Delhi District Court
M/S. Sansum Computech Pvt. Ltd vs Vikas Cine Mall on 28 September, 2015
IN THE COURT OF SH. RAVINDER SINGH
ADDITIONAL DISTRICT JUDGE OF SHAHDARA DISTRICT
AT KARKARDOOMA COURTS: DELHI.
MCA No.20/2014
Unique I.D No. 02402C0399312014
M/s. Sansum Computech Pvt. Ltd.
having its registered office at
B11, Mohan Garden Extn.,
Uttam Nagar, New Delhi110059.
Through its director
Sh. Parveen Singh
............... Appellant
Versus
1. Vikas Cine Mall
Plot no. 813/1, GT Road,
Shahdara, New Delhi110032.
Through its manager
2. M/s. Vikas Promoters (P) Ltd.
34/1, East Punjabi Bagh,
New Delhi110026.
3. Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, New Delhi.
4. East Delhi Municipal Corporation
Through its Commissioner
Civic Centre, New Delhi110002.
MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 1 of 10
5. The SHO
Police Station Shahdara,
Delhi110032.
........ Respondents
Date of Institution : 09/12/2014
Order reserved on : 26/09/2015
Order passed on : 28/09/2015
Appeal for setting aside the order dated 13/11/2014 passed in CS no.
394/2014 whereby application under Order XXXIX Rule 1 & 2 CPC
was dismissed.
JUDGMENT
This is an appeal filed by M/s. Sansum Computech Pvt. Ltd. (plaintiff in suit) for setting aside the order dated 13/11/2014 (for short 'the impugned order') passed in Suit bearing no. 349/2014 titled as 'M/s. Sansum Computech Pvt. Ltd. Vs. Vikas Cine Mall and Ors.' by Ld. JSCC/ASCJ/GJ (Shahdara), Karkardooma, Delhi, whereby Ld. Trial court dismissed the application of plaintiff/appellant under Order XXXIX Rule 1 & 2 CPC.
2. For the sake of convenience, parties are referred as per their ranks before the Trial Court.
MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 2 of 10
3. The facts set out by the plaintiff in its plaint are that the Sh. Parveen Singh being director of plaintiff company filed the suit alleging that the land plot bearing no. 813/1 (Plot Cinema) GT Road, Shahdara, Delhi was alloted to defendant no. 2 by Govt. of NCT for construction of shoppingcum commercial mall. Plaintiff took a commercial space i.e. Unit no. G40, Ground Floor in the said mall of defendant no. 1 vide lease deed dated 19/03/2013 from one Sh. Ashok Kumar Arora and Sh. Vikas Arora on a monthly rent of Rs.5,25,000/ per month. Plaintiff is running its business of wine shop from its shop. It is pleaded that plaintiff come to know that defendants no.1 & 2 in collusion with defendant no. 3 to 5 are planing to raise additional construction by removing the intervening wall between commercial unit no. G39 and setback area of ground floor without obtaining any permission from competent authorities. The said commercial unit G39 is adjacent to commercial unit of plaintiff. Plaintiff met the management of defendant no. 1 on 17/09/2014 and requested the authority not to raise unauthorized and illegal construction by dangerously removing the intervening MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 3 of 10 partition wall of unit G39 and setback area. The authorities of defendant no.1 remained adamant and on 18/09/2014 sent the labour to start the work. It is also pleaded that objection was raised and a 100 number call was also made. PCR Van came on spot and stopped the construction. Defendants no. 1 and 2 made further attempt on 19/09/2014 so plaintiff again met the officials of defendants no.1 and 2 with request to restore the property G39 in original position but in vain. So on 19/03/2014 plaintiff made written complaint to Commissioner of MCD (Vigilance), Hon'ble L.G and Director (Building) of defendant no. 3 but they all failed to pay any heed to its complaint. Hence, plaintiff filed instant suit for mandatory injunction thereby seeking direction against defendants no. 1 and 2 to repair the damaged caused in intervening wall between commercial unit G39 and set back area and also sought direction against defendants no. 1 and 2 thereby restraining them to support or cooperate defendants no. 1 and 2 in removing /demolishing the intervening wall of commercial unit G39 and set back area. The plaint is accompanied with plaintiff's application under Order XXXIX Rule 1 & 2 CPC wherein it prayed for following relief: MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 4 of 10 "(i) To pass an exparte adinterim injunction in favour of the plaintiff / applicant and against the defendant no. 1 and 2 thereby restraining the defendants no. 1 and 2, their directors, managers, attorneys, assignees, representatives, agents or any other person action on their behalf, from demolishing/ removing the back side wall of shop no. 39 (suit property) situated at Ground Floor Vikas Cine Mall, Plot no. 813/1, GT Road, Shahdara, Delhi110032 and to illegally and unauthorisedly increase the space by merging the space from setback area of said mail, till final disposal of the accompanying suit."
