Delhi District Court
Dr. V. K. Rohtagi vs Dr. Pradeep Jain on 21 August, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
SUIT NO.247/08.
Unique ID no.02404C0063852008.
Dr. V. K. Rohtagi
S/o Late Mr. Nanak Chand
R/o IA/46B, Ist Floor,
DDA Flats, Ashok Vihar,
PhaseI, Delhi110052.
....Plaintiff
Versus
1.Dr. Pradeep Jain S/o Mr. S. L. Jain R/o KD15B, Ashok Vihar, PhaseI, Delhi110052.
2. Mrs. Poonam Jain W/o Mr. Pradeep Jain R/o KD15B, Ashok Vihar, PhaseI, Delhi110052.
3. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandani Chowk, Delhi.
....Defendants
Date of institution : 18.09.2002
Date on which reserved for judgment :
Date of decision : 21.08.2013
Suit for Permanent and Mandatory Injunction
1/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08
Judgment
1. This judgment shall decide the suit filed by the plaintiff.
2. The present suit has been filed by the plaintiff against Dr. Pradeep Jain and his wife Smt. Poonam Jain who are arrayed as defendants no.1 and 2 respectively and against Municipal Corporation of Delhi arrayed as defendant no.3. The case of the plaintiff is that defendant no.2 has purchased flat bearing no. IA/46A, Ground Floor, DDA Flats, PhaseI, Ashok Vihar, Delhi (hereinafter referred to as the "suit property"). It is averred in the plaint that the plaintiff is the owner of the flat which is above the flat of defendant no.2 in the same building.
3. It is averred in the plaint that defendants no.1 and 2 have carried out unauthorized and illegal construction and have thereby encroached upon the courtyard on the rear side of the property. The said encroachment has been described in green colour in the site plan filed by the plaintiff. It is further alleged that defendants no.1 and 2 are carrying out unauthorized structural changes in their house, which have caused damage to the house of the plaintiff. The details of the said changes have been set out by the plaintiff. The plaintiff has also described the extent to which encroachment of court yard has been carried out by defendants no.1 and 2. It is further alleged that despite requests of the plaintiff, defendants no.1 and 2 did not desist from carrying out such construction. It has been further stated in the plaint that defendants no.1 and 2 are doctors and are carrying out the said construction in order to use the premises for running a nursing home/clinic which is not permissible by building bye laws. It is further 2/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 stated in the plaint that the plaintiff approached various authorities to canvass his grievances but no action was taken by the said authorities.
4. On the basis of the aforesaid averments, the plaintiff has filed the present suit praying for permanent injunction restraining defendants no.1 and 2 from carrying out unauthorized and illegal construction in their property. The plaintiff has further prayed for injunction directing defendants no.1 and 2 to remove the encroachment and to restore the original structure of the suit property. The plaintiff has also prayed for mandatory injunction directing defendant no.3 to demolish the illegal construction and encroachment carried out by defendants no. 1 and 2.
5. Written statement was filed by defendant no.1 which was adopted by defendant no.2 too. In the written statement, defendants no.1 and 2 stated that the suit is barred by limitation as provided in Section 478 of Delhi Municipal Corporation Act. It is further pleaded that the suit is barred by Section 41 (i) of Specific Relief Act as the plaintiff has not approached the Court with clean hands. It is further stated in the written statement that the courtyard which is stated to have been encroached upon is not a common area and is part of the property of defendant no.2 and as such raising of construction thereupon does not tantamount to encroachment. The averment made in the plaint regarding carrying out structural changes was denied. Defendants no.1 and 2 asserted that the changes which have been made are permitted by the regulations of Delhi Development Authority. Defendants no.1 and 2 stated that as per notification dated 3/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 23.07.1998, upto 25% of FAR or 100 sq. metres (whichever is less) can be used for professional activity.
6. Written statement was filed on behalf of defendant no.3. Defendant no.3 stated in the written statement that certain changes have been carried out in the suit property and a letter has been sent to Delhi Development Authority for clarifications about the construction which is permitted in the rear courtyard. The maintainability of the suit was questioned by defendant no.3. Defendant no.3 further stated that there is no danger of collapse of the building by reason of the alterations carried out in the suit property. It is further stated by defendant no.3 that the alterations carried out by defendant no.1 are permitted by order dated 13.12.1996 issued by Delhi Development Authority. Defendant no.3 further urged that the suit is not maintainable for want of statutory notice under Sections 477/478 of Delhi Municipal Corporation Act.
