Delhi District Court
Girish Malhotra vs . Edmc & Ors. on 29 November, 2022
Girish Malhotra Vs. EDMC & Ors.
In the Court of Sh. Anubhav Jain
Additional Senior Civil JudgeCumJudge Small Cause Court
CumGuardian Judge, (East District), Karkardooma Courts,
Delhi.
C.S. No.8696/16 (Old No. CS. 252/15)
Shri Girish Malhotra
S/o Shri Late H.K. Malhotra
R/o FF8, Mangal Bazar Road,
Laxmi Nagar, Delhi110092. ...Plaintiff
VERSUS
1.East Delhi Municipal Corporation Through its Commissioner East Delhi Zone, Shahdara, Delhi.
2. Government of NCT of Delhi Through Deputy Commissioner East Office of District Magistrate, District (East) L.M. Bund, Shastri Nagar, Delhi110031.
3. Rajni Sharma W/o R.K.Sharma R/o H. No. C2/75, Sector36, Noida201301, U.P. Page no. 1 of 18 Girish Malhotra Vs. EDMC & Ors.
4. R.K. Sharma S/o Not Known R/o H. No. C2/75, Sector36, Noida - 201301, U.P. ...Defendants Date of Institution : 22/08/2015 Date of reserving of Judgment : 28/10/2022 Date of Judgment : 29/11/2022 Suit for mandatory and permanent injunction Judgment
1. Present suit for permanent and mandatory injunction is filed by the plaintiff against the defendants.
2. In brief, he facts of the case as stated by plaintiff in his plaint are that plaintiff is residing at 2 nd and 3rd Floor of property admeasuring 115 square yards bearing no. FF8, Mangal Bazar Road, Laxmi Nagar, Delhi. It is further stated that plaintiff is also owner of one shop in the same property at the ground floor. It is further stated that the property bearing No. FF8, Mangal Bazar was owned by father of the plaintiff, and by way of Will bequeathed the said property in favour of his three sons.
It is further stated that defendant no. 3 and 4 purchased the ground and first floor of the suit property from the other brothers of Page no. 2 of 18 Girish Malhotra Vs. EDMC & Ors.
the plaintiff and started disturbing the life of the plaintiff. It is further stated that in January, 2015, defendant no. 3 and 4 without obtaining necessary sanction from defendant no. 1 started addition and alteration on the ground floor of the property regarding which plaintiff made complaints to concerned authorities, however, no action was taken upon the same. It is further stated that defendant no. 3 and 4 had removed walls from the first floor and pillars from the covering courtyard shaft without obtaining necessary sanction from defendant no. 1. It is further stated that on 18/08/2005 defendant no. 3 and 4 demolished the first floor portion regarding which plaintiff made a complaint with police, however, defendant no. 3 and 4 along with gunda elements started threatening the plaintiff. It is further stated that defendant no. 3 and 4 are not only raising unauthorised construction but are also endangering structural safety of the entire building by removing load bearing walls, pillars and beams.
By way of present suit, plaintiff has sought following reliefs:
a) Relief of mandatory injunction that MCD be directed to take action against illegal and unauthorised construction so raised by the defendant no. 3 and 4. ;
b) Relief of permanent injunction thereby restraining the defendant no. 3 and 4 from carrying out any illegal or unauthorised construction;
Page no. 3 of 18 Girish Malhotra Vs. EDMC & Ors.
c) Relief of mandatory injunction that defendant no. 3 and 4 be directed to reconstruct load bearing walls, pillars and beams to restore ground and first floor of the above said property.
3. In reply thereof, written statement was filed by defendant no. 1 i.e. MCD wherein it is stated that since the plaintiff has not served the mandatory notice U/s 477/478 of DMC Act prior to filing of present suit, the suit is liable to be dismissed. It is further stated that as per the records an unauthorised construction at shaft in second floor in suit property was booked and demolition action qua the same was passed. It is further stated that the property was again inspected on 30/10/2015 and it has been noticed that owner/occupier of ground and first floor has carried out addition and alterations in shape of removing brick walls and putting beams and columns in existing structure without keeping in mind the safety of the structure. It is further stated that it is the responsibility of the owner/occupier to get the safety of structure analysed by empanelled structure engineer and therefore no order is passed against defendant no. 3 and 4. Answering defendant denied all the other avernments so made by plaintiff in his plaint and prayed for dismissal of suit.