4. Defendants no. 1 & 2 contested the suit by filing common written statement stating therein that they are in MOU/agreement with the persons in respect of commercial unit no. G39 who have plans for opening a liquor shop, so plaintiff filed this false and frivolous suit with sole intention to dissuade the authority to stop the opening of liquor shop on the ground of unauthorised construction. Plaintiff has no locus standi to file the suit as it has no personal interest in property no. G39 which is in their occupation hence there is no infringement of legal right of plaintiff. On merits, defendants no. 1 and 2 stated that the entire building is constructed in columns and beam and the wall in between the coloumns are only the parda wall and removal and erection of parda wall MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 5 of 10 does not amount to unauthorize construction. Further opening and closing of door are permissible in term of clause 6.4.1 of unified building byelaws. Further defendants no. 1 and 2 denied any collusion with defendant no. 3 to 5 as they vide their letter dated 18/09/2014 duly intimated defendant no. 4 for effecting the repairs and renovations in term of clause 6.4.1 of Building Bye laws. Accordingly, defendants no. 1 and 2 prayed for dismissal of the suit with cost.
5. Defendant no. 4 instead of filing written statement filed its status report stating therein that "the property in question i.e. shop no. G39 of Property no. 813/1, G.T. Road, Shahdara, Delhi was inspected and found that one non load bearing partition wall has been removed and another partition wall has been erected. Further, two steel rolling shutters have been fixed on the back side of shop no. G39, which is permissible as per provisions of clause no. 6.4.1 of BBL 1983."
6. On the aforesaid pleadings, Ld. Trial Court came to the conclusion that MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 6 of 10 "In this regard there exists no primafacie case in favour of the plaintiff in as much as the EDMC has categorically stated that the suit property has been inspected and it has been found that non load bearing partition wall has been removed and entire partition wall has been erected. Further, two steel rolling shutters have been fixed on the back side of shop no. G39, which is permissible as per provisions of clause no. 6.4.1 of BBL 1989 and have also filed photographs on record and the construction of the defendant no. 1 and 2 is in confirmity with the building bylaws. Also there is nothing on record as yet to substantiate primafacie case of the plaintiff that such opening of shutters by removing back side of wall will have deleterious impact on the structure of the building. Thus, balance of convenience also does not lie in favour of the plaintiff. It is also not proved that if the prayer is not allowed, irreparable loss and injury would be caused to the plaintiff. It is also important to state that an interim injunction has been sought to prevent the demolition /removal of the back side of the suit property which has already been done."
7. I have heard the arguments of Ld. Counsel for the appellant/plaintiff and respondents/defendants and perused the impugned order, grounds of appeal and material available on record.
8. It is admitted case of plaintiff that plot bearing no. 813/1, G.T. Road, Shahdara, Delhi was alloted to defendant no.2 by Govt. of NCT for purpose of construction of shoppingcumcommercial mall. It is also admitted case of plaintiff that it is lessee in one of commercial unit G40 MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 7 of 10 of Ground Floor of said mall of defendant no.2. It is also not disputed that the other commercial unit of ground floor i.e. G39 of said mall does not belong or in any manner concern with the plaintiff.
9. According to plaintiff, defendants no. 1 and 2 are planning to raise additional construction illegally and dangerously by removing the intervening wall between commercial unit no. G39 and set back area at ground floor without obtaining any permission from competent authority. It is admitted case of plaintiff that it made complaint to Commissioner of MCD (Vigilance) on 19/03/2014. The defendant no. 4 i.e. MCD filed the status report pertaining to the construction which defendants no. 1 and 2 is carrying out between intervening wall of commercial unit no. G39 and set back area at ground floor stating therein that the property in question G39 of Property no. 813/1, G.T. Road, Shahdara, Delhi was inspected and found that one non load bearing partition wall has been removed and another partition wall has been erected which is permissible under clause no. 6.4.1 of BBL. The defendant put the shutter after removing the non load bearing wall of his MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 8 of 10 commercial unit G39, which is not concerned in any manner to the commercial unit of the plaintiff no. G40. It is pertinent to mention that photographs on record suggest that plaintiff commercial unit G40 is also having a rolling shutter opens towards the set back area of ground floor of mall. It is also pertinent to mention that plaintiff has failed to point out how its right has been infringed by putting off rolling shutter by defendant in its own property i.e. commercial Unit no. G39, which is otherwise permissible under the provision of clause 6.4.1 of BBL of defendant no. 4.
10. In view of above discussion, I am of considered opinion that Ld. Trial court has rightly reached to the conclusion that the two steel rolling shutter fixed on the backside of the commercial unit no. G39 is permissible as per provisions of clause 6.4.1 of BBL hence there exists no prima facie case in favour of plaintiff. Further balance of convenience also does not lie in favour of the plaintiff who has failed to prove how he suffer irreparable loss if prayer under application is not allowed. MCA No.20/2014 M/s. Sansum Computech Pvt. Ltd. v. Vikas Cine Mall and ors. Page no. 9 of 10
11. In view of aforesaid discussion, I am of the considered opinion that Ld. Trial court has dealt all the grounds raised in the appeal in proper perspective and Ld. Trial court has passed impugned order after considering all the parameters into account while allowing the part prayer of application under Order XXXIX Rule 1 and 2 CPC. The impugned order does not suffer any infirmity & illegality. Accordingly, appeal is dismissed. Considering the facts of the case, no order as to costs.
12. Appeal file be consigned to record room. TCR be sent back to the court concerned with copy of this order.
Announced in the (RAVINDER SINGH)
open court Additional District Judge:
on 28/09/2015 Shahdara District:
Karkardooma, Delhi.
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