7. After completion of pleadings, issues were framed by Ld. Predecessor of this Court vide order dated 18.11.2005 as follows:
1. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP.
2. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP.
3. Whether the suit is not maintainable in view of Order 1 Rule 9 CPC? OPD.
4. Whether the suit is barred under Section 41 (h) & (i) of the Specific Relief Act, 1963? OPD.
4/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08
5. Whether the suit is barred under Section 477 and 478 of the DMC Act? OPD.
6. Whether the plaintiff has not paid proper court fee on the plaint? OPD.
7. Relief.
8. The plaintiff led evidence in support of his case. He examined himself as PW1. He filed and tendered his affidavit Ex.P1 in evidence. In his affidavit, he reiterated the averments made in the plaint. He identified and relied upon the following documents :
a. Photographs along with their negatives as Ex.PW1/2; b. The site plan as Ex.PW1/3;
c. Changes have been shown in green colour in the site plan as Ex.PW1/4;
d. Copy of complaint along with their postal receipts as Mark A. e. Notification no.D/506/EE (2) NO/2003 datd 03.08.13 as Ex.PW1/6. PW1 was crossexamined and discharged. Thereafter, plaintiff's evidence was closed.
9. The defendants adduced evidence in support of their case.
Defendant no.1 examined himself as DW1 and he tendered his affidavit Ex.DW1/A in evidence. In his affidavit, he reiterated the contents of the written statement. DW1 identified and relied upon the following documents:
a. Sale Deed as Ex.PW1/D1;
b. Conveyance Deed as Ex.PW1/D2;
c. Office Order of DDA as Ex.DW1/1;
5/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 d. Office Order of DDA as Ex.DW1/2;
e. Notification of Ministry of Urban Affairs & Employment Ex.DW1/3.
DW1 was crossexamined and discharged. Thereafter, evidence on behalf of defendants no.1 and 2 was closed.
10.Defendant no.3 also adduced evidence. It examined Mr. J. P. Verma, the then Executive Engineer as DW2. DW2 tendered his affidavit Ex.DW2/A in evidence. He was crossexamined and discharged and then defence evidence was closed.
11.Final arguments have been heard. My issuewise findings are as under:
Issue No.1 "Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP."
12.The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendants no.1 and 2 and their representatives from carrying out unauthorized construction and encroachment in the suit property.
13.According to the plaintiff, the defendants no.1 and 2 are trying to carry out unauthorized construction and encroachment. To support the said assertion, the plaintiff has examined himself as PW1 and has tendered his affidavit Ex.P1 in evidence. In his affidavit, he has reiterated his assertion that the defendants are trying to carry out such construction.
14.The plaintiff/PW1 was crossexamined on behalf of defendants no.1 and 2. In crossexamination, he was questioned about the place 6/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 where his affidavit was sworn in. The said questions posed by defendants no.1 and 2 are irrelevant since the affidavit had been tendered in evidence before the Court on oath. Since the contents of the affidavit have been affirmed in Court on oath, it is immaterial as to whether the affidavit was duly sworn in before an Oath Commissioner prior to its filing in the Court. Irregularities in the attestation of the affidavit, if any, have no bearing on the suit.
15. Defendants no.1 and 2 have stated in their written statement that they are not carrying out any unauthorized construction and that they have not carried out any construction during the six months preceding the suit. From the averments made in the written statement as well as the questions posed by defendants no.1 and 2 during the cross examination of PW1, it is apparent that defendants no.1 and 2 have not completely denied carrying out construction. Their case is that construction has indeed been carried out in their property but the same was much before the filing of the suit and it was as per law.
Hence, even if the case of defendants no.1 and 2 is accepted to be correct, it would not change the fact that some construction was carried out by the said defendants. The apprehension of the plaintiff that the defendants no.1 and 2 may carry out unauthorized construction or encroachment cannot be said to be unfounded.
16.This is particularly so in view of the observations made in the order dated 13.10.2005 passed by the Ld. Predecessor of the Court. As per the said order, defendants no.1 and 2 have moved an application for compounding of deviations in their property. Filing of an application for compounding of deviations suggests that defendants no.1 and 2 7/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 accept that the construction existing in their property is not as per regulations. On the basis of the said observation, it can be inferred that the apprehension of the plaintiff that defendants no.1 and 2 may carry out unauthorized construction and encroachment has some basis. It may be clarified there that no conclusion is being drawn as to whether and if so to what extent, construction in the suit property is unauthorized, since contents of the said application for compounding have not been proved before the Court.
