Delhi District Court
Surinder Singh Mahalwal vs Chand Prakash Ans on 29 August, 2023
IN THE COURT OF SH. SANTOSH KUMAR SINGH
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
(SOUTH DISTRICT), SAKET COURTS, NEW DELHI
CS SCJ 83532/2016
CNR No. DLST03-000536-2015
1. Surinder Singh Mahalwal
S/o. Late Sh. Meher Chand
2. Amit Mahalwal
S/o Sh. Surinder Singh Mahalwal
3. Reena Mahalwal
W/o Sh. Amit Mahalwal
All residents of:-
H. No. 59, Madangir Village, New Delhi-110062
....Plaintiffs
Versus
1. Chand Prakash
S/o Late Sh. Shish Ram
H. No. 60, Madangir Village,
New Delhi 110062
2. The Commissioner MCD
South Zone,
Green Park,
New Delhi
....Defendants
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
Date of Institution of the Suit : 21.08.2015
Date of Pronouncement of Judgment : 29.08.2023
CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 1/18
JUDGMENT
1. The present suit has been filed by the plaintiff for permanent and mandatory injunction.
2. Factual matrix are that the defendant no. 1 is the resident of H. No. 60, Madangir Village, New Delhi - 110062 as also the immediate neighbour of the plaintiff. Defendant no. 2 is the South Delhi Municipal Corporation which is a corporate body under Delhi Municipal Corporation Act. Defendant no. 1, in connivance with the defendant no. 2, has dug out the basement of abovesaid property (hereinafter referred to as suit property) illegally without obtaining sanction from defendant no. 2/concerned authority and without taking any steps towards security of surrounding houses and therefore, have put the life of the plaintiff and the other inhabitants of neighbouring houses in danger. Residence of plaintiff is adjacent to the suit property. Though the said unauthorized basement was booked by defendant no. 2 under DO No. 285/UC/B-11/SZ/2012 dated 03.09.2012 but no action was taken thereafter. The said basement is dangerous for H. No. 59, Madangir Village, New Delhi. The said unauthorized basement is a constant danger for the people residing there and any accident can take place due to rain, earthquake, etc. Because of this, cracks have been developed in the property of the plaintiff which was reported by print and visual media. During monsoon season, water accumulates in the basement of the said unfinished structure making it a place of breeding mosquitoes. The water has caused seepage in the building of the plaintiff and other adjoining buildings. The open CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 2/18 basement causes risk of vehicle falling into it or children getting struck while playing. The plaintiff made several complaints to defendant no. 2 on 28.02.2013 as well as to SHO, PS Ambedkar Nagar on 16.07.2015 (copy enclosed with it). Despite this, no action was taken by the defendants. Having faced the inaction of the defendants and finding no other efficacious remedy, the present suit has been filed.
3. Summons were directed to be issued to all the defendants and accordingly summons were served upon them.
Written Statement was filed by defendant no. 1.
4. In WS, the defendant no. 1 has taken preliminary objections that the plaintiff has not approached the court with clean hands as he himself has raised illegal and unauthorized construction by encroaching upon the portion of land comprising H. No. 60 belonging to him i.e. defendant no. 1 and other family members. Both the portions have been booked by the SDMC on the same day. Therefore, the plaintiff has no locus standi to file the suit. The present suit is a counter-blast to the suit filed by Sh. Subhas Mahalwal (brother of defendant no. 1) against the illegal and unauthorized construction raised by the plaintiff by encroaching upon the portion of land of H. No. 60. The present suit has been filed without cause of action. The plaintiff is guilty of suppression and concealment of material facts. That he is the owner and in possession of H. No. 60 and therefore, the suit for injunction is not maintainable against the true owner. It is submitted that the present suit is hit by Section 91 of CPC and as CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 3/18 such plaintiff has no locus standi. The plaintiff has not disclosed whether he alongwith his brother Sh. Rishi Prakash has constructed the basement on the land of Khasra No. 12 after getting the sanction plan from the MCD or they have constructed the same without any plan.
Status Report/Written Statement was filed by defendant no.
2.
5. Instead of filing the Written Statement, defendant no. 2/MCD has filed the Status Reports on 01.12.2015 and 05.07.2016. As per the Status Report dated 01.12.2015 wherein it is mentioned that in respect of House No. 59 (i.e. plaintiff's property), Madangir Village, New Delhi, the owner/occupier had carried out unauthorized construction in the shape of raising column at ground floor and action against the said unauthrozied construction was initiated under Section 343/344 of DMC Act and the same was booked vide File No. 284/UC/B-II/SZ/2012 dated 03.09.2012. However, owner/occupier of the suit property further raised unauthorized construction in the shape of ground floor to 3rd floor without obtaining Sanction Plan from the SDMC. Consequently, the same was booked vide File No. 662/UC/B-II/SZ/2015 dated 23.11.2015 in continuation to the earlier booking. The same is owned and occupied.
