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Delhi District Court

Smt. Heera Mani Sharma vs Sh. Vidya Ram Sharma on 10 August, 2023

          IN THE Court OF SH. ARUN KUMAR GARG,
         ADDITIONAL DISTRICT JUDGE-05, CENTRAL
                 TIS HAZARI CourtS, DELHI

RCA DJ No.10/2022
CNR No.DLCT01-002053-2022

1. Smt. Heera Mani Sharma
W/o. Late Sh. Radhey Shyam Sharma

2. Sh. Kapil Sharma
S/o. Late Sh. Radhey Shyam Sharma

Both R/o. 1082-1084, Gali Raja Uggarsen
Bazar Sita Ram, Delhi-110006            .........Appellants

                                             Versus

1. Sh. Vidya Ram Sharma
S/o. Late Sh. Virindavan Sharma

2. Sh. Jagdish Prashad Sharma
S/o. Late Sh. Virindavan Sharma

Both R/o. 1082-1084, Gali Raja Uggarsen
Bazar Sita Ram, Delhi-110006                          ........Respondent

                      Date of Institution of appeal   : 02.02.2022
                      Date of Judgment                : 10.08.2023

CIVIL APPEAL UNDER ORDER XLIII RULE 1(R) READ
WITH SECTION 151 CPC FOR SETTING ASIDE THE
ORDER/DECREE DATED 20.12.2021 BY THE Court OF SH.
AJAY KUMAR MALIK LD. ASCJ(CENTRAL), TIS HAZARI
CourtS, DELHI IN CS NO. 99326/2016 TITLED AS VIDYA
RAM SHARMA & ANR. V. SMT. HEERA MANI SHARMA &
ORS.

JUDGMENT

1. By this judgment, I will dispose of the Regular first appeal filed by the defendants in Civil Suit No. 99326/2016 against the RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

impugned judgment and decree dated 20.12.2021 passed by Ld. ASCJ (Central), THC, whereby, the suit of plaintiffs/Respondents no. 1 and 2 for Permanent and Mandatory injunction was decreed in favour of plaintiffs/Respondents no. 1 and 2.

2. Brief facts, leading to filing of the present appeal, are that a civil suit for permanent injunction, restraining the Appellants from raising any illegal and unauthorized construction in the common place and passage as shown in the red colour in the site plan, in respect of property bearing No. 1082-1084, Gali Raja Aggarsen, Bazar Sita Ram, Delhi-110006 (hereinafter referred to as the "suit property"), annexed with the plaint and for mandatory injunction directing the appellants as well as Respondent no. 3 to remove/demolish the illegal and unauthorized construction raised by the Appellants on 3rd and 4th floor of the suit property as shown in the blue-collar in the site plan was filed by Respondent No. 1 and 2 before Ld. Senior Civil Judge(Central), Delhi on 06.02.2014. It had been alleged by Respondent No. 1 and 2 in the aforesaid suit that the rights in respect of the suit property stood crystallized by the judgment and decree dated 19.07.2002 passed by Sh. Chandra Shekhar, Ld. ADJ, Delhi in Civil Suit No. 76/02 in terms of which the parties had agreed that the common facilities/amenities such as passage, laterine etc., which includes a Courtyard measuring 13' x 9' in the front side portion of the ground floor of the suit property, shall remain common and will be used as such by the parties.

3. However, according to Respondents No. 1 and 2, in the month of February 2013, the appellants started raising unauthorized construction in the suit property leading to filing of complaints dated 14.02.2013 and 01.03.2013 by Respondents RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

No. 1 and 2 to Respondent No. 3, however, the appellants herein, in collusion with the officials of Respondent No. 3 have succeeded in their illegal design i.e. in raising illegal construction of the 3rd and 4th floor of the suit property without any sanctioned Layout plan. So far as the common passage on the front side of ground floor of the suit property is concerned, according to them, a civil suit for permanent and mandatory injunction for construction of a partition wall in the common passage, filed by the predecessor-in-interest of the appellants, was pending adjudication in the Court of Sh. Rohit Gulia, Ld. Civil Judge (Central) Tis Hazari Courts, Delhi, which was dismissed by Ld. Civil Judge vide judgment and decree dated 31.10.2013 with the finding that in view of the memorandum of partition dated 23.12.1982, no construction in any manner and shape can be allowed to be raised in the common passage.

