Delhi District Court
Sh. Hari Pal Singh vs Shri Hukam Singh on 27 September, 2014
Kamlesh Kumari v. Hukam Singh & Ors.
IN THE COURT OF MS SURYA MALIK GROVER
SENIOR CIVIL JUDGECUMRENT CONTROLLER (SOUTH)
SAKET COURTS, NEW DELHI
CS No. 135/13
UNIQUE CASE ID NO. 02406C0024852011
IN THE MATTER OF:
SMT. KAMLESH KUMARI
W/O SHRI HARI PAL SINGH
R/O L1/91A, DDA FLATS,
KALKAJI, NEW DELHI110019.
THROUGH HER ATTORNEY:
SH. HARI PAL SINGH
S/O SH. ATMA SINGH
....PLAINTIFF
VERSUS
1. SHRI HUKAM SINGH
S/O NOT KNOWN
R/O L1/91B, DDA FLATS,
KALKAJI, NEW DELHI110019.
2. MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER,
TOWN HALL, CHANDNI CHOWK,
DELHI110006.
CS No. 135/13 Page 1 of 23
Kamlesh Kumari v. Hukam Singh & Ors.
3. ZONAL ENGINEER (BUILDING)/ ADDL.
COMMISSIONER
MUNICIPAL CORPORATION OF DELHI
CENTRAL ZONE, LAJPAT NAGAR,
NEW DELHI. ....DEFENDANTS
DATE OF INSTITUTION : 17.11.2005
DATE OF RESERVING THE JUDGMENT : Not reserved
DATE OF DECISION : 27.09.2014
JUDGMENT
1. This is a suit for permanent and mandatory injunction. FACTUAL MATRIX
2. It is the case of the plaintiff that she is the owner and occupier of a DDA flat bearing No. L1/91A, Kalkaji, New Delhi by virtue of registered deed dated 07.02.2001. Sh. Haripal Singh is the Special Power of Attorney Holder of the plaintiff vide deed executed on 17.11.2005. It is averred that defendant No.1 (hereinafter, referred to as 'defendant') is the owner and occupier of Flat No. L1/91B, First Floor (hereinafter referred to as 'suit property') and residing just above the house of the plaintiff and defendant No.2 and 3 are statutory CS No. 135/13 Page 2 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
body/official responsible for regularization of the building activities. 2.1 In a nutshell, it is the case of the plaintiff that the defendant had started illegal and unauthorized construction over the suit property way back in 1993 and as no action was taken by the concerned authorities, a suit for permanent and mandatory injunction i.e. CS No. 453/93 (CS No. 183/01) was filed by the attorney of the plaintiff and the same was decided by Sh. Daya Prakash, Ld. CJ vide order dated 02.06.2003 and suit was decreed in favour of the plaintiff and against the defendant thereby restraining him from carrying out any unauthorized construction and directing them to remove the construction already in existence and in the eventuality of failure of defendant to comply with the orders, defendants No.2 and 3 were directed to remove the same.
2.2 It is further alleged that as per policy of DDA, the terrace of the first floor is for common usage of the allottees of the ground floor and that of first floor and, therefore, defendant has no exclusive right to use the terrace portion. It is averred that despite repeated reminders and letters, there was no compliance of orders by the defendants and only a cosmetic demolition, which had been earlier done remained in CS No. 135/13 Page 3 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
the suit premises.