17.Without returning any finding as to whether the existing construction is unauthorized, it is concluded that the plaintiff has a reasonable basis to apprehend that defendants no.1 and 2 may, in future, raise unauthorized construction or encroachment. The plaintiff is entitled to restrain the said activity by issuance of injunction by the Court.
18.The defendants no.1 and 2 have also, in their written statement or in the testimony of DW1, not claimed to be entitled to raise unauthorized construction or encroachment. They have not pleaded the existence of any such right in their favour.
19.There is no gainsaying the fact that the defendants no.1 and 2 are not entitled to raise unauthorized construction or to carry out encroachment. If such construction is raised, it is bound to act to the detriment of the plaintiff who admittedly stays in the same building. Hence, the plaintiff has a right to restrain such activity. An injunction may be issued to prevent the breach of the right of the plaintiff to enjoy his property free from unauthorized construction and encroachment by defendants no.1 and 2.
20.The plaintiff is, thus, entitled to permanent injunction as prayed for. The 8/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 issue is decided in favour of the plaintiff and against defendants no.1 and 2.
Issue No. 2
"Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP."
21.The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for mandatory injunction directing defendants no. 1 and 2 to remove the encroachment and to restore the structure of the suit property. The plaintiff has further prayed for direction to defendant no. 3 to demolish the illegal construction and encroachment.
22.According to the plaintiff, the structure of the suit property has been changed by defendants no.1 and 2. The said construction and modification is alleged by the plaintiff to be unauthorized and impermissible. Further, as per the plaintiff, the defendants no.1 and 2 have carried out encroachment on the courtyard which is stated to be a common area.
23.The plaintiff has reiterated his version in his examinationinchief, wherein he tendered his affidavit Ex.P1 in evidence. The plaintiff/PW1 was crossexamined on behalf of defendants no.1 and 2. During crossexamination, the plaintiff was questioned by defendants no.1 and 2 about the period during which alleged construction was carried out by defendants no.1 and 2. PW1 stated that when the suit was filed, some construction was going on and some had been completed. PW1, however, could not state the period during which the said construction had been carried out. The present suit has been filed against unauthorized construction. The plaintiff ought to have 9/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 disclosed the date when the alleged construction was commenced and completed. That has not been mentioned in the plaint or in the affidavit. The said material fact remaining undisclosed, it appears that the plaintiff is either not aware of the facts or is withholding them from the Court. PW1 also stated in crossexamination that he is not aware whether any construction was carried out one year before the institution of the suit. This further seems to suggest that the plaintiff had not himself seen construction being carried out. Further, this statement runs contrary to the statement made in the plaint that at the time of institution of the suit, some construction was underway. Had construction being going on at the time of filing of the suit, the plaintiff would have said so in his crossexamination and would have emphatically denied the suggestion that construction was complete one year before filing of the suit. The plaintiff would not have pleaded loss of memory. This weakens the credibility of the version of the plaintiff.
24. The defendant no.1 has examined himself as DW1. He has stated in his affidavit that no construction was undertaken in the suit property during the six months preceding the institution of the suit. He has also imputed malice on the plaintiff. He has further stated that the backyard of the flat in question is owned by the defendant no.2 and therefore construction on the backyard does not amount to encroachment. He has stated that the said backyard is not a service area. The defendant no.1 has denied that alterations were made in the suit property in a manner pleaded by the plaintiff. According to defendant no.1, whatever construction was carried out was in 10/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 accordance with the DDA regulations.
25.DW1 was crossexamined by counsel for plaintiff. It has been stated by DW1 that he has been running a clinic in the suit property. He also stated in his crossexamination that after purchase of the suit property he did not shift the kitchen. He denied the suggestion that he removed load bearing walls of the kitchen. He denied the suggestion that he has chiseled the roof of the flat. He further denied the suggestion of carrying out construction and encroachment in the manner alleged by the plaintiff.