4. In written statement so filed by defendant no. 3 and 4 it is Page no. 4 of 18 Girish Malhotra Vs. EDMC & Ors.
stated that plaintiff has not come up with clean hands before the court and it was the plaintiff who raised unauthorised construction in the year 2012 and it was answering defendants who raised objection with regard to the same. Besides denying other avernments so made by the plaintiff in his plaint, it is stated by answering defendants that they have not raised any unauthorised construction in the suit property and have merely carried out some minor repair works which are permissible as per building bylaws and does not require any permission. It is further stated that defendants have also informed about the said repair work to the MCD vide letter dated 16/09/2014. It is further stated that plaintiff is owner of one shop on the ground floor, second floor and 1/3rd roof right on the third floor and answering defendants are owner of two shops on the ground floor, first floor and 2/3rd rights on the roof and same was purchased by them against valid consideration from lawful owner. Answering defendants further prayed for dismissal of the suit so filed by the plaintiff.
5. Perusal of file reveals that present suit was filed by the plaintiff along with an application U/s 80 CPC and U/s 477/478 of DMC Act seeking exemption from issuing mandatory notice upon MCD prior to filing of the present suit and same was allowed by Ld. Predecessor Court vide order dated 22/08/2015.
Page no. 5 of 18 Girish Malhotra Vs. EDMC & Ors.
6. Further, an application U/o XXVI Rule 9 CPC for appointment of Local Commissioner was moved by the plaintiff and same was allowed by Ld. Predecessor Court vide order dated 27/08/2015 whereby local commissioner was directed to visit the suit property and file a report with regard to existing factual scenario including status of any construction, if at all, carried out in the suit property.
In compliance thereof, report was filed by Local Commissioner on 04/09/2015 wherein it is stated that some alterations were found in the suit property and some walls were removed and some pillars were erected.
7. Further perusal of order dated 03/11/2015 reveals that Ld. Predecessor Court directed defendant no. 1 i.e. MCD to file a status report as to why demolition action is not carried out and further to clarify as to whether any sanction is required to carry out the addition or alteration work stated to have been done by defendant no. 3 and 4.
In compliance thereof, a report was filed by MCD on 15/01/2016 wherein it is stated that as per Section 334 of DMC Act, 1957 permission is required to be taken from MCD for carrying out any changes in the building premises, however, MCD Page no. 6 of 18 Girish Malhotra Vs. EDMC & Ors.
has not received any application from the owner/occupier of the suit premises qua the same, nor any such permission was ever granted. It is further stated that unauthorised construction in the suit property has already been removed.
8. That upon completion of pleadings by the parties, Ld. Predecessor Court vide order dated 15/03/2016 has framed following issues:
1. Whether the plaintiff is entitled for the relief of Mandatory injunction as prayed for in para 'a' of prayer clause? OPP.
2. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
3. Whether the plaintiff is entitled for the relief of Mandatory injunction against defendant no. 3 and 4 as prayed for in para 'c' of prayer clause? OPP.
4. Whether the suit of the plaintiff is liable to be dismissed due to suppression of material facts and plaintiff himself being guilty of raising unauthorised construction? OPD.
5. Whether the suit of plaintiff is improperly valued and appropriate court fees has not been paid? OPD3 and D4.
6. Whether the suit is not maintainable in view of section 41 of Specific Relief Act? OPD 3 and D4.
7. Relief, if any.
Page no. 7 of 18 Girish Malhotra Vs. EDMC & Ors.
9. That thereafter, matter was listed for PE. Despite repeated opportunities, plaintiff has failed to lead any evidence. Therefore, right to lead plaintiff evidence stands closed by Ld. Predecessor Court vide order dated 02/03/2017.
10. That thereafter, two applications i.e. U/o XLVII Rule 1 CPC seeking review of order dated 02/03/2017 and an application U/s 5 of Limitation Act seeking condonation of delay in filing of review application was moved by the plaintiff, however, both the applications were dismissed by Ld. Predecessor Court vide order dated 06/09/2018.
11. That plaintiff herein challenged the said order dated 06/09/2018 before Hon'ble High Court of Delhi in CM(M) 350/19 and Hon'ble High Court of Delhi vide order dated 14/02/2020 granted one last opportunity to the plaintiff to lead evidence subject to payment of cost of Rs. 10,000/ to defendant no. 3 and
4.
12. That thereafter matter was listed for 25/02/2020, 29/06/2020, 29/08/2020, 05/11/2020, 08/02/2021, 17/09/2021, however, time was sought by the plaintiff to lead plaintiff evidence.
Page no. 8 of 18 Girish Malhotra Vs. EDMC & Ors.
Thereafter, Ld. Predecessor Court vide order dated 15/12/2021 while observing that enough opportunities have been granted to plaintiff to lead evidence and despite same, the plaintiff has not complied with the said order, closed the right of plaintiff to lead P.E and matter was listed for Defence Evidence.
13. That thereafter, on 28/03/2022, Ld. Counsel for the defendants states that he does not wish to lead any defendant evidence and matter was fixed for final arguments.