2.3 It is further alleged that on 14.11.2005, defendant again initiated unauthorized construction on account of which the roof of the flat of the plaintiff has developed cracks. Further, the defendant has illegally extended the balcony on account of which the easementary rights of light and air of the plaintiff are being violated. Hence, the present suit has been filed seeking the following relief:
"a) a decree of permanent injunction thereby restraining the Defendants, their agents attorneys, occupiers, officials, servants from carrying out the illegal construction on the second floor of the property bearing no. L1/91B, DDA Flats, Kalkaji, New Delhi and also front and back side portion of the above mentioned flat which is duly shown red in the site plan annexed herewith.
b) Decree of mandatory injunction against the Defendants its officials, occupiers, attorneys, employers etc. thereby directing them to remove/demolish the illegal construction carried out on the second floor of the property bearing no. L1/91B, DDA Flats, Kalkaji, New Delhi;
c) Cost of the suit may also be awarded in favour the Plaintiff and against the Defendants;
d) Any other or further relief which this Hon'ble CS No. 135/13 Page 4 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
Court may deem fit and proper under the circumstances of the case may be passed in favour of the Plaintiff and against the Defendants, in the interest of justice."
3. WScumcounter claim was filed by the defendant taking preliminary objections that there has been no illegal construction and only necessary whitewash and repair work is being carried out in the suit property. Moreover, the suit of the plaintiff is barred by res judicata in view of the judgment dated 02.06.2003 of Ld. Civil Judge. 3.1 In reply on merits, it has been stated that as far as the previous suit filed by the plaintiff is concerned, the additions and alterations made by the defendant were as per guidelines and orders issued by DDA/MCD and illegally demolished and, therefore, a suit No. 597/97 was filed before the Court of Ld. Civil Judge, Tis Hazari Courts claiming compensation on account of loss suffered by him. It has been denied that the terrace is for common use for allottees. Rather, the first floor resident has got exclusive right over terrace and entitled to make additional constructions thereupon. Hence, the suit of the plaintiff should be dismissed with heavy costs.
4. In her counterclaim, it is alleged that it is the plaintiff and her CS No. 135/13 Page 5 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
husband who are not allowing the defendant to carry out the necessary repair works in his flat and blocking his way by parking their vehicles on the way to the flat of defendant. Moreover, it is the plaintiff who has made illegal additions in her flat by covering her back courtyard and front courtyard wall to a height of 12 feet illegally. 4.1 Hence, the counter claim filed by the defendant may be decreed thereby restraining the plaintiff from interfering in the whitewash, replastering, repairing and replacement of electricity and water connection pipes of his flat. Further, the plaintiff may be restrained from parking her vehicles on the way to the flat of the defendant and to remove the illegal coverage of back courtyard and front courtyard wall.
5. Replication to the WS has been filed denying the averments made in the written statement and counter claim as false and incorrect and reaffirming the contents of the plaint.
5.1 Reply has been filed to the counter claim averring that it is nothing but an offshoot of the suit and filed with the intention to harass the plaintiff, and even the date when the alleged cause of action CS No. 135/13 Page 6 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
accrued has not been mentioned. On merits, all averments have been denied as false and incorrect.
6. Defendant No.3 has filed reply for himself and also on behalf of the defendant No.2 stating that no new construction activity was found at the time of inspection. Further, the previous unauthorized construction raised by the defendant has been demolished after following due process of law.
6.1 Replication has been filed to WS of defendant denying all the averments as false and incorrect specifically of wrong car parking and raising of walls in the front and back courtyard. Further it has been stated that terrace portion is common and there cannot be any guideline contrary to the same.
6.2 Replication to WS of defendants No.2 and 3 was filed by the plaintiff stating that the status report filed deliberately twisted the facts and has not placed the true facts before the Court. ISSUES
7. On the basis of pleadings of the parties and documents on CS No. 135/13 Page 7 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
record, the following issues were framed on 03.10.2007:
"1. Whether the plaintiff is entitled to relief of permanent injunction, as claimed? (OPP)
2. Whether the plaintiff is entitled to relief of mandatory injunction, as claimed? (OPP)
3. Whether the defendant No.1 is entitled to relief of permanent injunctions as claimed in the prayer clause No.(i) and (ii) of counter claim? (OPD1)
4. Whether the defendant No.1 is entitled to relief of mandatory injunction as claimed vide prayed clause No.
(iii) of counter claim? (OPD1)