26.The first question that arises is whether the defendants no.1 and 2 made any structural changes in the suit property. According to the plaintiff, such structural changes were carried out whereas as per the defendants no.1 and 2, such changes were not carried out. The plaintiff has supported his version of his own testimony and has denied suggestions to the contrary during crossexamination. Similarly, the defendants no.1 and 2 have supported their case by testimony of defendant no.1. The defendant no.1 has asserted that no structural changes were carried out. He remained steadfast during cross examination. The plaintiff simply suggested to defendant no.1 that he had carried out unauthorized construction. The suggestion was denied. Apart from the said suggestion, the plaintiff did not make any attempt to disprove the claim of defendants no.1 and 2 of not having carried out any unauthorized construction. The testimony of the plaintiff/PW1 is pitted against that of defendant no.1/DW1. Both the witnesses have asserted the correctness of their version. Neither parties have examined any independent witness to support their version. That 11/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 being so, the oral version of the plaintiff cannot be said to outweigh that of defendant no.1. There is no reason to reject the testimony of defendant no.1 and accept that of the plaintiff, particularly in light of the weaknesses in the version of the plaintiff as set out above. The plaintiff has not attained the standard of preponderance of probabilities and since the burden to prove the issue is on the plaintiff, he must fail.
27.The plaintiff has omitted to examine officials of Municipal Corporation of Delhi who had visited the suit property during the pendency of the suit, to support his claim that the construction carried out in the suit property is unauthorized. By mere photographs and privately prepared site plans, the inference of carrying out unauthorized construction cannot be drawn. The photographs do not show on going construction. The photographs do not depict exact measurements of the structure. The plaintiff has not filed the photographs of the original flat as allotted. Hence, no comparison can be drawn between photographs or plans so as to infer that structural changes had been carried out. This is particularly so since the defendants have disputed the very fact that photographs are of their property. The "representative plans" filed by the plaintiff have no authenticity. The said plans have not been issued by DDA and do not bear any stamp or authentication. The person who prepared the site plans has not been examined. It cannot be stated that the said plans reflect the true position of the flat when allotted and after modification respectively.
28.Further, it is significant to note that the plaintiff/PW1, in his cross 12/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 examination, denied the suggestion that no architect visited the suit property. It appears from the crossexamination of PW1 that an architect had visited the suit property and prepared the site plans. If that is so, the plaintiff ought to have examined the said architect to depose regarding unauthorized construction carried out by defendants no.1 and 2. That has not been done. Further, the said architect may be competent to prepare the plan of a property as it exists. He, however, is not competent to prepare a plan of the original form of a property unless he visits the property at that time. Such a plan can be issued only by allotment authority i. e. Delhi Development Authority. It is not the case of the plaintiff that the said architect had visited the suit property before the alteration had been carried out. Hence, the plan Ex.PW1/3 of the "original DDA construction" is unreliable since there is no basis of preparing the same.
29.The plaintiff has failed to prove that the defendants no.1 and 2 have carried out major structural changes in the suit property.
30.The only official from the Municipal Corporation examined in the case is Mr. J. P. Verma, the then executive engineer of Municipal Corporation of Delhi. Mr. J. P. Verma stated in his affidavit Ex.DW2/A that some construction work was carried out in the premises of defendants no.1 and 2. He stated that internal changes carried out in the premises are condonable and that the construction carried out in the rear courtyard is unauthorized but compoundable. DW2 was cross examined on behalf of plaintiff. In his crossexamination, he admitted that he had not inspected the property of defendants no.1 and 2. He could not give details of the extent of construction carried out by 13/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 defendants no.1 and 2. He also stated that he has not brought the relevant record pertaining to the suit property.
31.A witness can depose only about the facts which are in his own knowledge. It is a settled principle of law that evidence has to be "direct". Reference may be made to Section 60 of the Evidence Act, 1872. One can depose only on facts which he has himself observed. Assertion of facts which one has not himself seen and which have only been informed by somebody else, is mere hearsay and inadmissible in evidence. No credibility can be attached to such testimony. In the case of Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr. Civil appeal no.4820/07 decided on 18 January, 2011, it was observed as follows:
"If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense, by which it is capable of perception, should make the statement about it and no one else."
The deposition of DW2 must be appreciated in light of the aforesaid principle.
32.DW2 has not visited the suit property. He has not seen the extent of construction. Therefore he is not competent to testify regarding the extent of construction which has been carried out by defendants no.1 and 2 and its legality. The testimony of DW2 Mr. J. P. Verma regarding construction carried out by defendants no.1 and 2 is inadmissible and liable to be discarded.
