effect any material change within the above said flat." Sometime in March, 1986, it came to the notice of the trustees that the defendants have made certain unauthorized constructions in the property agreed to be sold to them. The defendant No.1 was requested by a registered CS No. : 595099/16 (old No. : 551/16) Pg 4 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
acknowledgment due letter No.DCT/118/800 dtd. 15 th day of March, 1986 to remove the unauthorized construction done by her within two weeks of the receipt of the said letter and inform the trust office regarding the compliance. It was also indicated in the said letter that in the event of the defendants failing to do so the Trust would be compelled to initiate suitable legal action to protect the interest of the Trust and other residents in Diwan Shree Building. The said letter was duly received by the defendant. On the 17th day of July, 1986, another letter was sent to the defendant No.1 wherein it was pointed out to her that the unauthorized construction and encroachment in the suit premises has not been removed. The defendants were put on notice that the Executive Secretary of the Trust along with a registered architect and the counsel of the Trust will visit the suit premises on 27 th day of July, 1986 to view and examine the estate and conditions of the suit property. The said letter sent by registered AD post was duly received by the defendants. On the 27th day of July, 1986, an inspection of the suit property was carried out and the unauthorized CS No. : 595099/16 (old No. : 551/16) Pg 5 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
construction was found to be existing on site. It is clear that the above unauthorized construction is against the express provisions contained in the agreement dated 25th day of August, 1973 and the supplementary agreement dated 4th day of October, 1979 and the undertaking given by the defendants on the 24 th day of September, 1979. The said acts of the defendants are against the bye-laws of the NDMC, are hazardous to the fire safety of the building and invoice a risk of the failure of the terrace structure. The said constructions are unauthorized, illegal and not permitted by law. If the same are not removed, they will cause a substantial danger to the safety of the Diwan Shree Apartments, which will result in an irreparable loss and injury to the Trust properties and to the other residents of the building. The defendants had not removed the said unauthorized constructions despite various requests made to them. The plaintiff had filed a suit for mandatory injunction against the defendants vide suit No.556/86 pending in the court of Sh. J.P. Narayan, Sub Judge, Delhi. The Hon'ble Court vide its order dated 11.03.94 was pleased to allow the plaintiff to withdraw the said suit CS No. : 595099/16 (old No. : 551/16) Pg 6 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
with the liberty to file a fresh suit on the same cause of action, hence the present suit.
3. The defendants had contested the suit of the plaintiff and had filed his written statement. It is submitted in the written statement that the suit as framed is not maintainable and is liable to be dismissed. It is further submitted by the defendant that the alleged trust of the plaintiff is not registered as required under the settled provisions of law, therefore, the suit of the plaintiff is not maintainable and is liable to be dismissed. It is claimed by the defendant that no notice was ever received by the defendants from the plaintiff Trust with regard to the alleged unauthorized construction and encroachment in the suit premises. It is submitted that once the premises/flat in question was transferred to the defendants, the defendants become the owner of the said premises/flat and the plaintiffs Trust have no right, title or interest in the lawful enjoyment or possession in the said property/flat. It is further submitted that since the NDMC has not raised any objections, the plaintiffs have no right or authority to object to the peaceful enjoyment of the defendants of CS No. : 595099/16 (old No. : 551/16) Pg 7 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
the premises in question.
4. Plaintiffs filed replication to the written statement of the defendants denying the case of the defendants; reiterating and reaffirming the case as set up by the plaintiffs in the plaint.
5. From the pleadings of the parties, following issues were framed for trial:-
1. Whether suit is barred by limitation? OPD.
2. Whether suit is devoid of cause of action? OPD.
3. Whether plaintiff has no locus stand to file the present case? OPD.
4. Whether suit has not been signed and verified by duly authorized person? OPD.
5. Whether plaintiff is entitled to decree of mandatory injunction, as prayed? OPP.
6. Relief.
6. In order to prove his case, plaintiffs examined PW-1 Sh. Dalip Sabharwal, who tendered his evidence by way of affidavit Ex.PW- 1/A. He relied on the following documents:-
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1. Ex.PW-1/1 is de-exhibited and now marked as Mark-A GPA dated 09.03.1994 (objected to mode of proof).