14. I have heard the final arguments and perused the case file carefully.
Issue No.1
1. Whether the plaintiff is entitled for the relief of Mandatory injunction as prayed for in para 'a' of prayer clause? OPP.
15. By way of present suit plaintiff has sought mandatory injunction that defendants be directed to take action against the illegal construction so raised by the defendant no. 3 and 4 on the ground and first floor of the property.
16. It is argued by Ld. Counsel for the plaintiff that in the written Page no. 9 of 18 Girish Malhotra Vs. EDMC & Ors.
statement so filed by the MCD, it has been admitted that unauthorized constructions has been raised on the ground and first floor of the suit property. It is further argued that since there is categorical admission by MCD, the present issue is liable to be decided in favour of plaintiff and against the defendants.
17. For the sake of convenience, relevant portion of the written statement so filed by the MCD is being reproduced as under:
"That the contents of paras 4 to 23 of the plaint are wrong and denied so far it pertains to answering defendant. The allegations made paras under reply against the answering defendant are specifically denied. It is also wrong to allege that the plaintiff has approached to the office of the answering defendant as alleged. It is further wrong to allege that no actio has been taken against the suit property. It is submitted that as per record available, the unauthorized construction at shaft in second floor in suit property bearing No. FF8, Mangal Bazar Road, Laxmi Nagar, Delhi110092, had been booked vide booking file No. 261/B/UC/SH/S/12 dt 01.11.2012. the demolition order was also passed on 30.11.2012. The attempt for taking the demolition action was made on 28.11.2012 and 23.09.2013, however, same could not be taken due to shortage of time. The demolition action was further fixed for 08.02.2013 and again same could not be taken as property was found locked. That, the property was again inspected on 30.10.2015 and, it has been noticed that the owner/occupier of Ground Floor and First Floor has carried out addition and alteration in the shape of removing brick walls and putting beams and columns Page no. 10 of 18 Girish Malhotra Vs. EDMC & Ors.
in the existing structure without keeping in mind the safety of the structure. That, it is the responsibility of the owner / occupier to get the safety of the strcture analyzed by Empanelled Structural Engineer. Hence as such no orders/directions are liable to be passed against the answering defendant and in favour of the plaintiff".
18. It is pertinent to state in here that Ld. Predecessor Court vide order dt. 03.11.2015 has sought reply from the MCD as to why the action upon the illegal construction so raised is not taken. In compliance of the same, the report dt. 15.01.2016 was filed by the MCD wherein it is stated that the unauthorized construction so booked is already removed. Relevant portion of the report is being reproduced as under:
"That, demolition order has been passed in respect of the property FF8, Mangal Bazaar, Laxmi Nagar, Delhi vide no. 261/B/UC/SH/S/12 dt. 30.11.2012, by the then concerned Assistant Engineer (Bldg.). However, as of now,whatsoever unauthorized construction, booked, has already been removed on 04.01.2016.That to elaborate, the only unauthorized construction in the shape of covering of shaft at Second Floor in property FF8, Mangal Bazaar, Laxmi Nagar, Delhi has been demolished".
19. Since as per the report filed by the MCD action against the unauthorized construction is already taken, and further, no Page no. 11 of 18 Girish Malhotra Vs. EDMC & Ors.
evidence is brought forth by the plaintiff to show that any further unauthorized construction is still subsisting on the spot, the present issue stands disposed of being satisfied.
Issue No. 2 and 3.
2. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
3. Whether the plaintiff is entitled for the relief of Mandatory injunction against defendant no. 3 and 4 as prayed for in para 'c' of prayer clause? OPP.
20. Since both the issues required common discussion of law and facts, both the issues are being disposed of jointly. Burden to prove both the issues lies upon the plaintiff.
21. By way of present suit plaintiff has further sought relief of permanent injunction that defendants be restrained from carrying out any unauthorized construction on the ground floor and further be directed to reconstruct load bearing walls, pillars and beams to restore the ground and first floor of the suit property.
22. It is argued by Ld. Counsel for the plaintiff that in the Written Statement so filed by the defendant no. 3 and 4 and they have Page no. 12 of 18 Girish Malhotra Vs. EDMC & Ors.
admitted the fact that they are carrying out repairs in the suit property.
It is further argued that as per the report filed by the Local Commissioner, it was found that some walls were removed and some pillars were erected in the suit property.
It is further argued that in the written statement so filed by the MCD, It is admitted that addition and alteration work is being carried out by the defendant no. 3 and 4 by removing brick walls and putting beams and columns without keeping in mind the safety of the structure.
It is further argued that in the status report so filed by MCD dt. 15.01.2016, it is stated by MCD that defendant no. 3 and 4 have never sought any permission under Section 334 of DMC Act nor any such permission was granted prior to making any alteration in the existing structure.