5. Relief."
EVIDENCE ON RECORD
8. In support of her case, plaintiff has examined herself as PW1, who tendered her affidavit in evidence as Ex.PW1/A. PW1 has relied on documents viz; copy of conveyance deed (OSR) dated 07.02.2001 as Ex.PW1/1; certified copies of judgment in suit No. 183/2001 titled 'Shri Hari Pal Singh & Anr. v. DDA & Ors.' as Ex.PW1/2; copies of complaints made to MCD and SHO, Kalkaji dated 02.06.2003 as Ex.PW1/3 to Ex.PW1/6 and site plan as Ex.PW1/7. PW1 was duly crossexamined by Ld. counsel for the defendants. 8.1 Plaintiff has also examined Sh. S.C. Gupta, Assistant Director, CS No. 135/13 Page 8 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
DDA as PW2. PW2 has stated that all possible efforts were made to trace the file bearing No. F 37 (18) 76/LAB (H), however, the same could not be traced. Ex.PW2/1 and Mark PW2/2 have been proved as copies of correspondence issued by the Director and copy of complaint made to the SHO dated 12.07.2011 respectively.
8.2 Further, plaintiff has also examined Sh. Arun Kumar, Assistant Engineer (Bldg.), MCD, Central Zone, Lajpat Nagar, New Delhi as PW3. PW3 has relied on complaint dated 24.11.2011 as MarkPW3/1 filed in PS Lajpat Nagar with regard to missing of original file of suit No.528/AT MCD/1994; certified copies of the record of the action taken against property bearing No. L1/91B in the year 1993 and 1995 as Ex.PW3/2 (colly.).
8.3 Both the witnesses PW2 and PW3 have not been crossexamined by the defendants.
9. In rebuttal, defendant has got examined himself as DW1. DW1 has relied on documents like letters dated 19.11.2005 and 22.11.2005 respectively as Ex.DW1/1 and Ex.DW1/2; photographs along with negatives as Ex.DW1/3 to Ex.DW1/5; copy of conveyance deed as Ex.DW1/6 (OSR); original covering letter as Ex.DW1/7; original CS No. 135/13 Page 9 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
conveyance deed performa as Ex.DW1/8; cerified copy of suit No. 177/06 (597/97) titled as Hukum Singh v. Union of India & Ors. as Ex.DW1/9; certified copy of receipt No. 360478, certified copy of letter No. D/W 42/AE (Bldg.)/1/Central Zone/2008, certified copy of building plan of terrace floor, status report filed in suit no. 177/06 as Ex.DW1/10 to Ex.DW1/13 (colly.); certified copy of statement of defendant dated 10.12.2008 in suit No. 177/06 as Ex.DW1/14; certified copy of order dated 10.12.2008 in suit No. 177/06 as Ex.DW1/15; photograph of unauthorised parking along with negative as Ex.DW1/16; copy of office order dated 13.12.1996 as MarkW; copy of policy and procedure of DDA as MarkX; office order dated 13.08.2003 as MarkY; and copy of guide for building permit as MarkZ. DW1 was duly crossexamined by Ld. counsel for plaintiff.
9.1 Defendant has also examined Sh. Kuldeep Kumar, LDC from Record Room (Civil), Tis Hazari Courts, Delhi as DW2. DW2 have relied on the record pertaining to suit No. 177/06 titled as Hukum Singh v. Union of India and copy of order dated 10.12.2008 as Ex.DW2/1; copy of statement dated 10.12.2008 made by the defendant in suit no. 177/06 as Ex.DW2/2; and copy of status report filed by MCD in suit no. 177/06 as Ex.DW2/3. In his crossexamination, DW2 has stated that he was not CS No. 135/13 Page 10 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
aware about the facts of the case.