4. It was after the aforesaid judgment and decree dated 31.10.2013, according to Respondent No. 1 and 2, the appellants became more aggressive and started raising illegal and unauthorized construction in the common passage of the suit property and on 04.02.2014 had brought the building material for the aforesaid purpose. Objection of Respondents No. 1 and 2 to the aforesaid unauthorized construction, according to them, had led to police complaints and subsequently to a compromise dated 04.02.2014 between the parties, however, on 05.02.2014, the appellants had again started extending threats to the respondents no. 1 and 2 to implicate them in false cases and thereafter to raise illegal and unauthorized construction in the common passage in connivance with the officials of the local police as well as Respondent No. 3.

Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

5. Under the aforesaid circumstances, Respondents No. 1 and 2 were constrained to file the aforesaid suit for permanent and mandatory injunction against the appellants as well as Respondent No. 3.

6. Upon receipt of the plaint, summons of the suit were directed to be issued by Ld. Trial Court vide order dated 07.02.2014 and after service, all the three defendants, i.e. the appellants and Respondent No. 3, entered appearance. A joint written statement was, thereafter, filed on behalf of appellants on 22.03.2014, whereas, a separate written statement on behalf of Respondent No. 3 was filed on 11.03.2014.

7. In their joint written statement, Appellants have taken several preliminary objections to the maintainability of the aforesaid suit including that the suit was not only barred under the provisions of Order 2 Rule 2 CPC and Section 11 CPC, but, the same was also without any cause of action in favour of Respondents No. 1 and 2 since the appellants had never obstructed the common passage in violation of order dated 19.07.2002 of Ld. ADJ, Delhi in the partition suit no. 76/2002 between the parties. So far as the construction on 3 rd and 4th floor of the suit property is concerned, it was alleged by the Appellants in their written statement that the same was very old construction and had been occupied by the appellants since long. In fact, according to them, on 10.03.2014, field staff of Respondent No. 3 had visited the suit property and had found the construction to be old and occupied. As per the aforesaid report, according to Appellants, at the time of inspection no ongoing unauthorized construction was found in the suit property.

8. On the other hand, according to them, it was the RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

Respondents No. 1 and 2, who had raised a wall closing the door of Appellants on the 3rd floor which was demolished by the MCD while the construction was still ongoing on 07.03.2014, however, inadvertently Respondent No. 3 had referred the aforesaid construction as the construction having been carried out by the Appellants. Appellants have thus prayed for dismissal of the aforesaid suit of Respondents No. 1 and 2 with heavy costs.

9. Respondent No. 3, on the other hand, had sought dismissal of the suit on the ground that the same was barred under the provisions of Section 477/478 of the Delhi Municipal Corporation Act, 1957, since, no notice under the aforesaid provision was served by Respondent No. 1 and 2 upon Respondent No. 3 before institution of the suit. Moreover, according to Respondent No. 3, the suit property was inspected by the field staff of Respondent No. 3 on 10.03.2014 and during the inspection the same was found to be consisting of ground floor to 3rd floor and one room at the 4th floor, which was old and occupied and at the time of inspection no ongoing unauthorized construction was seen in the property. It has further been alleged in the aforesaid written statement that the owner/occupier of the property in question had tried to raise unauthorized construction in the shape of wall at the ground floor and third floor, which was demolished at the ongoing stage itself.

10. Respondent No. 3 had also prayed for dismissal of the suit on the ground that the same was without any cause of action against Respondent No. 3 and was also liable to be dismissed for want of concealment of material facts in terms of section 41(i) of the Specific Relief Act, 1963 while assuring the Court that if any ongoing unauthorized construction is noticed in the suit property, RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

Respondent No. 3 shall take appropriate action as per relevant provisions.

11. Separate replications to the aforesaid written statements of the Appellants as well as Respondent No. 3 were thereafter filed by Respondents No. 1 and 2 on 02.04.2014, wherein, Respondents No. 1 and 2 had once again reiterated the stand taken by them in their plaint and had denied the contrary averments of the appellants as well as Respondent No. 3 in their respective written statements.

