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Delhi District Court

Smt. Naresha Chauhan vs . Sh. Ritesh Chopra & Ors. on 2 April, 2016

                                Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

                  IN THE COURT OF  CIVIL JUDGE­02 (SOUTH) 
                     SAKET COURTS COMPLEX, NEW DELHI

In the matter of :
CS No. 232/13

       Smt. Naresha Chauhan
       W/o Sh. Onkar Singh Chauhan,
       R/o D­8, GF, Panchsheel Enclave, 
       New Delhi­110017                                              ... Plaintiff

                                       Versus


   1. Sh. Ritesh Chopra
      R/o A­1/62, 
      Panchsheel Enclave,
      New Delhi­110017

   2. Municipal Corporation of Delhi
      Through, Dy­Commissioner,
      Green Park, Near Uphaar Cinema,
      New Delhi

   3. Commissioner of Police
      Delhi Police,
      Police Headquarters,
      New Delhi                                                    ... Defendants


       Date of Institution                               :                07.04.2012
       Date of Reserving Judgment                        :               02.04.2016
       Date of Decision                                  :               02.04.2016
       Final Decision                                    :               Dismissed


                           J U D G M E N T

(on suit for Permanent and Mandatory Injunction)

1. This suit was filed by the plaintiff for permanent and mandatory injunction against the defendants.

CS No. 232/13 Page 1 of 8

Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

2. Briefly stated, case of the plaintiff is that the plaintiff is absolute owner of 100% land beneath the building situated at Plot No.D­8, Panchsheel Enclave, New Delhi - 110017 and in possession of entire ground floor vide gift deed dated 01.11.2007. That building plan was sanctioned in the year 1978 only for one and half floors and accordingly the said building was constructed. That in 1999 onwards two illegal floors were added to the existing building. That on 19.05.2007 a MOU was signed between the plaintiff and her mother Smt. Sushma Chawla. That on 25.11.2010 & 28.01.2011, mother of plaintiff Smt. Sushma Chawla sold the second floor & first floor to the defendant no.1 respectively. That the defendant no.1 tried to purchase the land beneath the building situated at plot no.D­8, Panchsheel Enclave which belongs to plaintiff in order to construct the basement. That defendant no.1 and his employees have been threatening and harassing the plaintiff by different modes and means since he purchased the property in question. That defendant no.1 has dug up the floor of the first floor in the garb of some renovation work and keeps the water taps open. That plaintiff has filed complaints to the local police, MCD against the defendant but all in vain. That plaintiff was shocked to receive a copy of the plaint and to know that the defendant no.1 had filed a false and frivolous case which is pending for adjudication. Hence, the present suit is filed by the plaintiff seeking following reliefs:

(a) Decree of mandatory and permanent injunction in favour of plaintiff and against the defendant no.1, his agents, employees, survivors, executors, attorneys, assigns and any other person acting for and on behalf of defendant no.1 not to dispossess the plaintiff from her lawful possession of flat.

CS No. 232/13 Page 2 of 8

Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

(b) Decree of mandatory and permanent injunction in favour of plaintiff and against the defendant no.1, his agents, employees, survivors, executors, attorneys, assigns and any other person acting for and on behalf of defendant no.1 not to interfere in the peaceful possession of the plaintiff with respect to her flat.

(c) Decree of mandatory and permanent injunction in favour of plaintiff and against the defendant no.1, his agents, employees, survivors, executors, attorneys, assigns and any other person acting for and on behalf of defendant no.1 to repair the damaged floor of first floor.

(d) Decree of mandatory and permanent injunction in favour of plaintiff and against the defendant no.1, his agents, employees, survivors, executors, attorneys, assigns and any other person acting for and on behalf of defendant no.1 not to remove any load bearing wall and repair the load bearing walls which have been removed.

(e) Decree of mandatory and permanent injunction in favour of plaintiff and against the defendant no.1, his agents, employees, survivors, executors, attorneys, assigns and any other person acting for and on behalf of defendant no.1 not to keep the water tap open till the floor of the first floor is repaired to avoid the seepage of water in the flat of the plaintiff.

3. Upon service of summons of the present suit, defendants appeared but only defendant no.1 filed his written statement (WS) denying the allegations as contained in the plaint. That the present suit is counter blast to contempt proceedings sought to be initiated by defendant no.1 in this Hon'ble Court. That the plaintiff is trying to extort the money by filing the present suit. That the plaintiff has no cause of action to file the present suit and the allegations made against the defendant no.1 are without any basis. Thus, on the above mentioned grounds, defendant prayed that suit of the plaintiff be dismissed.

CS No. 232/13 Page 3 of 8

Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

4. On the basis of the pleadings of the parties, following issues were framed vide order dated 03.08.2015:­

1. Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause (a)? OPP

2. Whether the plaintiff is entitled to the decree of permanent injunction as prayed in clause (b)? OPP

3. Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause (c)? OPP

4. Whether the plaintiff is entitled to decree of permanent & mandatory injunction as prayed in clause (d)? OPP

5. Whether the plaintiff is entitled to decree of mandatory & permanent injunction as prayed in clause (e)? OPP

6. Relief .

5. Plaintiff failed to lead any evidence despite given several opportunities, hence, PE was closed vide order dated 29.10.2015.