33.Ignoring the testimony of DW2, the outcome of the suit rests on the deposition of PW1 and DW1. It has already been noted above that the plaintiff/PW1 has failed to discredit the version of DW1 and it 14/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 cannot be inferred that the plaintiff has succeeded in proving his case by preponderance of probabilities. The plaintiff has, thus, failed to prove that defendants no.1 and 2 have carried out major structural changes which are unauthorized and illegal.
34.That apart, even if it is assumed that the defendants no.1 and 2 have carried out unauthorized construction, then too the plaintiff would not be entitled to a direction to either defendants no.1 and 2 or to defendant no. 3 to demolish the said construction and to restore the original structure of the suit property. This is because admittedly the said construction is governed by, and is protected by, the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. Section 3 (2) of the said Act provides that status quo shall be maintained in respect of unauthorized development and encroachment existing as on 01.01.2006. In view of the embargo provided in the Act, no direction can be passed to demolish the said construction.
35.The second question that arises is whether any encroachment has been carried out by defendants no.1 and 2. The plaintiff has alleged that defendants no.1 and 2 have encroached upon the rear courtyard. Defendants no.1 and 2 have claimed that there is no encroachment since the courtyard is part of the property of defendant no.2.
36.In this behalf, it would be relevant to take note of the office orders of DDA Ex.DW1/1 and Ex.DW1/2 dated 16.11.1987 and 13.12.1996 respectively which provide that construction of bathroom and WC in the rear courtyard is a condonable alteration. The said office orders 15/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 state that no action shall be taken against the allottee for carrying out such construction. Since the said office orders of Delhi Development Authority permit the occupant of ground floor to carry out construction over courtyard, the said courtyard cannot be treated to be common property of the occupants of the higher floors. Hence, the alleged construction carried out by the defendants no.1 and 2 cannot be condemned as an encroachment. Consequently, no direction can be passed for removal of the said construction.
37.Besides unauthorized construction and encroachment, the plaintiff has alleged misuse of the suit property. He has stated in the plaint that defendants no.1 and 2 are intending to misuse the suit property and are proposing to run a clinic. The defendant no.1 has also, during his deposition, admitted that he is using the suit property for running a clinic. The defendants no.1 and 2 have claimed that the said use is in accordance with the municipal bye laws.
38.The use of the premises for the purpose of clinic is not required to be examined herein. It is not a subject matter of the suit. In the suit, the plaintiff has prayed for restraint over unauthorized construction of the property and for demolition of existing unauthorized construction. Even if it is found that the premises is being misused or being used in a manner which is contrary to regulations, it would not lead to demolition of the property. Demolition can only be ordered in case of unauthorized construction or encroachment (Section 343 of the Delhi Municipal Corporation Act, 1957). For misuse, the property can be sealed but not demolished (Section 345 A of Delhi Municipal Corporation Act read with directions of Hon'ble Supreme Court in the 16/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 case of M. C. Mehta Vs. Union of India CWP no.4677/1985 dated 16.02.2006). Sealing has not been prayed for. Hence, misuse, even if proved, would not advance the case of the plaintiff. Consequently, the question whether the property is being misused is not relevant and is not required to be decided herein.
39.For the aforesaid reasons, mandatory injunction cannot be issued directing demolition of construction and encroachment. The issue is decided against the plaintiff and in favour of defendants no.1 and 2. Issue no.3 "Whether the suit is not maintainable in view of Order 1 Rule 9 CPC? OPD."
40.The onus to prove this issue was upon the defendants. The plea that the suit is barred for nonjoinder of parties has been raised by the defendant no.1. The defendant no.1 has stated in his written statement that he is not the owner of or tenant in the suit property. He has stated that the suit has been filed against the wrong defendant and that Ms. Poonam Jain is a necessary party and she has not been impleaded as a defendant in the said suit. On this count, defendant no.1 has prayed for dismissal of the suit.
41.During pendency of the suit, Ms. Poonam Jain has been impleaded as a defendant. She has been arrayed as defendant no.2. Since she has been arrayed as a defendant, the objection of defendant no.1 that the suit is not maintainable as she is a necessary party and yet has not been impleaded as a defendant, is no longer sustainable. The said objection is rejected and it is held that the suit does not suffer from nonjoinder of necessary parties.
17/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08
42.Further, this is not a title suit. It is not necessary for plaintiff to array any other person who claims to be the owner of the property. By the suit, the plaintiff has claimed injunction restraining unauthorized construction and encroachment. The plaintiff has pleaded that the defendant no.1 has carried out and is in the process of raising further unauthorized construction. That being so, the plaintiff has correctly filed the present suit against the defendant no.1. In the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar AIR 1963 SC 786, the Hon'ble Supreme Court held that a necessary party is one without whom no order can be effectively passed.