12. Thereafter, on the basis of pleadings of the parties, as many as, six issues were settled by Ld. Trial Court vide order dated 30.07.2015 and eventually after conclusion of evidence on behalf of the parties, the suit of Respondents No. 1 and 2 for permanent and mandatory injunction was decreed in their favour vide impugned judgment and decree dated 20.12.2021.

13. Vide the impugned judgment and decree dated 20.12.2021, Ld. Trial Court has negated the contention of appellants that the suit of Respondents No. 1 & 2 was barred by the provisions of Order 2 Rule 2 CPC since Respondent No. 1 and 2 had not taken any plea, similar to the plea taken by them in the present suit, in the earlier suit bearing No. 76/2002, on the ground that upon a comparison of site plan Ex. PW-1/15 and Ex. PW-1/8, it was apparent that the construction on the 3 rd and 4th floor of the suit property was raised after the year 2002. It was observed by Ld. Trial Court that the site plan Ex. PW1/15, which stood admitted by the appellants in the present suit, clearly depicted not only the common portion but also the construction existing on the 3 rd and 4th floor of the suit property in the year 2002 and on a comparison of the aforesaid site plan with the site plan Ex. PW1/8, filed by RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

Respondent No. 1 and 2 along with the plaint, depicts that the construction on the 3rd and 4th floor of the suit property had been carried out after disposal of the civil suit Bearing No. 76/2002 in the year 2002 and hence, the present suit cannot be considered to be barred by the provisions of Order 2 Rule 2 CPC since the facts which originated after 2002 could not have been pleaded in the year 2002.

14. So far as the issue of Respondents No. 1 & 3 being guilty of concealment of material facts is concerned, even the said issue has been decided by Ld. Trial Court against the appellants on the ground that they have failed to prove that any material fact had been concealed by the Respondents No. 1 and 2 in the plaint filed by them.

15. So far as the issue of the suit being barred by the provisions of Section 477/478 of Delhi Municipal Corporation Act, for want of statutory notice, is concerned, Ld. Trial Court has decided the aforesaid issue against Respondent No. 3 on the ground that the suit of Respondents No. 1 and 2, being a suit for permanent injunction, no statutory notice was required to be given to Respondent no. 3 before filing of the suit in terms of Section 478 (3) of the Delhi Municipal Corporation Act, 1957.

16. On the issue of entitlement of Respondents No. 1 and 2 to a decree for permanent injunction restraining the Appellants from raising any construction in the common place and passage shown in the red color in the site plan and from interfering with peaceful use and enjoyment of the aforesaid portion by the Respondents No. 1 and 2 is concerned, it was held by Ld. Trial Court that the Respondents No. 1 and 2 had been able to prove the raising of unauthorized construction in the common passage by the RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

Appellants in the month of February 2014, which fact also stood admitted by Appellant no. 1 during her cross-examination by admitting demolition of wall by the MCD on the 3 rd floor, though, she had failed to prove that either the aforesaid wall was constructed on the 3rd floor or that the same was raised by the Respondents No. 1 and 2 and not by the Appellants. Besides, it was held that DW1 during her cross-examination has also admitted the fact of construction of the wall by her at the side of staircase.

17. So far as the entitlement of Respondents No. 1 and 2 to the decree of mandatory injunction directing the Appellants and Respondent No. 3 to remove/demolish the illegal and unauthorized construction on the 3rd and 4th floor of the suit property, as shown in blue colour in the site plan Ex. PW1/8, is concerned, Ld. Trial Court has relied upon the copies of statements of the parties as well as order dated 19.07.2002 passed by Ld. ADJ, Delhi in CS No. 76/2002, besides the site plan Ex. PW-1/15 vis-a-vis the site plan Ex. PW-1/8 to come to a conclusion that the Respondents No. 1 and 2 have been able to prove that the unauthorized construction on the 3 rd and 4th floor was raised by the Appellants after the year 2002 and hence the same was required to be demolished.