2. Ex.PW-1/2 (OSR) copy of GPA dated 10.02.1997 (objected to mode of proof).
3. Ex.PW-1/3 (OSR) copy of agreement dated 25.08.1973 (objected to mode of proof).
4. Ex.PW-1/4 (OSR) copy of supplementary agreement dated 04.10.1979 (objected to mode of proof).
5. Ex.PW-1/5 (OSR) copy of undertaking dated 24.09.1979 (objected to mode of proof).
6. Ex.PW-1/6 is de-exhibited and now marked as Mark-B copy of letter No.DCT/118/800 dated 15.03.1986 (objected to mode of proof).
7. Ex.PW-1/7 (Colly.) is de-exhibited and now marked as Mark-C copy of letter dated 17.07.1986 along with its receipt (objected to mode of proof).
8. Ex.PW-1/8 is de-exhibited and now marked as Mark-D copy of inspection report dated 27.07.1986 by Architect (objected to mode of proof).
9. Ex.PW-1/9 is already exhibited as Ex.PW-2/1 i.e. letter dated 20.12.1999 sent by L & DO to plaintiff (objected to mode of proof).
10. Ex.PW-1/10 certified copy of order dated 11.03.1994 in suit No.556/86 (objected to mode of proof).
11. Ex.PW-1/11 site plan (objected to mode of proof).
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7. Ex.PW-1/1 has been de-exhibited and was marked as Mark-A. With respect to Ex.PW-1/2 to Ex.PW-1/5 objection was taken as to mode of proof, however, as original was produced at the time of exhibiting the documents, no objection as to mode of proof has been found valid. Ex.PW-1/6, Ex.PW-1/7, Ex.PW-1/8 have been de-exhibited and marked as Mark-B, Mark-C and Mark-D, respectively. Ex.PW-1/9 was also objected as to mode of proof, however, witness from L&DO was summoned as PW-2 who had brought the office copy of letter/notice dated 20.12.1999 and has proved the Ex.PW-1/9 as Ex.PW-2/1. Ex.PW-1/10 was objected on the basis of mode of proof, however, same is certified copy of order dated 11.03.1994 in Suit No.556/86. Nothing objectionable was found in proving Ex.PW-1/10. Ex.PW-1/11 site plan was objected to as mode of proof. The court is of the view that site plan cannot be relied on as the site plan has not been mentioned in the affidavit of PW-1.
8. Plaintiffs have also examined summoned witness PW-2 Sh. Sunil Kumar, Senior Secretariat Assistance from the office of Land & Development office, Nirman Bhawan, New Delhi. He has brought the CS No. : 595099/16 (old No. : 551/16) Pg 10 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
summoned record i.e. the office copy of notice dated 20.12.1999 vide letter No.L&DO/LI-9/148(7)-99 sent by the Ministry of Urban Development, Land & Development Office to M/s Lal Diwan Chand Trust demanding the charges for the breaches of misused and unauthorized construction. Copy of same is Ex.PW2/1.
9. On the other hand, defendant has also examined DW-1 Sh. Anil Ram, who tendered his evidence by way of affidavit Ex.DW-1/A. He relied on the document i.e. notice under Order XII Rule 8 CPC dated 13.11.2017 which is exhibited as Ex.DW-1/1 (Colly. 6 pages) (objected to as the same is the photocopy).
10. I have heard the arguments and perused the record. Issue-wise findings as follow:-
ISSUE NO.3 Whether plaintiff has no locusstandi to file the present case? OPD.
11. The burden of proving this issue was on the defendant. The defendant has submitted that as plaintiff has sold the suit property to the defendant as alleged by the plaintiff himself plaintiff has got no right, title or interest in the suit property and any interference CS No. : 595099/16 (old No. : 551/16) Pg 11 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
whatsoever by plaintiff in the use and enjoyment of suit property is unlawful and unauthorized. It is submitted by the defendant that act of defendant has not resulted in any illegal/ unlawful encroachment. Even otherwise, the plaintiff has got no say or locus - standi for the purpose of filing the present suit.
12. Perusal of Ex.PW-/3 and Ex.PW-1/4 makes it clear that these two documents are unregistered documents. No right, title or interest can be transferred by unregistered documents. As per Section 49 of Indian Registration Act, unregistered documents does not create any right, title or interest in the immovable property nor these documents can be read in evidence. Even with the consent of both the parties, unregistered documents transferring immovable property cannot be read in evidence as proof of transfer of immovable property. Even otherwise, plaintiff was only a lessee of the L&DO, the title of plaintiff was not itself a title of owner, it was not possible for the plaintiff to sell the suit premises to the defendant so as to make defendant the owner of the suit property. As, L&DO has issued notice/letter to plaintiff with regard to misuser CS No. : 595099/16 (old No. : 551/16) Pg 12 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
of the suit premises whereby it has been specifically mentioned by L&DO that L&DO is lessor and plaintiff is the lessee and the office of L&DO is not concerned with the tenants of plaintiff and whatever is the damages/penalties and misuser charges, same have to be borne by the plaintiff, it cannot be said outrightly that plaintiff has got no say or locus-standi to file the present suit.
