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Delhi District Court

Sh. Chander Prakash vs Sh. Nitin Sharma on 19 September, 2019

           In the Court of Ms. Vineeta Goyal: Additional District Judge
                      (South District) Saket Court Complex, New Delhi.
MCA No. : 20/2019


In the matter of :­


Sh. Chander Prakash
S/o Late (Sh.) Ram Chander Sharma
R/o B­116, Front Side
Malviya Nagar
Delhi­110017                                                      ....Appellant

                                          Versus

1. Sh. Nitin Sharma
S/o Late (Sh.) Prem Kumar Sharma
R/o B­116, First Floor, Back side
Malviya Nagar
New Delhi

2. The Commissioner
South Delhi Municipal Corporation
Dr. S.P.M. Civic Centre, Minto Road
New Delhi­110002                                                  .... Respondents


           Date of institution                 : 11.06.2019
           Date of Judgment                    : 19.09.2019

Appearance: Sh. M.N. Siddiqui, Sh. Virender Kasana and Ms. Akansha
            Khurana, counsels for appellants.
            Sh. Bipin Bihari Singh, counsel for respondent no. 1.
            Sh. Sahil A. Garg and Sh. Shikhar Singhal, counsel for
            respondent no. 2.

JUDGMENT

1. This is an appeal under Order XLIII (1) (r) of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) against the order dated 07.06.2019 passed by the Court of Ld. SCJ­cum­RC (South) Saket Courts, MCA No: 20/19 Page no. 1 of 8 Chander Prakash v. Nitin Sharma & ors New Delhi in suit no. 528/2019 titled Nitin Sharma vs. Chander Prakash & ors filed by appellant namely Chander Prakash against respondents namely Nitin Sharma and Commissioner, SDMC.

2. The appellant is defendant no. 1 and respondent no. 1 herein is the plaintiff and respondent no. 2 is SDMC (defendant no. 3) in the above­mentioned suit which is pending before the Court of Ld. SCJ­cum­ RC, South.

3. Ld. Counsel for the appellant argued that appellant is resident, in occupation and possession being the owner of property no. B­ 116, 1st floor, front side, Malviya Nagar, New Delhi and prior to him his mother Smt. Krishna Devi was the owner of entire land on which the property in question is built up by virtue of L & DO letter no. L&DO/MO/PS­1/7/12 dated 18.02.1967. The appellant/ defendant no. 1 is residing in the same for the last more than 25 years. The respondent no. 1/ plaintiff filed a suit for perpetual injunction, mandatory injunction and damages against the appellant herein before the Court of Ld. SCJ­cum­RC wherein respondent no. 1/ plaintiff has falsely submitted that defendant no. 1/appellant and defendant no. 2 are raising illegal and unauthorized construction on the terrace of third floor of property bearing no. B­116, Malviya Nagar. Further, respondent no. 1 has also falsely submitted that water tank installed on the mumpty has been demolished thereby rendering with no water supply. The respondent no. 1/ plaintiff twisted the facts submitting that while carrying out the alleged construction, the appellant/ defendant no. 1 has forcibly removed the water tanks of the plaintiff from the terrace, thus causing inconvenience to him and also depriving him of the basic amenity of water, had obtained an ex­parte injunction.

MCA No: 20/19 Page no. 2 of 8 Chander Prakash v. Nitin Sharma & ors

4. It is next argued that there is no construction being carried out at the suit property by the appellant/ defendant no. 1. The water tank of the respondent no. 1/ plaintiff was never installed on the terrace of suit property as he is resident of backside of building.