18. It is the aforesaid impugned judgment and decree dated 20.12.2021 passed by Ld. ASCJ(Central), which is sought to be challenged by the Appellants (Defendants No. 1 and 2 in the suit), by way of the present appeal. Although, as per the memorandum of appeal, the appellants have challenged the impugned judgment and decree dated 20.12.2021 on as many as 38 grounds, however, a bare perusal of the aforesaid grounds RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

would reflect that most of the same are not only beyond the pleadings of the parties in the suit, but, are also beyond the evidence led on their behalf.

19. In sum and substance, the appellants have sought to challenge the impugned judgment and decree dated 20.12.2021 on the ground that Ld. Trial Court has failed to consider that after receipt of complaints from Respondents No. 1 & 2, the suit property was inspected by the officials of Respondent No. 3 and it was categorically stated by them in their report that the construction raised by the appellants on the third and fourth floor of the suit property was old and occupied. It has further been alleged by the Appellants that Ld. Trial Court has also failed to consider the irrational answers of Respondent No. 1 during his cross-examination regarding the surroundings of the suit property, which clearly indicated that the said witness was intentionally avoiding answers to the relevant questions and that he alongwith respondent no. 2 had filed the false and frivolous suit against the appellants seeking demolition of 3rd and 4th floor of the suit property to satisfy his ego despite the fact that the suit property is surrounded by multi-storey buildings, one of which had been constructed by none other than the son of Respondent No. 1.

20. It is further alleged by the Appellants that the appellants have examined themselves as DW1 and DW2 in support of their case and despite the lengthy cross-examination of the aforesaid witnesses by Respondents No. 1 and 2, their testimonies could not be shaken. They have thus prayed for setting aside of the impugned judgment and decree dated 20.12.2021 passed by Ld. Trial Court.

Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

21. Upon receipt of appeal, notices were directed to be issued to Respondents vide Order dated 02.02.2022. The same were duly served upon the Respondents and they had accordingly entered their appearance, however, no reply to the present appeal has been filed on behalf of either of the Respondents. Final arguments were thus heard on behalf of the parties. Besides, written submissions have also been filed on behalf of Respondents No. 1 and 2.

22. It is submitted by Ld. Counsel for Appellants that the impugned judgment and decree dated 20.12.2021 is bad, not only, on facts, but also, in law, in as much as, Ld. Trial Court has failed to consider the report as well as the written statement of Respondent No. 3, wherein, Respondent No. 3 has categorically pleaded that during the inspection of the suit property on 10.03.2014, no ongoing unauthorized construction was noticed by its field officials and whatever construction had been raised on the 3rd and 4th floor of the suit property, the same was found to be old and occupied. He submits that Ld. Trial Court has failed to appreciate that no sanction plan for repair/renovation of the construction on the 3rd and 4th floor of the suit property was required to be obtained by the Appellants and the Respondent No. 1 and 2 have failed to prove that any unauthorized construction was raised by the Appellants in the suit property on or around the date, month or year alleged in the plaint.

23. Ld. Counsel for Appellants has also sought to rely upon certain house tax receipts in respect of the suit property in support of his contention that the 3rd and 4th floor of the suit property had been assessed to property tax since long and in fact, RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

there had been a fire on the 3 rd floor of the suit property in the year 2011 as per the fire incident report of the fire department which clearly shows that the 3rd floor of the suit property was existing even in the year 2011. He submits that Respondent No. 1, who had examined himself as DW1, had avoided rational answers to the questions put to him during his cross-examination regarding the surroundings of the suit property which clearly indicates his malafide intention to harass the Appellants by filing the present false suit on the basis of alleged unauthorized construction while he has failed to take any action against the adjoining properties, one of which had been constructed by his own son.

24. Under the aforesaid circumstances, according to him, the Respondents No. 1 and 2 were not entitled to the decree of permanent and mandatory injunction in terms of provisions of Section 41(i) of the Specific Relief Act. He has thus prayed for setting aside of the impugned judgment and decree dated 20.12.2021.

25. On the other hand, it is submitted on behalf of Respondents No. 1 and 2 that the documents i.e. Annexure-D to N and Q to R annexed by the Appellants with their appeal were not part and parcel of the judicial record of Ld. Trial Court and hence, the same cannot be looked into by this Court for any purpose whatsoever. For the very same reason, according to Ld. counsel for Respondents No. 1 and 2, the Court cannot look into the grounds of challenge in the present appeal on the basis of the aforesaid documents. It is submitted by Ld. Counsel for Respondents No. 1 and 2 that the Respondents No. 1 and 2 had been able to prove their case as per the plaint in the suit on the RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

basis of the uncontroverted testimony of PW-1, which was duly corroborated by the documents Ex. PW1/1 to Ex. PW1/19.