9.2 Further, defendant has examined Sh. Vikas Gupta, Assistant Engineer (Bldg. Deptt.), MCD, Central Zone, Jai Vihar, Lajpat Nagar, New Delhi as DW3, who has brought the entire record pertaining to sanction of building plan in respect of suit property. 9.3 Defendant has examined Sh. D.B. Sharma, Deputy Director, Enforcement (Housing), Vikas Sadan, INA, New Delhi as DW4, who has produced copy of policy and procedure for permission and regularization of DDA Flats as Ex.DW4/1.
9.4 Further, defendant has also examined Sh. S.C. Arya, Assistant Engineer, Enforcement Housing, DDA, Vikas Sadan, New Delhi as DW5, who has relied on copy of reply issued by DDA to the RTI application of the defendant dated 20.01.2012 as Ex.DW5/1. DW5 was duly crossexamined by Ld. counsel for plaintiff. 9.5 All the four official witnesses have been crossexamined by Ld. counsel for the plaintiff.
CS No. 135/13 Page 11 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
ARGUMENTS
10. It has been argued by Ld. counsel for the plaintiff firstly that unauthorised construction was being done by the defendants on 14.11.2005 without any authorised sanction plan and that defendant has no right to construct on the terrace of the first floor as it was common to both the flats. Further, a civil suit had been filed with respect to unauthorized construction, prior to the present suit, which had been decreed in favour of the plaintiff, but no demolition action had been taken by the defendant No.2 consequently and the present fresh unauthorized construction was again initiated. Secondly, the defendant had not taken the plea of regularisation of the alleged unauthorized portion in his pleadings and hence, as evidence cannot go beyond the pleadings, evidence led in this regard could not be read for the adjudication of the case. Thirdly, the said regularization, as was done without taking an NOC from the ground floor flat owner is bad in law. Fourthly, as the foundation of the flat was very weak, there was a possibility that the entire building may crumble down in case construction was allowed. Fifthly, it is argued that on account of the unauthorised construction, the roof of the plaintiff had developed CS No. 135/13 Page 12 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
cracks and water seepage had occurred which had caused damage to the property of the plaintiff. Finally, the illegal construction had led to blockage of sunlight and air, hence resulting in violation of easementry rights of the plaintiff.
11. In rebuttal, it has been argued by Ld. Counsel for defendant that there has been no illegal construction and only necessary whitewash and repair work was being carried out in the suit property, for which no sanction whatsoever was required from the defendants. Further, even the previous additions and alterations made by the defendant were as per guidelines and had been illegally demolished and same had been regularized, of which mention had been made in application under Order 7 Rule 11 CPC application of the defendant and plaintiff has knowledge of the same as status report in this regard in a civil suit for damages filed by the defendant herein. Furthermore, as per DDA guidelines, the first floor resident had been allowed to construct on the terrace, and no NOC was required from the ground floor flat owners. Even otherwise, the alleged unauthorized construction had been regularized by the defendant No.2 and in case, the defendant had any grievance with respect to the regularization, they had to approach the CS No. 135/13 Page 13 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
Appellate Tribunal MCD, and had no remedy before the Civil Court. Further, as the alleged unauthorized portion had been regularized as per rules and regulations, no plea could be entertained that it was dangerous or had resulted in cracks or in blockage of air or light. Additionally, it has been argued that the suit of the plaintiff is barred by res judicata as the case with respect to said unauthorized construction has already been adjudicated. Qua his counterclaim, defendant has argued that plaintiff has herself raised 12 feet high wall in the back and front court yard, and same may be removed and parks her vehicles on the way to the flat of the defendant, and therefore she may be restrained from doing so.
DECISION AND LEGAL REASONING
12. My issuewise findings are as under:
Issue No.1: Whether the plaintiff is entitled to relief of permanent injunction, as claimed? (OPP) AND Issue No.2: Whether the plaintiff is entitled to relief of mandatory injunction, as claimed? (OPP) CS No. 135/13 Page 14 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
12.1 Both the aforesaid issues are being disposed of simultaneously, as onus to prove these issues was upon the plaintiff and similar evidence has been led upon them.