5. Ld. Counsel further argued that building is divided into parts i.e. front side and back side. The appellant/ defendant no. 1 is resident of front side of building and plaintiff/ respondent no. 1 is resident of back side of building. Only the water tanks of front side residents are installed on the terrace that too, over the roof of staircase (mumpty) and all water tanks of back­side residents are installed inside their homes individually and not at the terrace. The respondent no. 1/ plaintiff is occupying the first floor in the rear/ back of the aforesaid property. Smt. Monika Sharma, back­side resident and Sh. Ramesh Sharma, front side residents (occupants) in their respective letters have specifically mentioned that water tanks of all back­side residents are inside their respective houses and that of front side residents are installed on the terrace and this type of water tank arrangement has been the same since last more than 25 years and in fact the water meters are also installed inside their respective houses. During the course of arguments, Ld. Counsel for the appellant emphasized on the photographs on record and argued that it is evident from the photographs that no construction is being carried out on the terrace of the property in question and water tanks installed on the mumpty are intact and these photographs are genuine photographs which got proved from the photographs filed by the local commissioner who visited the property. It is further argued that during the course of pendency of present appeal vide order dated 20.06.2009, to ascertain the factual position as it exists on the spot regarding the source of availability of water to respondent no. 1/ plaintiff, local commissioner was appointed MCA No: 20/19 Page no. 3 of 8 Chander Prakash v. Nitin Sharma & ors to inspect the suit property who in her report has categorically stated that there was one water tank installed in one bathroom installed with bedroom no. 1; that there were some plastic buckets and drums filled with water kept inside another bathroom attached with bedroom no. 2; that one iron angle was fixed in bathroom attached with bedroom no.2 and one water connection point has seen on the wall near the said iron angle. It is argued that Local Commissioner could not find any traces and evidence to show that independent water storage facility on the terrace of suit premises ever existed. Local commissioner has also mentioned in her report that she met Ms. Monika Sharma, occupant of ground floor (rear portion) who stated that there was no water tank installed of any of the floor including first floor (premises in question) on the terrace of the third floor and also that water storage facility is available inside their respective floors.

6. It is next argued that plaintiff/ respondent no. 1 has twisted the facts and by misrepresenting/ alleging illegal construction on the terrace and removal of overhead tanks placed on the terrace of third floor has obtained an ex­parte injunction. There are no illegal constructions being undertaken on the terrace of third floor and there are no removal of overhead tanks. It is also argued that great prejudice will be caused to the appellant if plaintiff/ respondent no. 1 succeed in his nefarious design of trespassing into the terrace of property which exclusively belongs to the appellant and the relief granted by way of impugned order amount to decree of the suit without giving an opportunity to the appellant to defend the case.

7. It is next argued by Ld. Counsel for the appellant/ defendant no. 1 that impugned order passed by Ld. Trial Court is against the law MCA No: 20/19 Page no. 4 of 8 Chander Prakash v. Nitin Sharma & ors and facts. The Ld. Trial Court has failed to appreciate that respondent no. 1/ plaintiff has failed to place on record any cogent material in support of his claim. The respondent no. 1/ plaintiff has shown the construction which is being carried out on the adjacent property as being carried out on the property of the appellant and has managed to obtain the impugned order by fraud. There was no report of illegal construction being carried out by the appellant on record. It is further contended that right of the appellant will render infructuous if the present appeal is not allowed and respondent no. 1/ plaintiff is not stopped from installing his water tanks on the property of the appellant.

8. Per contra, Ld. Counsel for the respondent no. 1 / plaintiff argued that there is no infirmity in the impugned order passed by Ld. Trial Court. Sh. Prem Sharma, the predecessor in interest of the plaintiff had died on 17.04.2019, thereafter, the plaintiff became owner in possession of back portion of first floor on left part of property. All occupants of the suit property have terrace approach right above the third floors of their respective portions and they have/ had installed their overhead water tanks and TV antenna on the terrace of third floor. Overhead water tank and TV antenna of plaintiff were installed at the terrace of third floor of left portion of the suit property. It is further argued that a few days ago, appellant has started raising illegal construction at the terrace of third floor at the left portion of the suit property by erecting some concrete construction and at the time of raising illegal and unauthorized construction above the terrace of third floor of the suit property, the appellant had removed the water tank of plaintiff and destroyed it and due to which the plaintiff is facing hardship in getting the basic amenity of water from the water tank.