26. He submits that there had been a categorical admission on the part of appellants during their cross-examination that the 3 rd and 4th floor of the suit property had been constructed by them without any sanction plan and hence, the same was illegal and unauthorized. It has further been alleged by Ld. Counsel for Respondent No. 1 and 2 that Ld. Trial Court after considering all the facts and material on record has rightly passed the impugned judgment and decree dated 20.12.2021 and the appellants have failed to point out any illegality or infirmity in the aforesaid judgment. He has thus prayed for dismissal of the present appeal of the appellants with heavy costs.

27. So far as the Respondent No. 3 is concerned, it has been contended by Ld. Counsel for Respondent No. 3 that the Respondent No. 3 had been unnecessarily impleaded in the aforesaid suit without service of the mandatory statutory notice in terms of Section 478 of the DMC Act, 1957 and hence the suit of Respondents No. 1 and 2 against Respondent No. 3 was not maintainable. Even otherwise, according to Respondent No. 3, Respondent No. 3 is ready to abide by any direction Which may be passed by this Court in the present appeal.

28. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record. A bare perusal of the Trial Court record would reflect that the Respondents No. 1 and 2 in the present appeal had filed the civil suit for permanent and mandatory injunction before Ld. Trial Court while joining two separate causes of action i.e. the raising of unauthorized construction by the Appellants in the common RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

passage, including the Courtyard, in the front portion of ground floor of the suit property in violation of the judgment and decree dated 19.07.2002 of Ld. ADJ, Delhi in CS No. 76/2002 and raising of illegal and unauthorized construction by the Appellants on the 3rd and 4th floor of the suit property.

29. The cause of action for filing of the suit for permanent injunction, restraining the Appellants from raising unauthorized construction encroaching upon the common passage including Courtyard in the front portion of ground floor of the suit property, as per the averments made in the plaint, had arisen on 04.02.2014, whereas, cause of action for the suit for mandatory injunction directing demolition/removal of unauthorized construction on the 3rd and 4th floor of the suit property had allegedly arisen in favour of Respondents No. 1 and 2 in the month of February 2013.

30. As has already been observed hereinabove, Appellants in their written statement had denied the existence of either of the aforesaid two causes of action in favour of Respondents No. 1 and 2. Existence of cause of action for the relief of permanent injunction has been disputed by them on the ground that they had not raised any unauthorized construction in the common passage on the ground floor of the suit property in violation of judgment and decree dated 19.07.2002. So far as the cause of action for filing of the suit for mandatory injunction seeking demolition of unauthorized construction on the 3rd and 4th floor of the suit property is concerned, the existence of the same has been denied by the Appellants in their written statement on the ground that the said construction was old and occupied and the Respondents No. 1 and 2 were not entitled to the relief of mandatory injunction RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

because of their conduct in filing the suit merely for harassing the Appellants. Respondent No. 3 had also joined the Appellants in their plea that upon inspection of the suit property by the field staff of respondent no.3 on 10.03.2014, the construction of the 3rd and 4th floor of the suit property was found to be old and occupied, whereas, the unauthorized wall on the ground and third floor of the suit property had been demolished in the demolition action dated 10.03.2014.

31. Respondent No. 3 has also objected to the maintainability of the suit against Respondent no. 3 on the ground that it was not only without any cause of action against Respondent No. 3 but also on the ground that the same was barred for want of service of mandatory statutory notice under 477/478 of the Delhi Municipal Corporation Act, 1957.

32. As has already been observed hereinabove, Ld. Trial Court, in the impugned judgment dated 20.12.2021, has decided the issue of bar of the suit in terms of Section 477/478 of the Delhi Municipal Corporation Act, 1957(hereinafter referred to as the "DMC Act") against Respondent no. 3 on the ground that the suit, being a civil suit for permanent injunction, no statutory notice in terms of section 477/478 was required to be served upon Respondent No. 3 before filing of the suit. I am not in agreement with the aforesaid finding of Ld. Trial Court.