13. Accordingly, court is of the view that plaintiff has got a cause of action to file the suit in pursuance of letter received by plaintiff from L&DO with respect to the misuser of suit premises by the occupier of suit premises. Accordingly, present issues is decided against the defendant.
ISSUE NO.4 Whether suit has not been signed and verified by duly authorized person? OPD.
14. The burden of proving this issue was on defendant. It has been submitted by the defendant that plaintiff is a registered trust. If a suit is to be filed by or on behalf of Trust, it has to be filed by a competent person who has been authorized by the Trust to file suit on behalf of Trust and the deed/letter of resolution must be duly CS No. : 595099/16 (old No. : 551/16) Pg 13 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
proved in the court of law. In the present case, Sh. Rajender Kumar Gupta, one of the Trustees was authorized to file suit on behalf of plaintiff Trust as per document Mark-A which is a GPA authorized by the plaintiff Trust in favour of plaintiff No.2. However, being mere a photocopy of GPA, the GPA could not be proved, as per the law. Not only the photocopy of this GPA has been filed but also the plaintiff No.2 has authorized another person Sh. Dalip Sabharwal who was acting as a Manager/Typist in the office of plaintiff, to file the present suit and to depose on behalf of plaintiffs through Ex.PW- 1/2. Even, the document Ex.PW-1/2 could not be proved as per law as executant of this document as well did not come to prove this document. It has been further alleged by the defendant that firstly it was necessary for the plaintiffs to prove document Mark-A, only then the plaintiff No.2 himself could have proved Ex.PW-1/2 as he had executed that GPA in favour of Sh. Dalip Sabharwal.
15. It is submitted by the plaintiff that in his cross examination the defendant's witness has recognized that he personally knows Sh. Rajender Kumar Gupta and also the fact that he was the Trustee of CS No. : 595099/16 (old No. : 551/16) Pg 14 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
plaintiff's society. The DW-1 has stated that his wife keeps on receiving different letters from different person on behalf of plaintiff Trust including Mr. Sabharwal. The plaintiff has confronted the DW-1 with document Ex.PW-1/D and has asked from DW-1 that whether plaintiff society has authorized Sh. Rajender Kumar Gupta by that document to file the present suit, which witness has stated that if the counsel for plaintiff is saying that, Sh. Rajender Gupta, might have been authorized by the plaintiff's society to file the present suit by execution of document Ex.PW-1/D1.
16. The court has considered the rival contentions of the parties with respect to these issues. However, one thing is clear that defendant was very much aware that Sh. Rajender Gupta was one of the Trustees of the plaintiff Trust. It is also undisputed that Sh. Sabharwal was one of the competent office bearer in the plaintiff Trust. The court is of the view that mere not filing of GPA in original should not come in the way of deciding the present matter on merits as it comes within the category of mere technicality. The Hon'ble Supreme Court in case titled United Bank of India v. Sh.
CS No. : 595099/16 (old No. : 551/16) Pg 15 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
Naresh Kumar & Ors. decided on 18.09.1996 where the issue was the signing and verification of plaint filed on behalf of a company by duly authorized/competent person was under consideration. In that case it has been observed by Hon'ble Apex Court that:-
"In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable".
17. In view of the above finding of Hon'ble Apex Court, this court is also of view that technicality in filing the present suit on the ground that GPA by which the person signing, verifying the plaint and deposing on behalf of plaintiff was not properly proved should not come in the way of deciding the matter on merits. Though technically speaking, the person signing and verifying the plaint and deposing CS No. : 595099/16 (old No. : 551/16) Pg 16 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
on behalf of the plaintiff was not proved to be authorized by the plaintiff Trust, however, the court is of the view that as it was very much clear to the defendant that the person who had signed and verified the plaint and deposed was otherwise a competent office bearer of the plaintiff Trust, the court is not resisting itself from proceeding further with deciding the present matter on merits. Issue is decided accordingly.
ISSUE NO.1 Whether suit is barred by limitation? OPD.