MCA No: 20/19 Page no. 5 of 8 Chander Prakash v. Nitin Sharma & ors

9. I have heard arguments advanced by Ld. Counsel for the parties and gone through the record.

10. The Ld. Trial Court in the impugned order has directed for construction of water tanks for the respondent no. 1/ plaintiff with the aid and assistance of South Delhi Municipal Corporation. The appellant/ defendant no. 1 has disputed the very existence of water tanks of the plaintiff/ respondent no. 1 in the suit property and it is vehemently argued by the appellant/ defendant no. 1 that by claiming interim relief under Order XXXIX Rule 1 & 2 CPC, the plaintiff/ respondent no. 1 is creating substantive rights which never existed. On the other hand, the plaintiff/ respondent no. 1 vehemently stressed upon the point in para no. 13 of the plaint that appellant/ defendant no. 1 has started raising construction activities few days back which means that the activities of raising illegal construction has been started in the month of June, 2019 itself. It was in the process of these activities, the alleged water tanks belonging to the plaintiff/ respondent no. 1 have been demolished causing hardship for which relief is sought and has been granted by Ld. Trial Court on the second date of hearing without hearing appellant/ defendant no. 1. It transpires that Ld. Vacation Judge has already stayed the operation of impugned order vide order dated 11.06.2019 to the extent of installation of water tank. It is worth mentioning that during the pendency of the appeal, this Court appointed Local Commissioner who had visited the premises on 20.04.2019 and reported that arrangement of water storage of plaintiff/ respondent no. 1 was confined to residential premises/ areas occupied by him. It is also relevant to mention here that Local Commissioner at the time of visit also made inquiries from other residents who also did not support the claim of plaintiff/ respondent no. 1 of having in existence any water storage facility on the terrace serving to his portion MCA No: 20/19 Page no. 6 of 8 Chander Prakash v. Nitin Sharma & ors at first floor (rear portion). In fact, one of the other residents of rear portion, ground floor namely Ms. Monika Sharma stated that there was no such water tank facility installed at the terrace of demised premises and the water storage facility was available inside the house itself. Even otherwise, it is a common knowledge, if there was any water storage tank at the terrace, it would be connected with corresponding pipes taking the water of water tank at the terrace of first floor portion of plaintiff/ respondent no. 1. The network of pipes from terrace to first floor cannot be dismantled within few days and is a matter of trial and evidence is required to be led.

11. It need to be understood that purpose of Order XXXIX Rule 1 & 2 CPC is to protect the interest of the plaintiff/ respondent no. 1 during the pendency of trial if the same is causing irreparable loss. However, these provisions cannot be used for creation of any substantive right which never existed and it is obligatory upon the plaintiff/ respondent no. 1 to successfully show that the infringing right ever existed. The onus of existence of such right is heavily upon the plaintiff/ respondent no. 1 and if such existence of right is doubtful then any protection by the arm of law granted to such plaintiff/ respondent no. 1 would amount to creating a substantive right which never existed. In these circumstances, the impugned order dated 07.06.2019 with respect to the direction of installation of water tank passed by Ld. Trial Court stands vacated.

12. So far as raising of unauthorized/ illegal construction in the suit property is concerned, during course of proceedings, Ld. Counsel for appellant/ defendant no. 1 has submitted that he is not raising any unauthorized construction in the suit property, in these premises, the appellant/ defendant no. 1 is restrained from raising any unauthorized MCA No: 20/19 Page no. 7 of 8 Chander Prakash v. Nitin Sharma & ors construction in the suit property till the pendency of the suit or decision of application under Order XXXIX Rule 1 & 2 CPC by the Ld. Trial Court.

13. In view of above discussion, the present appeal stands disposed off. Nothing stated herein above shall tantamount to be my expression on merits of the case.

File be consigned to Record Room. TCR be sent back alongwith copy of judgment.

Pronounced in the Open Court on 19.09.2019 (Vineeta Goyal) Additional District Judge South District: Saket: New Delhi MCA No: 20/19 Page no. 8 of 8 Chander Prakash v. Nitin Sharma & ors