33. It is significant to note in this regard that as per Section 478(1) of the DMC Act, no suit against Respondent No. 3 Corporation could have been instituted until the expiration of two months after a notice in writing has been left at the office of the Corporation and unless the notice states explicitly the cause of action, the nature of the relief sought, the amount of RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered. Section 478(2) of the DMC Act prescribes a period of limitation of six months for filing of such a suit against Respondent No. 3 Corporation from the date on which the cause of action had arisen. Section 478(3) of the DMC Act, which is in the nature of exception to the aforesaid sub-sections, lifts the aforesaid bar merely in respect of a suit, in which the only relief claimed is an injunction of which the object would be defeated by insistence on giving of notice or postponement of the institution of the suit.

34. A bare perusal of the aforesaid provision shows that Section 478(3) of the Act does not Completely lift the embargo in filing all suits against Respondent No. 3 Corporation in terms of sub-section(1) and (2), in case wherein the relief of injunction is prayed for by the intending plaintiff. In my considered opinion, the intending plaintiff is required to serve the notice under Section 478(1) of the DMC Act upon Delhi Municipal Corporation before filing a suit even if the only relief claimed in the suit is an injunction, provided the object of seeking the aforesaid relief should not be defeated by giving of the notice or postponement of institution of the suit. Thus, in my considered opinion, Section 478(3) of the Act applies to such suits for injunction wherein considering the urgency of the matter, if giving of a notice in terms of section 478 (1) of the Act is insisted, its object would be defeated.

35. In the case in hand, one of the reliefs prayed for by the Respondents No. 1 and 2 is the relief of prohibitory injunction restraining the construction in the common passage on the RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

ground floor of the suit property, which, in my considered opinion, squarely falls within the four corners of Section 478(3) of the DMC Act. However, so far as the 2 nd relief prayed for in the plaint i.e. the relief of mandatory injunction is concerned, in my considered opinion, the same does not fall within the four corners of Section 478(3) of the DMC Act so as to exempt the respondents no. 1 and 2 from serving a notice upon the respondent no. 3 before filing of a suit, particularly in view of the fact that the alleged unauthorized construction on the 3 rd and 4th floor of the suit property was raised by the Appellants way back in the month of February 2013, whereas, the suit has been filed by the plaintiff in the month of February 2014 and hence there was no urgency on the part of Respondents No. 1 and 2 to seek the aforesaid relief of mandatory injunction without service of statutory notice so as to defeat the purpose of the aforesaid relief.

36. Ld. Trial Court, while deciding the aforesaid issue against Respondent No. 3, has merely referred to the suit as a suit for merely permanent injunction and did not even refer to the relief of mandatory injunction prayed for by the Respondents No. 1 and 2 in the plaint, which, in the peculiar facts and circumstances of the present case, could not have been considered to be so urgent so as to dispense with the requirement of serving statutory notice under Section 478 (1) of the DMC Act. It is further significant to note in this regard that the only relief prayed for by the Respondent No. 1 and 2 against Respondent No. 3 was the relief of mandatory injunction, in order to seek which relief, the Respondents No. 1 and 2 had waited for almost one year and hence they could not have claimed any exemption from serving the notice in terms of Section 478(1) of the DMC Act upon RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

Respondent No. 3. The suit of plaintiff against Respondent No. 3 was thus liable to be dismissed on this ground alone and since the finding of Ld. Trial Court on the aforesaid issue has been found to be erroneous, the impugned judgment and decree dated 20.12.2021, in so far as the same is qua Respondent No. 3, is liable to be set aside and is hereby set-aside.

