Delhi District Court
Mukesh Vats vs . Rajesh Sharma on 3 December, 2013
Civil Suit No.107/13
Mukesh Vats Vs. Rajesh Sharma
03.12.2013
ORDER
(On an application under Order XXXIX Rule 1& 2 of the Code of Civil Procedure, 1908)
1. By way of the present application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, plaintiff is seeking interim relief against the defendant from accessing/ingress outgress from the third door being installed in the suit property by structurally changing the suit property and restraining the defendant from structurally changing the suit property till the disposal of the present suit on the ground that the defendant being a baridar like the plaintiff with malafide intentions have started making structural changes in the suit premises by opening another gate in the suit property despite objections by the plaintiff and damage to the car of the plaintiff which is parked just below the window in place of which the defendant is installing a door. It has been averred by the plaintiff that defendant has no right to make structural changes in the suit property which would adversely affect the ancient structure of the temple.
2. It has also been alleged that on 10.08.2013 the defendant installed a gate/door in place of the window from inside the room of the temple and thereafter started demolishing the wall from outside thereby making illegal constructional changes in the suit property which were stopped by the plaintiff after great Civil Suit No.107/13 Mukesh Vats Vs. Rajesh Sharma Page no.1 of 5 hardship. It has been alleged that on 14.08.2013 the plaintiff and other baridars of the temple requested the defendant not to change the structure of the temple and to restore the window but to no avail. The third gate is being installed by the defendant with ulterior motives to affect the right of the plaintiff and other baridars and so that the plaintiff cannot park his vehicle under the window of the suit property. Reference has also been made to the various litigations between the parties.
3. The suit as well as the application has been opposed on the ground that the suit itself is not maintainable, that the three doors have been in existence since time immemorial and that the door which was in dilapidated condition was got replaced by Shree Yog Maya Mandir Welfare and Management Society. The plaintiff, his wife, his children park their cars in front of the doors of the office since 03.08.2013 in respect of which complaint dated 16.08.2013 has been made and notice has been served upon the defendant. The right of the defendant in the temple including the suit property has been denied. It has been denied that any structural changes have been made. The defendant has also relied on the site plan filed by the plaintiff signed on 27.07.2013 where it is written "previously window now door" showing that the door existed on 27.07.2013 falsifying the stand of the plaintiff that the door/gate was installed on 10.08.2013. It has also been stated that no request has been made by any other Baridar. The defendant has not denied the previous litigations between the parties. Rest of the averments have been denied on Civil Suit No.107/13 Mukesh Vats Vs. Rajesh Sharma Page no.2 of 5 merits.
4. In support of his case the plaintiff has relied upon the plaint in CS.No. 70/2013 along with documents along with orders dated 02.08.2013, photographs, copy of suit, C.S.No. 864/09 along with order dated 04.11.2009 and 13.12.2012. On the other hand the defendant has relied upon the complaint dated 16.08.2013 to SHO PS Mehrauli, the legal notice dated 19.08.2013, photographs of the year 1982, 1993 as well as written statements in C.S.No.864/09 and C.S.No.149/10.
5. Oral submissions have been advanced by the Ld counsels who have reiterated their respective stands.
6. I have heard the submissions made by the Ld. Counsels and have given my thoughtful consideration to the submissions made as well as perused the material on record.
7. It is a settled proposition of law that while deciding an application under order XXXIX Rules 1 & 2 of the Code of Civil Procedure,1908 for the grant of temporary injunction, the court must be satisfied that the applicant has a prima facie case in support of the right claimed by him, the balance of convenience lies in favour of the applicant and the applicant must show that he will suffer irreparable injury if the injunction as prayed for is not granted. All the three aspects should co exist.
8. In the case at hand, it is the grievance of the plaintiff is that the defendant is making structural changes in the suit property. The photographs as Civil Suit No.107/13 Mukesh Vats Vs. Rajesh Sharma Page no.3 of 5 filed by the plaintiff prima facie show that fresh demolition of the structure around the door has taken place. The photocopy of the photographs relied upon by the present plaintiff which had been filed by the present defendant in the suit wherein C.S. No.70/13 also reveals that at the relevant point of time when the photographs were taken only a window existed and not a complete door. Further it appears from the photographs that the door has been installed from inside the room and thereafter the demolition took place. Be that as it may, the allegation of the plaintiff himself is that on 10.08.2013 a gate was installed in place of the window from inside the room of the temple, however the site plan as filed by the plaintiff prepared by the Architect on 27.07.2013 itself shows the portion in green indicating "previously window/now door". Thus the document filed and relied upon by the plaintiff himself does not support his version of the defendant installing the gate/door on 10.08.2013 in place of the window from inside the room of the temple.
9. Further, whether or not the said demolition amounts to a structural change which is illegal and adversely affects the rights of the plaintiff and other baridars is a matter of trial to be decided after evidence has been led. Even the question raised by the defendant in respect of maintainability of the present suit filed against the defendant filed in his personal capacity and not against the society which is responsible for the management and affairs of the Mandir and the existence of which society the plaintiff has not denied in previous litigations also, Civil Suit No.107/13 Mukesh Vats Vs. Rajesh Sharma Page no.4 of 5 cannot be taken note of at this stage in the absence of any document to indicate the extent of authority/function of the society and the same is a matter of trial. Thus, whether the structural alterations come within the purview of the functions of the society is also a matter of trial. No other allegation has been made in the plaint in respect of any other structural changes being carried out by the defendant.
10. In these facts and circumstances, in absence of the documents of the plaintiff supporting his own case, the plaintiff has failed to make out a strong prima facie case in his favour for grant of interim injunction at this stage. Since the plaintiff has failed to show existence of prima facie case, the other two elements need not be gone into.
11. Accordingly, the application of the plaintiff under Order XXXIX Rule 1 and 2 of Code of Civil Procedure 1908 is dismissed.
(Pooja Gupta) CJ03(South)/03.12.2013 Civil Suit No.107/13 Mukesh Vats Vs. Rajesh Sharma Page no.5 of 5