Delhi District Court
Sh.Jatinder Pal Singh vs M/S Kohli Cycle Works on 22 July, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.576/00/90.
Sh.Jatinder Pal Singh
S/o.Late Sh.Arjan Singh, aged about 32 years,
R/o.27/56, Ist Floor Punjabi Bagh,
New Delhi. .............Plaintiff
Vs.
01. M/s Kohli cycle Works,
Through its sole Prop.Bharat Bhushan Kohli
of 53/6, Deshbandhu Gupta Road, W.E.A.
Karol Bagh, New Delhi.
02. Sh.Bharat Bhushan Kohli,
Sole-Prop. M/s Kohli Cycle Works,
11-A/10, W.E.A. Karol Bagh,
New Delhi.
03. Shri H S Jaggi
R/o. 53/6, Deshbandhu Gupta, W.E.A
Karol Bagh, New Delhi
................Defendants
Date of institution : 06.11.1990
Date of reservation : 22.07.2011.
Date of pronouncement : 22.07.2011.
JUDGMENT
1. This is a suit for permanent injunction filed by the plaintiff against the defendants.
Suit No.576/00/90 page 1 of page 6
2. In brief, the facts of present case as made out in the plaint are that plaintiff is the owner of property bearing No. 6/53, D.B.Gupta road, WEA, Karol Bagh, New Delhi having purchased vide sale deed April, 1975. It is stated that when the plaintiff purchased the abovesaid property, the defendant no.2, being sole proprietor of defendant no. 1 i.e M/s.Kohli Cycle Works was in occupation of a portion of the premises @ Rs. 55/- per month and by operation of law, the defendant no. 2 being proprietor of defendant no. 1 became the tenant under the plaintiff in respect of one shop measuring approximately 11 ft x 13 ft 11 inches. It is further stated that three years ago, the plaintiff let out adjoining portion of the premises which are in occupation of defendant nos 1 and 2 to defendant no. 3 on a monthly rent of Rs. 260/-. It is case of the plaintiff that on 15.04.1990, the plaintiff observed that defendant nos. 1 and 2 are carrying on some construction in the portion let out to them and on an enquiry it was revealed that floor of the said shop is being lowered and the adjoining wall of the premises in occupation of defendant no. 2 and 3 is being broken and either both the portions are being amalgamated into one or the wall in between the two portions after being removed would be built at some other point in order to suit the convenience of defendant no. 3. It is claimed that defendants have no right to make any addition or alteration in the suit premises or make any construction or material/structural changes and since inspite of repeated requests they are threatening to carry on the illegal constructions; hence the present suit for permanent injunction to restrain the defendants from making any addition or alteration or lowering the floor or making any structural changes in the portion of the property No,. 53/6, Deshbandhu Gupta Road, WEA, Karol Bagh, New Delhi is filed.
Suit No.576/00/90 page 2 of page 6
3. Defendant no.3 contested the present suit by filing detailed written statement, while taking preliminary objections that suit of the plaintiff is without any cause of action; suit of the plaintiff is bad for mis- joinder of unnecessary party and non-joinder of necessary parties; the suit is not maintainable as neither the defendant no. 3 has been carrying out any construction nor he is carrying out any addition or alteration for any structural change in the premises: plaintiff has not come to the court with clean hands and has suppressed the material facts. On merit, the contents of the plaint have been denied while submitting that suit of the plaintiff be dismissed with cost.
4. Plaintiff filed the replication to the written statement of defendant no. 3, whereby he denied the facts as mentioned in written statement while reaffirmed the contents as made in the plaint.
5. From the pleadings of the parties following issues were framed vide order dated 09.12.1996 :-
1. Whether the plaint does not disclose any any cause of action against defendant no. 3 ? OPD-3.
2. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
3. Relief.
6. Vide order dated 03.07.2002, following additional issue for disposal of application under order 39 rule 2-A CPC:-
1. Whether defendant no. 3 has violated injunction order as alleged?
OPA?
Suit No.576/00/90 page 3 of page 6
2. Relief.
7. In support of its case, plaintiff examined Sh. Vinod Kumar, Advocate, Local Commissioner as PW-1 and examined himself as PW-2, however, the cross-examination of PW-2 was deferred on 23.11.2004 but thereafter PW-2 did not appear in the witness box for his remaining cross- examination despite opportunities. Therefore the statement of PW-2 without complete cross-examination can not be read in evidence as it is not purified by the ordeal of cross-examination.
8. I have heard Sh. Y.P.Bhasin ld. counsel for plaintiff and Sh. Anand Maheshwari, ld. counsel for defendant no.3 and perused the record . My issue wise findings are as under:
Issue no.1.
9. Onus to prove this issue was upon the defendant no.3. Ld. Counsel for defendant no.3 vehemently argued that suit of the plaintiff is without any cause of action qua defendant no.3. Cause of action is a bundle of facts on the basis of which a party claims its legal right or alleges violation of legal rights. Perusal of plaint shows that it is alleged by the plaintiff that defendants joined hands in order to make material/structural changes in the premises occupied by them as a tenant, therefore it can not be said that suit of the plaintiff is without any cause of action against defendant no.3. Accordingly, this issue is decided in favour of plaintiff and against the defendant no.3.
Suit No.576/00/90 page 4 of page 6 Issue no.2.
10. Onus to prove this issue was upon the plaintiff. PW-1 is Sh. Vinod Kumar, Advocate who was appointed as Local Commissioner and proved his report as Ex.P1. It is mentioned in report that no construction work was going on but Local Commissioner entered in the shop of Kohli cycle through broken wall from the shop of defendant no. 3. Plaintiff filed his examination in chief by way of affidavit and appeared in the witness box as PW-2 and his cross examination was deferred on 23.11.2004 but thereafter plaintiff did not appear in the witness box for his further cross examination despite opportunities and the statement of plaintiff without complete cross examination can not read in evidence as same is not purified by the ordeal of cross examination. Plaintiff has not proved the fact as mentioned in the plaint and even site plan has not been proved. Plaintiff has failed to prove that he has legal right to obtain injunction as prayed in respect of suit property qua defendant no. 3. Accordingly this issue is decided against the plaintiff and in favour of defendant no.3.
Issue no.3.
11. Onus to prove this issue was upon the applicant/plaintiff. However, applicant/plaintiff has not lead any evidence to show that defendant no.3 violated the injunction order. Statement of PW-2 can not be read in evidence, in absence of complete cross examination. There is no evidence on record that defendant no.3 violated the interim order dated 16.09.94 passed by this court. Accordingly, this issue is decided against the plaintiff/applicant and in favour of respondent/defendant no.3.
Suit No.576/00/90 page 5 of page 6 Relief.
12. In view of my findings on the aforesaid issues, the suit of the plaintiff as well as application under order 39 rule 2-A CPC stands dismissed with no order as to cost.
13. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court ( S.K.MALHOTRA ) on 22.07.2011. SCJ/RC/(North)/DELHI Suit No.576/00/90 page 6 of page 6