Defendant no.1 on the other hand, examined himself as DW­1 by tendering his evidence by way of an affidavit Ex.DW­1/A. He also relied upon document Mark A to Mark D, Ex.DW­1/2 and Ex.DW­1/4 to Ex.DW­1/6 and thereafter defendant closed his evidence.

6. I have heard the contentions of both the sides and also gone through the record carefully. My issue­wise findings are as under:

CS No. 232/13 Page 4 of 8

Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

ISSUES NO.1 & 2

Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause (a)? OPP & Whether the plaintiff is entitled to the decree of permanent injunction as prayed in clause (b)? OPP

7. Both these issues are taken up together being interconnected for the purposes of discussion and findings. The onus to prove both these issues was upon the plaintiff. However, neither plaintiff stepped into the witness box nor any evidence has been adduced by the plaintiff for proving her case. Plaintiff has failed to demonstrate the manner in which she is apprehending her dispossession from the portion under her occupation by the defendants. Apart from the bare averments made by the plaintiff in the plaint, there is absolutely nothing on record to support the said averments of the plaintiff. Ld. counsel for plaintiff argued that defendant in his cross examination has admitted that he has purchased the property for selling further after rebuilding the structure and it will be only profitable for him to sell 1st and 2nd floor if the entire building is demolished and reconstructed so it shows that defendants are trying to pressurize the plaintiff for vacating the ground floor.

This court does not agree with the point of argument put forth by Ld. counsel that having an intention to earn profit by selling does not mean that defendant is trying to dispossess the plaintiff as it has already been observed above, that no evidence on the part of plaintiff has been led to prove his apprehension from being dispossessed forcefully. In the absence of any evidence, the allegations made by the plaintiff could not be proved and the onus of proof remained undischarged. Hence, these issues are decided CS No. 232/13 Page 5 of 8 Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

in favour of the defendants and against the plaintiff.

ISSUE NO.3 Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause (c)? OPP

8. The onus to prove this issue was upon the plaintiff.

However, neither plaintiff stepped into the witness box nor any evidence has been adduced by the plaintiff for proving her case. Apart from the bare averments made by the plaintiff in the plaint, there is absolutely nothing on record to support the said averments of the plaintiff. During the cross examination of DW­1, it has been categorically stated by the witness that he has put the tiles where the flooring was removed, meaning thereby the floor has already been repaired. No contrary suggestion has been put by the plaintiff to the defendant witness in this respect. In the absence of any evidence, the allegations made by the plaintiff could not be proved and the onus of proof remained undischarged. Hence, this issue is also decided in favour of the defendants and against the plaintiff.

ISSUE NO. 4

Whether the plaintiff is entitled to decree of permanent & mandatory injunction as prayed in clause (d)? OPP

9. The onus to prove this issue was upon the plaintiff.

However, neither plaintiff stepped into the witness box nor any evidence has been adduced by the plaintiff for proving her case. Apart from the bare averments made by the plaintiff in the plaint, there is absolutely nothing on record to support the said averments of the plaintiff. During the cross examination of DW­1, CS No. 232/13 Page 6 of 8 Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

it has been categorically stated by the witness that no load bearing wall has been touched upon. No contrary suggestion has been put by the plaintiff to the defendant witness in this respect. Plaintiff could not show the comparison of earlier structure and present structure of the building which can fortify the claim of plaintiff. In the absence of any evidence, the allegations made by the plaintiff could not be proved and the onus of proof remained undischarged. Hence, this issue is also decided in favour of the defendants and against the plaintiff.

ISSUE NO. 5

Whether the plaintiff is entitled to decree of mandatory & permanent injunction as prayed in clause (e)? OPP

10. The onus to prove this issue was upon the plaintiff.

However, neither plaintiff stepped into the witness box nor any evidence has been adduced by the plaintiff for proving her case. Apart from the bare averments made by the plaintiff in the plaint, there is absolutely nothing on record to support the said averments of the plaintiff. In the absence of any evidence, the allegations made by the plaintiff could not be proved and the onus of proof remained undischarged. Moreover, such injunction which requires constant monitoring/super vision by the court cannot be granted. Hence, this issue is also decided in favour of the defendants and against the plaintiff.

Relief:

11. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.

CS No. 232/13 Page 7 of 8

Smt. Naresha Chauhan Vs. Sh. Ritesh Chopra & Ors.

12. File be consigned to the record room after due compliance.

Announced in the open Court
on 2nd April,  2016                                                                      (Vishal Pahuja) 
                                                                       CJ­02 (South)/Saket Courts
                                                                                   New Delhi/02.04.2016




CS No. 232/13                                                                             Page 8 of 8