18. The burden of proving this issue was on defendant. Defendant has for the purposes of discharging this burden has referred to the cross examination of PW-1 and it has pointed out the admission of PW-1 that he came to know about the unauthorized construction in March, 1986, when he had visited the suit premises for inspection. The counsel for defendant has argued that this admission makes it clear that plaintiffs have knowledge of unauthorized construction as alleged by them right since March, 1986, and any suit filed for mandatory injunction for removal of that structure is to be filed CS No. : 595099/16 (old No. : 551/16) Pg 17 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
within three years from the date when the alleged construction came into the knowledge of the plaintiff. However, as this suit has been filed in the year 1994, it is hopelessly barred by law of limitation. Counsel for plaintiff has submitted that with respect to same cause of action an earlier suit was filed by the plaintiff against the defendant. However, because of some technical defects, the said earlier suit was withdrawn by the plaintiff with liberty to file fresh suit. Counsel for plaintiff has submitted that as he has been given liberty by the court in which earlier suit was filed to file the fresh suit, as per Section 14 of Limitation Act, the time during which the earlier suit was proceeded must be excluded while computing the period of limitation for the purposes of present suit. The counsel for plaintiff submitted that earlier suit was withdrawn in the year 1994 and in the same year itself, the present suit has been filed and as per the provisions of Section 14 of Limitation Act, the present suit is very much within the period of limitation.
19. The court is of the view that for the purposes of applicability of Section 14 of Limitation Act, the plaintiff is essentially required to CS No. : 595099/16 (old No. : 551/16) Pg 18 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
prove that earlier proceeding was prosecuted in good faith and also, that it was from defect of jurisdiction or other cause of like nature, the earlier court was unable to entertain it. The counsel for plaintiff has not averred or shown any defect in the jurisdiction of court in which suit was filed earlier nor any defect of like nature was shown with respect to the jurisdiction of earlier court. Accordingly, Section 14 of Limitation Act does not appear to apply in the facts and circumstances of the present case. Accordingly, the present suit is barred by limitation. Issue is decided in favour of defendant and against the plaintiff.
ISSUES NO.2 & 5 Whether suit is devoid of cause of action? OPD.
Whether plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP.
20. The plaintiff to prove his cause of action has examined Sh. Dalip Sabharwal as PW-1 who is Senior Manager in the plaintiff Trust who has exhibited documents i.e. agreement Ex.PW-1/3 and supplementary agreement Ex.PW-1/4. However, these documents could not be validly proved by PW-1 as neither the executant of CS No. : 595099/16 (old No. : 551/16) Pg 19 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
these documents have been called nor documents were filed itself in original, however, as DW-1 in his cross examination has admitted that agreement Ex.PW-1/3 was executed between the plaintiff Trust and mother and sister of DW-1, the Ex.PW-1/3 is taken to be proved for the purposes of deciding the present suit. The Ex.PW-1/3 is an unregistered agreement between the parties for the purposes of transferring the title of suit property. As per Section 49 of the Indian Registration Act, the said unregistered document cannot be read in evidence for the purposes of proving that title was transferred by the plaintiff Trust to the defendant, however, the said document can be read for collateral purpose of proving the nature of possession of the defendant.
21. It is stated by PW-1 in his cross examination that he had inspected the suit premises in 1986, whereby he came to know about the unauthorized construction. PW-1 has stated that by that time, no notice had been received by plaintiff Trust from NDMC or from any other government authority with regard to the alleged illegal construction. PW-1 had exhibited document Ex.PW-1/5 for the CS No. : 595099/16 (old No. : 551/16) Pg 20 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
purposes of showing that an undertaking was given by the defendant that they shall not make any illegal addition or alteration in the suit premises. PW-1 has stated that plaintiff Trust has not received any complaint from occupier of adjacent apartments or owners below the suit property. PW-1 has stated that plaintiff Trust had received a letter exhibited as Ex.PW-2/1 from L&DO claiming alleged unauthorized/illegal construction charges in respect of alleged unauthorized/illegal construction raised by the defendants and other occupiers.
22. PW-2 Sh. Sunil Kumar was a summoned witness from L&DO who had brought the office copy of notice dated 30.12.1999 vide letter No.L&DO/LI-9/148(7)-99 sent by Ministry of Urban Development, L&DO to the plaintiff Trust demanding the charges for the breaches of misuse and unauthorized construction which has been exhibited as Ex.PW-2/1.