23. On the other hand, it is argued by Ld. Counsel for the defendant no. 3 & 4 that plaintiff has not led any evidence with regard to the fact that any such load bearing walls were removed or that same may effect the structure of the property. It is further argued that any report so filed by the MCD cannot be read against defendant no. 3 & 4 herein, since defendant no. 1 i.e. MCD has not led any evidence in this regard.
Page no. 13 of 18 Girish Malhotra Vs. EDMC & Ors.
24. It is a settled proposition of law that burden lies upon the plaintiff to prove its own case. It was for the plaintiff to prove that defendant herein has removed load bearing walls etc, and as further raised unauthorized construction over the suit property.
25. As discussed above, plaintiff has not brought forth even an iota of evidence on record to show or prove that any load bearing walls were removed from the suit property thereby causing threat to the safety and structure of the suit property. The plaintiff herein is merely relying upon the written statement as well as report so filed by the MCD.
26. Neither the plaintiff nor MCD has placed on record any sanctioned plan or report of any structural engineer or any other competent person in this regard to show or prove that load bearing walls are being removed by the defendant no. 3 & 4 or that any unauthorized construction is being raised by the said defendants.
27. Merely, an averment on the part of defendant no. 3 & 4 that they are raising some minor constructions on the suit property does not in any manner goes to prove the case of the plaintiff.
Page no. 14 of 18 Girish Malhotra Vs. EDMC & Ors.
28. MCD herein has further not placed on record any evidence to show that the repair or alteration work so stated to have been conducted by defendant no. 2 requires permission of MCD under Section 344 of DMC Act, 1957.
29. Further Local Commissioner who was an advocate and not any engineer in his report has merely stated that it was found at the spot that walls were removed and some pillars were erected, however, same does not in any manner go to show that the alleged walls so removed were load bearing walls etc. Further plaintiff never summoned the local commissioner in the witness box to prove the said report and subject himself to cross examination on the same.
30. In view of the discussion made above, since plaintiff has failed to lead any evidence to prove that unauthorized construction was being raised by the defendant no. 3 & 4 over the suit property or that material addition & alteration were made by removing load bearing walls etc without prior sanction of MCD, both the above said issues are decided against the plaintiff and in favour of defendant no. 3 & 4.
Page no. 15 of 18 Girish Malhotra Vs. EDMC & Ors.
Issue No. 4.
4. Whether the suit of the plaintiff is liable to be dismissed due to suppression of material facts and plaintiff himself being guilty of raising unauthorised construction? OPD.
31. Burden to prove present issue lies upon the defendants. It is stated by the defendants that present suit is liable to be dismissed since plaintiff herein has suppressed the material fact that he also raised unauthorized construction over the suit property.
32. Although, defendants have not brought forth any evidence in this regard. He relied upon the written statement so filed by the MCD wherein it is stated that unauthorized construction at shaft in second floor of the suit property was found and same was booked and demolition order qua the same was passed.
33. Present suit is filed by the plaintiff seeking relief of injunction. It is a settled proposition of law that injunction is an equitable relief and one who seeks equity must do equity. It is further settled proposition of law that plaintiff must come with clean hands before the Court.
34. Merely because upon inspection it was found by MCD that Page no. 16 of 18 Girish Malhotra Vs. EDMC & Ors.
there was some unauthorized construction by plaintiff himself does not in any manner bar the suit of plaintiff, since plaintiff has subsisting cause of action against the defendant herein (as per averments made in plaint). This court is of the view that because some unauthorised construction was found in IInd floor of property, is not sufficient enough to disentitle a person to not to enforce legal remedies available with him.
35. In view of the observations made above present issue is decided against the defendants and in favour of plaintiff.
Issue no. 5 and 6.
5. Whether the suit of plaintiff is improperly valued and appropriate court fees has not been paid? OPD3 and D4.
6. Whether the suit is not maintainable in view of section 41 of Specific Relief Act? OPD 3 and D4.
36. Burden to prove both the issues lies upon the defendant.
37. Present suit for injunction is filed by the plaintiff against the alleged unauthorized construction stated to have been raised by defendant no. 3 & 4 over the suit property.
Page no. 17 of 18 Girish Malhotra Vs. EDMC & Ors.
38. No arguments have been submitted or evidence led by defendant no. 3 & 4 to show as to how the present suit is improperly valued or is not maintainable under Section 41 of Specific Relief Act.
39. In view of the same, both the issues are decided against defendant and in favour of the plaintiff.
RELIEF In view of the above discussions, suit of the plaintiff stands dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Pronounced in the open (Anubhav Jain)
court on 29th Nov., 2022 JSCCcumASCJ/Guardian Judge,
East, KKD Courts, Delhi/29/11/2022
Present Judgment consists of 18 pages and each page is signed by me.
Page no. 18 of 18