12.2 As regards alleged unauthorised construction being done by the defendant on 14.11.2005, as per status report filed by MCD, no fresh construction was being carried out by the plaintiff at the time of inspection. There is nothing on record to disbelieve the status report filed by MCD, which is an independent municipal authority. Even otherwise, no photographs have been proved on record or any specific details given in the evidentiary affidavit of the plaintiff as to the specific portions of the suit property where the alleged fresh unauthorized construction was being carried out. 12.3 Coming to the contention that the defendant had no right to construct room on the terrace of the first floor as it was common to both the flats, the said argument has no merits as the same has already been regularized vide Diary No. 04/DDA Flats/B/C2/08 dated 30.05.08 as proved in Ex DW2/3.
12.4 Further, the argument that a civil suit had been filed with CS No. 135/13 Page 15 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
respect to unauthorized construction, prior to the present suit, which had been decreed in favour of the plaintiff, but no demolition action had been taken by the defendant No.2 consequently has no force, as the said argument was liable to be taken in execution proceedings in the said suit and has no concern in the present proceedings. 12.5 The argument of the plaintiff that the defendant had not taken the plea of regularisation of the alleged unauthorized portion in his pleadings has no merits as this was a subsequent event, which occurred in 2008, which was disclosed to the plaintiff in application moved by the defendant under Order 7 Rule 11 CPC. Even otherwise, the said fact came to the knowledge of the plaintiff, when the defendant withdrew the suit for recovery of damages filed by him against the MCD for illegal demolition wherein plaintiff was a party. Hence, the argument is meritless, the fact being a matter of judicial record.
12.6 Yet another argument raised by the plaintiff counsel is that the terrace being common to both flat owners, the defendant was not entitled to make any construction thereupon. DW1 has been cross examined at length with regard to the conveyance deed by virtue of CS No. 135/13 Page 16 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
which the suit property was allotted to him. Even though suggestions have been made to the effect that the terrace of the first floor of the suit property was not allotted to the defendant, the same have been denied. Perusal of conveyance deed Ex.DW1/8 proved on record reveals that flat included 'terrace', which demolishes the case of the plaintiff that the terrace was common to both the flat allottees. 12.7 The contention of the plaintiff that the foundation of the building was very weak and could only bear the load of the first floor or that there were cracks and seepage in the roof of the ground floor flat of the plaintiff or that there was blockage of sunlight and air due to alleged unauthorised construction on the terrace by the defendant is not substantiated by any independent expert witness. Even though the counsel for the plaintiff has questioned the summoned witnesses with respect to the strength of foundation and nature of material used by the MCD, the official witnesses have denied having knowledge about the same.
12.8 On the other hand, defendant has summoned DW3, Sh. Vikas Gupta, AE Building, who has proved the record pertaining to sanctioned building plan of the suit property and has categorically CS No. 135/13 Page 17 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
stated that the plaintiff had applied for permission to construct one room and an open toilet on the second floor of the suit property which had been granted. DW4 Sh. D.B. Sharma, DD Enforcement (Housing) has produced the policy and procedure for permission and regularisation of DDA Flats as Mark X. He has specifically denied that the policy brought by him is applicable to only the applicants who have ownership rights with respect to the roof of the flat. It has been clarified by DW4 that Barsati has been sanctioned for all the top floor allottees as per clause 3 and 4 of Ex. DW4/1. Further, DW5 Sh. S.C. Arya, AE Enforcement (Housing) DDA has also proved on record letter dated 27.01.2012, reply of the DDA to the RTI application of the defendant as per which no NOC is required from the ground floor allottees for getting sanction of barsaati on roof top if the flat confirms the criteria laid down in the policy. In a nutshell, the defendant has been able to prove through summoned official witnesses that the construction in question was being done in accordance with building byelaws and due sanction was granted to the defendant for the said construction. As such, the case of the plaintiff falls flat on its face. 12.9 Even though, suggestions have been given to all defence CS No. 135/13 Page 18 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
witnesses that the permission was not granted as per law and without taking an NOC from the ground floor flat owner, the question of regularization is a matter of appeal before the Appellate Tribunal, MCD and jurisdiction of the Civil Court is barred under Section 347 E DMC Act.