In the case of Harcharan Singh v. S. Bhagar Singh & Ors., AIR 2000 J&K 92, it was held that in a suit for injunction, where the relief is not claimed against a person, he need not be arrayed as a party and the suit would continue to be maintainable.
43.Further, it is settled law that a suit cannot be dismissed even if a person has been wrongly arrayed as a defendant. This has been clearly laid down in Order 1 Rule 9 of Code of Civil Procedure. In view thereof, even if it is assumed that defendant no.1 ought not to have been impleaded as a defendant, his impleadment would not result in dismissal of the suit.
44.It is concluded that the suit is not barred by Order 1 Rule 9 of Code of Civil Procedure. The issue is decided in favour of the plaintiff and against the defendant no.1.
Issue no.4 "Whether the suit is barred under Section 41 (h) & (i) of the Specific 18/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 Relief Act, 1963? OPD."
45. The onus to prove this issue was upon the defendants.
46. According to the defendant no.3, the suit is barred by Section 41 (h) of the Specific Relief Act, 1963. As per the said defendant, the present suit for injunction is not maintainable.
47.Section 41 (h) of the Specific Relief Act provides that injunction shall not be issued if there is an alternative and equally efficacious remedy available to the plaintiff. As to what remedy was available to the plaintiff for protection of his rights has not been disclosed by the defendant no.3 in its written statement. In evidence too, the defendant no.3 has not disclosed any such remedy. Unless the defendant discloses the remedy which ought to have been availed by the plaintiff, it cannot be assessed as to whether the said remedy is equally efficacious so as to operate as a bar to the suit for injunction. As such, the suit is not barred by Section 41 (h) of the Specific Relief Act, 1963.
48.All defendants have stated in their written statement that the suit is barred by Section 41 (i) of the Specific Relief Act, 1963. The plea has been elaborated by defendants no.1 and 2. They have stated that the plaintiff has not approached the Court with clean hands. It is stated by the defendants no.1 and 2 that the plaintiff was himself interested in carrying out unauthorized construction and this was not permitted by the owner of the said property. This, according to the defendants no.1 and 2, was the reason for filing of the present suit.
49.The defendant no.3 has not led any evidence in support of the said 19/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 plea. The defendants no.1 and 2 have adduced evidence and examined defendant no.1 as DW1. He stated in his affidavit that the suit has been filed to harass him. He stated that the plaintiff has not approached the court with clean hands and the suit has been filed maliciously as the plaintiff himself wanted to raise illegal construction. The defendant no.1 has however not disclosed the date when the plaintiff was trying or proposing to carry out unauthorized construction. No photograph or any other document has been placed on record to show that the plaintiff was attempting or threatening to carry out such construction. It is difficult to believe that the plaintiff would propose to raise unauthorized construction not in his own property but in the property of defendant no.2. It is not understood as to how such construction would have benefited the plaintiff. The said construction is stated to have been declined by the owner of the property. The owner of the suit property (defendant no.2) has not been examined as a witness to prove that she had declined permission for such construction and that this provided motive to the plaintiff for filing the present suit. In view of the aforesaid, it is difficult to believe that the conduct of the plaintiff is such that he would not be entitled to injunction. The plea of the defendants that the suit has been filed maliciously, with unclean hands and that the conduct of the plaintiff has been dishonourable cannot be believed.
50.Hence, the suit is not barred by Section 41 (h) and (i) of the Specific Relief Act, 1963. The issue is decided in favour of plaintiff and against the defendants.
20/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 Issue no.5 "Whether the suit is barred under Sections 477 and 478 of the DMC Act? OPD."
51.The onus to prove this issue was upon the defendants. The defendants no.1 and 2 have stated in their written statement that the suit is barred by Section 478 (2) of Delhi Municipal Corporation Act, 1957. It is urged that no construction had been undertaken by defendants no.1 and 2 during the six months preceding the filing of the suit. It is contended that the limitation for filing the present suit, as per Section 478 (2) of the Act, is six months from the date on which cause of action has arisen. It is pleaded that the alleged construction had taken place more than six months before filing of the present suit and therefore the suit is barred by limitation.