37. Now, coming to the impugned judgment and decree dated 20.12.2021 for permanent injunction restraining the Appellants from raising any unauthorized construction in the common passage of ground floor of the suit property, I do not find any infirmity in the judgment of Ld. Trial Court in this regard, in as much as, there had been categorical admissions on the part of Appellants, during their cross-examination, regarding raising of of wall by them besides the staircase in the suit property. Rights of both the parties qua the aforesaid common passage/Courtyard on the ground floor of the suit property have admittedly been settled way back in the year 2002 in terms of judgment and decree dated 19.07.2002 of Ld. ADJ Delhi in CS No. 76/2002. Since the Respondents No. 1 and 2 had been able to prove that the Appellants had no right to raise unauthorized construction in the aforesaid portion in violation of the aforesaid judgment and decree, Ld. Trial Court has rightly decreed the suit of Respondents No. 1 and 2 against the Appellants for a decree of permanent injunction restraining them from raising any such construction in the common passage. The impugned judgment and decree dated 20.12.2021 passed by Ld. ASCJ(central) is thus affirmed to the extent of the relief of permanent injunction restraining the Appellants from raising unauthorized construction in the common portion on the ground floor of the suit property.

Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

38. So far as the relief of mandatory injunction directing the removal/demolition of construction on the 3rd and 4th floor of the suit property is concerned, in my considered opinion, Ld. Trial Court has misdirected itself by comparing the site plans Ex. PW1/15 and Ex. PW1/8 to hold that since the construction reflected in the site plan Ex. PW1/8 on the third and fourth floor is not seen in site plan Ex. PW1/15, the same, having been raised by the Appellants after the year 2002 admittedly without any sanctioned layout plan, was liable to be demolished. It is no doubt true that as per the site plan Ex. PW1/15, which was a part of judicial record of the suit for partition between the parties bearing No. 76/2002, no construction in the front portion of the suit property on 3rd and 4th floor had been shown, which, clearly indicates that the construction must have been raised by the Appellants on or after the decree dated 19.07.2002 passed in CS No. 76/2002. However, the aforesaid fact by itself, in my considered opinion, shall not make the Respondents No. 1 and 2 entitled to get a decree of mandatory injunction directing demolition of the aforesaid construction in their favour and against the appellants.

39. There is no gain saying that there is no Specific Article in the schedule appended to the Limitation Act, 1963 prescribing a specific period of limitation for filing of a suit for mandatory injunction, however, it is settled legal position that in the absence of any specific article, the suit for mandatory injunction can be filed within a period of 3 years from the date when the right to sue accrues in terms of the residuary Article 113.

40. Thus, under the aforesaid circumstances, it was incumbent RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

upon the Respondents No. 1 and 2 to prove that the alleged illegal construction had been raised by the Appellants on the 3 rd and 4th floor of the suit property within 3 years prior to filing of the aforesaid civil suit. Although, the Respondents No. 1 and 2 have alleged in the plaint that the unauthorized construction on the 3rd and 4th floor of the suit property had been raised by the Appellants in the month of February 2013, however, in my considered opinion, they have failed to prove the aforesaid fact by leading any cogent evidence except by way of their bald statement to the aforesaid effect.

41. Thus, even if, there is no error in the finding of Ld. Trial Court that the Alleged unauthorized construction on the 3 rd and 4th floor of the suit property had been raised by the Appellants after the year 2002, however, in the absence of any evidence regarding construction of the aforesaid portion by the Appellants within 3 years, immediately prior to filing of the suit, the suit of Respondents No. 1 and 2 for mandatory injunction directing removal of the aforesaid construction could not have been decreed, more so, when the Appellants had categorically taken a plea that the construction on the 3 rd and 4th floor of the suit property was old and they were joined in their aforesaid plea by Respondent No. 3.

42. Another ground for holding that the Respondents No. 1 and 2 are not entitled to the aforesaid relief is that the appellants have failed to prove their locus-standi to seek the aforesaid relief. It is significant to note in this regard that although the immediate trigger for filing of the suit by Respondents no. 1 and 2 was that the Appellants had started raising unauthorized construction in the common portion of the ground floor of the suit property in RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

the month of February, 2014, however, the relief of mandatory injunction has been prayed for by them seeking demolition of construction on the 3rd floor and 4th floor of the suit property, which admittedly was under exclusive ownership and possession of the Appellants, only on the ground that no sanction was obtained by the appellants from the Respondent no. 3 before raising the aforesaid construction. Although in their complaints to Respondent No. 3, Respondents No. 1 and 2 have tried to take a plea that the structure of the building was more than 200 years old and hence the Walls of the suit property would not be able to bear the load of 3rd and 4th floor, however, the Respondents No. 1 and 2 have failed to lead any evidence on the aforesaid aspect. Admittedly, no report of any structural engineer in this regard has been filed or proved by the Respondents No. 1 and 2.