12.10 In view of the aforesaid, I am satisfied that the plaintiff has been unable to establish issue No.1 and 2 in her favour. Issue No.3: Whether the defendant No.1 is entitled to relief of permanent injunctions as claimed in the prayer clauses no.(i) and
(ii) of counter claim? (OPD1) AND Issue No.4: Whether the defendant No.1 is entitled to relief of mandatory injunction as claimed vide prayer clause no. (iii) of counter claim? (OPD1)
13. Both the issues are being decided simultaneously, as onus to prove them was upon the defendant and similar evidence has been led upon them.
CS No. 135/13 Page 19 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
14. As far as prayer No.1 is concerned, while counter claimant/defendant has argued that he was only replastering the outside of his flat and was doing necessary repair works, after carrying out construction as per rules, it has been contended by the plaintiff that counterclaimant was in fact carrying out unauthorized construction and not mere repair works. As discussed in issue No.1 above, the plaintiff has failed to prove that any fresh unauthorized construction was being done by the defendant as alleged. It is trite that that no permission is required for doing repair works/ plastering work by an owner in his flat. The same has been corroborated by various MCD officials summoned by the defendant. In the facts and circumstances, the counterclaimant is entitled to the equitable relief of injunction against the plaintiff.
14.1 Further, as regards the removal of illegal coverage of backyard and front yard by the plaintiff, even though averments in this regard have been made in his evidentiary affidavit. In his crossexamination, counter claimant has stated that apart from jaal on the boundary wall, the plaintiff has not made any construction in the front courtyard, on account of which his car is demolished. Hence, the relief sought is CS No. 135/13 Page 20 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
dismissed.
14.2 Finally, coming to the question of parking of vehicle which results in blocking of ingress and outgress of the counterclaimant, the defendant has led oral evidence in this regard and supported his affidavit by way of a photograph Ex DW1/16 placed on record showing one car being parked on the gate of the defendant. No suggestion has been given to the defendant/counter claimant that the alleged photograph is not of his car or that he has not been parking his car in the alleged manner. Hence, the averments are denied to be admitted. It is admitted that both the parties are staying in the same block, defendant on the first floor and plaintiff on the ground floor. Therefore, it is absolutely necessary that the vehicles are parked by the residents in such a manner so that the ingress and outgress of the other flat owners is not obstructed. In view of the aforesaid, defendant is entitled to equitable relief of injunction.
14.3 Accordingly, issue No.3 stands decided in favour of defendant/ counterclaimant, while he has failed to establish issue No.4 in his favour.
CS No. 135/13 Page 21 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
Issue No.5: Relief.
15. In view of the aforesaid discussion, as plaintiff has failed to prove issue No.1 and 2 in her favour, the suit of the plaintiff stands dismissed.
16. On the other hand, as issue No.3 has been decided in favour of the counterclaimant, while issue No.4 has been decided against them, the counter claim filed by defendant No.1 stands partly decreed.
17. Accordingly, plaintiff, his agents, family members, etc. are restrained from creating any hindrance or disturbance in the repairs or whitewash of the flat of the defendant No.1. Further, they are also restrained from parking their vehicle on the way to the flat of defendant No.1 so as to cause blockage in his ingress and outgress. Remaining reliefs as prayed for by the counter claimant are dismissed as not proved.
18. Decree sheet be prepared accordingly.
CS No. 135/13 Page 22 of 23 Kamlesh Kumari v. Hukam Singh & Ors.
19. No order as to costs.
20. File be consigned to Record Room.
(Announced in the open (Surya Malik Grover)
Court on 27.09.2014) SCJcumRC (South), Saket Courts,
New Delhi
CS No. 135/13 Page 23 of 23