52.Section 478 (2) of the Delhi Municipal Corporation Act, 1957 provides that a suit against the municipal corporation shall be filed within six months from the date of which the cause of action has arisen. From the perusal of the provision, it is clear that the period of six months is prescribed only for filing of suit against the municipal corporation and not for instituting the suit against a private person. As such, it is only when the municipal corporation is to be sued that the said period applies. The present suit has been filed against the defendants no.1 and 2 as well as against the municipal corporation. The period of six months applies only to the action as against the municipal corporation. Hence, the entire suit cannot be dismissed as being barred by limitation. The suit would be governed by Section 478 (2) only as against defendant no.3. The action against the defendants no. 21/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 1 and 2 is not hit by the said provision.
53.As noted above, the plaintiff has been held to be not entitled to any relief against the Municipal Corporation of Delhi. Since no relief has been granted as against the municipal corporation, there is no occasion to decide whether the suit is barred by limitation as against the said entity.
54.It has been noted above that the plaintiff is entitled to permanent injunction as against defendants no.1 and 2. The said relief is not barred by Section 478 (2) of the Act.
55.Even against the Municipal Corporation of Delhi, the relief that has been sought by the plaintiff is to demolish the unauthorized construction and encroachment existing in the premises. This is the statutory duty of the Municipal Corporation of Delhi. Even if the construction work has been completed, it remains the unwavering and continuous statutory duty of the Municipal Corporation of Delhi to remove the said construction. Municipal Corporation is not excused from performing the said duty by lapse of time. This is a continuing obligation of the municipal corporation. As a corollary, the failure of the municipal corporation to perform the said duty is a continuous breach of the law. Hence, applying the principle manifested in Section 22 of the Limitation Act, 1963, there is a continuing cause of action in favour of the plaintiff, which is not defeated by limitation.
56.The alleged failure of municipal corporation to perform its duty to demolish unauthorized construction is a continuing source of injury which results in fresh running of limitation during every movement of its subsistence.
22/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08
57.Hence, it is concluded that the suit, as against defendants no.1 and 2, is not barred by Section 478 (2) of the Delhi Municipal Corporation Act, 1957.
58.The defendant no.3 has stated in its written statement that the suit is barred by Sections 477 and 478 of the Delhi Municipal Corporation Act for want of service of statutory notice.
59.Section 477 of Municipal Corporation Act provides that a suit is not maintainable in respect of an act performed by officials of municipal corporation under the Act and in good faith. The present suit is not directed against any act performed under the statute. On the contrary, the grievance of the plaintiff is that the duty cast by the statute has not been performed. The plaintiff is not questioning any statutory action by the defendant no.3. The plaintiff has also unequivocally pleaded absence of good faith. Hence, Section 477 of Delhi Municipal Corporation Act is not attracted in the facts of the case.
60.The present suit has been filed by the plaintiff praying for permanent injunction restraining the defendants no.1 and 2 from raising illegal construction and for mandatory injunction directing the defendant no.3 to demolish the unauthorized construction carried out by defendants no.1 and 2. The relief sought against the defendant no.3 Municipal Corporation of Delhi is for demolition of unauthorized construction. This is the statutory obligation of the defendant no.3.
61.It is not the case of defendant no.3 that it has duly performed its duties prior to the filing of the suit. As such, the suit has been rightly filed by the plaintiff against the omission of the Municipal Corporation 23/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 of Delhi to perform its duties under the Act. The suit is not barred by Section 477 of Delhi Municipal Corporation Act since the said provision immunizes Municipal Corporation of Delhi against suits relating to acts done in compliance of the provisions of the Act. The provision does not prohibit suits which seek the very enforcement of the Act.
62.Filing of civil suit is the ordinary remedy available to a person to compel a statutory body to perform its duties. If the said remedy is held to be barred by Section 477 of Delhi Municipal Corporation Act, it would render the rights conferred by the Act ineffective. Such absolute protection has not been afforded to Municipal Corporation of Delhi by the aforesaid provision. Hence, the suit is not barred by Section 477 of the Delhi Municipal Corporation Act.