43. There is another reason for holding that the Respondents No. 1 and 2 are not entitled to the decree of mandatory injunction directing demolition of the alleged unauthorized construction on the 3rd and 4th floor of the suit property is that the appellants have failed to lead any evidence to the effect that the alleged construction on the 3rd and 4th floor of the suit property was unauthorized for want of any sanctioned layout plan, in as much as, they have failed to prove that any sanction of the layout plan was required under the relevant bye-laws for raising construction on 3rd and 4th floor of the suit property.

44. It is further significant to note that the relief of injunction is an equitable relief and a person, who seeks the relief of injunction, must come to the Court with clean hands without undue delay. In the case in hand, admittedly, even as per the averments made in the plaint, the alleged unauthorized RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

construction on the 3rd and 4th floor of the suit property was raised by the Appellants way back in the month of February 2013, however, the Respondent No. 1 and 2 had chosen to file the suit against the appellants only in the month of February 2014 i.e. after expiry of almost one year after the entire construction had already been completed by the Appellants. As has already been observed hereinabove, the immediate trigger for filing of the aforesaid suit, as mentioned in the plaint by Respondents No. 1 and 2, was that the Appellants in the month of February 2014 had started raising construction in the common portion on the ground floor of the suit property.

45. Thus, it is apparent that it was only in order to pressurize the Appellants to stop indulging in the aforesaid activity of raising construction in the common portion of the suit property that the Respondent seems to have prayed for the relief of mandatory injunction seeking demolition of unauthorized construction on 3rd and 4th floor of the suit property. The Respondents No. 1 and 2, thus, in my considered opinion, have rendered themselves dis-entitled to the aforesaid equitable relief of mandatory injunction by their aforesaid conduct, in approaching the Court for the relief of mandatory injunction seeking demolition of construction raised almost a year ago, after they felt instigated by the acts of construction in the common portion of the ground floor, in terms of Section 41 (I) of the Specific Relief Act, 1963.

46. In view of the aforesaid discussion, in my considered opinion, the impugned judgment and decree dated 20.12.2021 is liable to be set aside to the extent the suit of Respondents No. 1 and 2 for mandatory injunction directing demolition of alleged RCA DJ No.10/2022 Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.

unauthorized construction on the 3rd and 4th floor of the suit property was decreed by Ld. Trial Court against the appellants and Respondent No. 3. So far as the decree of permanent injunction restraining the Appellants from raising any unauthorized construction in the common passage/Courtyard in the front side portion of the ground floor of the suit property as shown in red colour in the site plan Ex. PW-1/8 is concerned, I do not find any infirmity in the aforesaid decree.

47. The present appeal is thus partly allowed. Decree dated 20.12.2021 passed by Ld. Additional Senior Civil Judge (Central) Delhi in CS No. 99326/2016 is hereby modified to the extent that the suit of the Respondents no. 1 and 2/plaintiffs for a decree of mandatory injunction against the Appellants and Respondent No. 3, directing them to remove/demolish the illegal and unauthorized construction raised on the 3 rd and 4th floor of the suit property, as shown in blue colour in the site plan Ex. PW1/8, is dismissed. However, the appellants are hereby permanently restrained from raising illegal and unauthorized construction in the common place and passage/open Courtyard shown in red colour in the site plan Ex. PW-1/8 in respect of property bearing No. 1082 - 1084, Gali Raja Aggarsen, Bazar Sitaram, Delhi- 110006. In the peculiar facts and circumstances of the present case, parties are left to bear their own costs both in the suit as well as the Appeal.

48. Decree sheet be prepared accordingly.

Announced in the open Court on this 10th day of August, 2023. This judgment consists of 22 number of signed pages. ARUN Digitally by ARUN signed KUMAR KUMAR GARG Date: 2023.08.10 GARG 18:00:45 +05'30' (ARUN KUMAR GARG) Additional District Judge-05, Central District, Tis Hazari Courts, Delhi.

Heera Mani Sharma & Anr. v. Vidya Ram Sharma & Anr.