23. Defendant had in his defence examined Sh. Anil Ram as DW-1. DW-1 in his cross examination had stated that he knows Sh. Rajinder Kumar Gupta and also that he was the Trustee of plaintiff Trust. DW-
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1 has admitted that agreement exhibited as Ex.PW-1/3 was executed between the plaintiff Trust and mother and sister of DW-1. DW-1 was asked a specific question whether in agreement Ex.PW- 1/3 there is a specific condition that the vendee shall not do anything i.e. addition/alteration in the suit premises, to which the witness has stated that he as not done anything. Witness has further stated that he had not read any clause in agreement Ex.PW-1/3 prior to the day of his cross examination. DW-1 had identified the signature of Ms. Asha Gupta on document Ex.PW-1/5 at point A. The DW-1 has also admitted that L&DO had sent the letter to the plaintiff Trust demanding misuser charges including the Flat of DW- 1, No.A-3, shown at point B in Ex.PW-2/1. DW-1 had also admitted that plaintiff is the owner of land where the apartments fall. DW-1 had stated that he is ready to pay misuser charges and damages demanded by L&DO on account of unauthorized construction raised by defendant.
24. The court is of view that no valid title can be said to be transferred by the plaintiff to defendant as firstly, the plaintiff was not owner of CS No. : 595099/16 (old No. : 551/16) Pg 22 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
suit premises and secondly, the document by which the said transfer, sought to be affected was unregistered. However, document Ex.PW-1/3 can be read for the purposes of showing that defendant is in permissive possession of lessee of suit property. It is further clear from the admission made by the DW-1 that defendants have made some construction on the suit premises which is of such nature that L&DO i.e. lessor of suit property had demanded/claimed the misuser/unauthorized construction charges from the lessee i.e. plaintiff. It is further clear from the cross examination of PW-1 that whatever unauthorized/illegal construction raised by defendant, it was not of such a nature that it has resulted into either inconvenience to the neighbours or has created any type of danger/nuisance of the persons residing in vicinity as plaintiff Trust has not yet received any complaint from the persons residing in the vicinity of the defendant.
25. The plaintiff is claiming relief of mandatory injunction for directions to defendant to remove unauthorized construction and further directions to the defendant for not to raise any further CS No. : 595099/16 (old No. : 551/16) Pg 23 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
unauthorized construction on the basis of document Ex.PW-1/3 to Ex.PW-1/5 whereby the defendant had agreed that defendant shall not raise any illegal or unauthorized construction in the suit property as well as on the basis of document Ex.PW-2/1 whereby the L&DO who is the owner/lessor of land on which the suit premises has been constructed, has claimed misuser/unauthorized construction/penal charges for unauthorized/illegal construction raised by the defendant. The plaintiff is not the owner of the suit property nor the plaintiff was the owner of the suit property at any point of time. In documents Ex.PW-1/3 to Ex.PW-1/5, the defendant had been directed and defendant had itself undertaken not to create any addition or alteration in the suit premises, however, the consequences for the breach of this direction and undertaking has not been mentioned in these documents or any other document on court file. At the most, plaintiff can seek the relief of damages for the breach of agreement/contract on proving the damages suffered by the plaintiff by reason of such breach by the defendant. As the construction raised by the defendant is not hazardous or dangerous CS No. : 595099/16 (old No. : 551/16) Pg 24 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
and as the L&DO has claimed only misuser/unauthorized construction/penal charges for unauthorized/illegal construction raised by the defendant and L&DO has not asked the plaintiff to demolish the illegal/unauthorized construction and as the plaintiff has not shown any other ground for seeking relief of mandatory injunction against the defendant for directions to defendant to remove unauthorized construction and further directions to the defendant for not raising any further unauthorized construction. Plaintiff is not entitled to the relief of permanent or mandatory injunction. Due to construction/addition by the defendants, the plaintiff had received a notice for payment of misuser/unauthorized construction/penal charges, which defendants as per their evidence are ready and willing to pay.
26. In view of the above discussion, in the facts and circumstances of the present case, the court is of the view that plaintiff is not entitled for the decree of mandatory injunction directing the defendants to remove the unauthorized construction raised by them or any direction for not raising any such construction in future. Accordingly, CS No. : 595099/16 (old No. : 551/16) Pg 25 of 26 Lala Diwan Chand & Ors. v. Asha Gupta & Anr.
both the issues No.2 and 5 are decided against the plaintiff. RELIEF
27. In view of the discussion hereinabove, suit of the plaintiff is hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (MAYANK MITTAL)
on 12.04.2018 Civil Judge - 08 (Central)/Delhi
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