63.Under Section 478 (1) of the Delhi Municipal Corporation Act, the suit can be instituted against the Municipal Corporation of Delhi only after two months' prior notice is delivered to the Corporation. This provision does not apply to the present case. Section 478 (3) of the Act provides that the requirement of issuance of prior notice does not apply in cases where the only relief sought is for injunction of which the object would be defeated by delay. In the present case, the plaintiff has sought no relief against the Municipal Corporation of Delhi except that of injunction. From the pleadings, it is amply evident that the suit was filed at a time when continuing with raising of construction by defendants no.1 and 2 was, according to the plaintiff, imminent. Had the plaintiff waited for the notice period of two months to expire, the defendants no.1 and 2 would have carried out the construction and the relief sought in the plaint would have become infructuous. Hence, 24/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 the plaintiff was justified in not serving prior notice before institution of the suit. The suit is covered by exempting provision of Section 478 (3) of the Delhi Municipal Corporation Act and is therefore not barred for want of statutory notice.
64.Further, it is significant to note that the suit was filed along with an application for exemption from service of statutory notice. The application was not declined by the Ld. Predecessor of the Court. The Court proceeded with the suit. By doing so, the Court is deemed to have exempted the plaintiff from service of statutory notice.
65.Even otherwise, the suit is not vitiated for want of notice under Section 478 of Delhi Municipal Corporation Act for the reason that the said provision of law merely provides a procedural requirement which does not go into the merits of the dispute. In this context, it would be appropriate to refer to the decision of Hon'ble Supreme Court in the case of Ghanshyam Dass Vs. Dominion of India, (1984) 3 SCC 46, wherein it was held as under:
"Section 80 of the Code is but a part of the procedure code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore, merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it."
The Hon'ble Supreme Court quoted the decision of Sangram Singh Vs. Election Tribunal, Kotah & Anr., 1955 SCR (2) 1, to hold that the provision of prior statutory notice is designed to facilitate justice and not to punish, and that proceedings should not be allowed to be defeated on mere technicalities.
25/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 The above decision was followed by Hon'ble Court of Delhi in the case of Sh. Gian Chand Vs. Gaon Sabha Aya Nagar & Ors, IA No.176/2009 in CS (OS) No.1578/2006 decided on 10th September, 2009, wherein it was held as under:
"In the case of Ghanshyam Dass Vs. Dominion of India, (1984) 3 SCC 46, it was held that Section 80 of the Code is but a part of the procedure code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore, merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. As far as possible, no proceedings in a court of law should be allowed to be defeated on mere technicalities. This is the principle on which our laws of procedure are based."
In light of the aforesaid decisions, it is amply clear that the suit cannot be dismissed on the ground of absence of prior statutory notice.
66.The suit is not barred by Sections 477 and 478 of the Delhi Municipal Corporation Act, 1957. The issue is decided in favour of the plaintiff and against the defendants.
Issue no.6 "Whether the plaintiff has not paid proper court fee on the plaint? OPD."
67.The onus to prove this issue was upon the defendants. The defendant no.3 has stated in its written statement that "less court fees has been paid by the plaintiff". The objection of the defendant no.3 is not regarding valuation of the suit. The objection is only concerning the payment of court fees.
68.The suit has been valued at Rs.130/ for each relief of injunction. Court 26/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 fees of Rs.13/ has been paid in respect of each relief. The plaint is affixed with stamp of Rs.40/.
69.For the value of Rs.130/, court fees of Rs.13/ was payable at the time of institution of the suit. This has been duly paid. It is not understood as to on what basis the defendant no.3 has raised the plea of inadequate court fees. The said plea has not been elaborated upon. No evidence has been adduced by the defendant no.3 to demonstrate that appropriate court fees has not been paid by the plaintiff. Hence, the said issue stands unproved.
70.It is concluded that the plaintiff has paid proper court fees. The issue is decided in favour of the plaintiff and against the defendant no.3. Issue no.7 "Relief."
71.In the aforesaid facts and circumstances, the suit is partly decreed in favour of the plaintiff and against the defendants no.1 and 2. A decree of permanent injunction is passed restraining the defendants no.1 and 2 and their representatives from raising unauthorized construction in their property bearing no. IA/46A, Ground Floor, DDA Flats, PhaseI, Ashok Vihar, Delhi and from carrying out any encroachment from the said property. The prayer of mandatory injunction directing the defendant no.1 and 2 to remove their encroachment and to restore the original structure of the property, is declined. The suit is dismissed as against the defendant no.3. Parties are left to bear their own costs. Decree sheet shall be prepared. 27/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08 File be consigned to record room.
Announced in the open Court on 21 August 2013.
st (Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District,Rohini Courts, Delhi.
28/28 Dr. V. K. Rohtagi Vs. Dr. Pradeep Jain & ors. Suit no.247/08