5.1 With respect to House No. 60 (i.e. defendant no. 1's property), Madangir Village, New Delhi, the owner/occupier had carried out unauthorized construction in the shape of basement CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 4/18 and shuttering at ground floor and without sanction plan from the competent authority and the same was booked vide File No. 285/UC/B-II/SZ/2012 dated 03.09.2012 under Section 343/344 of DMC Act.
5.2 As per the Second Status report dated 05.07.2015 in respect of Houses No. 59 and 60, Madangir Village, New Delhi, wherein it is mentioned that it was found on inspection that property consists of basement and raising columns at ground floor. However, no construction activity was found in progress. Further, matter was referred to the maintenance department.
REPLICATION
6. No replication has been filed by the plaintiff.
ISSUES
7. Upon completion of pleadings, following issues were framed :
"1. Whether the plaintiff has not appraoched the court with clean hands and has suppressed the material facts from the court?OPD1.
2. Whether the plaintiff has no locus standi to file the present suit? OPD1.
3. Whether the suit of the plaintiff is not maintainable in its present form? OPD1.CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 5/18
4. Whether the suit of the plaintiff is hit by the provisions of Section 91 CPC? OPD1.
5. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause (a) of the plaint? OPP
6. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer clause (b) of the plaint? OPP
7. Whether the plaintiff is entitlted to a decree of mandatory injunction as prayed for in prayer clause (c) of the plaint?OPP
8. Relief."
PLAINTIFF'S EVIDENCE:
8. In order to prove his case, the plaintiff examined himself as PW1/Sh. Surender Singh Mahalwal, PW2/Ms. Meenu Mahalwal, dauther-in-law of plaintiff, PW3/Sh. Dinesh Kumar (summoned witness), Delhi Fire Services and PW4/Ct. Satish, PS Ambedkar Nagar.
9. PW-1/Sh Surinder Singh has tendered his evidence as Ex.PW1/A relying upon the following documents i.e.
(a) Aadhar Cards of plaintiff, his wife, his son Sh. Amit Mahalwal and his daughter-in-law Smt. Reena as Ex.PW1/B(colly) (OSR).
(b) 16 coloured photographs as Mark-A(colly)(running from pg. 17 to 23).
CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 6/18(c) Copy of Complaint dated 28.02.2013, 22.07.2013 and 16.07.2015 as Mark-B(colly).
(d) Site Plan as Mark-C. This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
10. PW2/Ms. Reena Mahalwal has tendered her evidence by way of affidavit which was exhibited as Ex.PW2/B. This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
11. PW3/Sh. Dinesh Kumar was a summoned witness. He has brought the internet/computer generated copy of fire report details bearing no. 220200233 and the same was exhibited as Ex.PW3/A. This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
12. PW4/Ct. Satish, PS Ambedkar Nagar was a summoned witness. He has brought the roznamcha register as per which a call was received vide DD No. 33-A dated 16.07.2015 pertaining to digging of basement by neighbour at property bearing No. 59, Madangir. The copy of the same was exhibited as Ex.PW4/A(OSR).
This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 7/1813. PE was closed on 19.07.2022. Thereafter, the matter was listed for DE on 23.08.2022.
DEFENDANT'S EVIDENCE
14. In order to defend the case, the defendant/Sh. Chand Prakash has examined herself as the witness as DW1 who tendered her evidence as Ex.DW1/A. This witness was cross-examined by the Ld. Counsel for plaintiff and was discharged.
15. DE was closed on 22.02.2023 and thereafter, the matter was listed for final arguments.
FINAL ARGUMENTS:
16. Final arguments were addressed by Sh. Rishi Bhardwaj, Ld. Counsel for the plaintiff; Sh. R.B. Singh, Ld. Counsel for defendant no. 1 and Ms. Meenakshi, Ld. Counsel for defendant no. 2/SDMC.
FINDINGS:
Issue no. 1
17. I shall first deal with the issue no. 1 as under :-
"1. Whether the plaintiff has not appraoched the court with clean hands and has suppressed the material facts from the court?OPD1."CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 8/18
17.1 The onus to prove this issue is upon the defendant no. 1. It is a settled law that the relief of injunction is an equitable relief. He who seeks equity must do equity. Thus, conduct of the parties involved in the case, is a relevant fact in a suit for injunction. It has been alleged by the defendant no. 1 that the plaintiff has not approached the court with clean hands by suppressing/concealing the material facts.
17.2 The plaintiff has deposed that he is residing in H. No. 59, Madangir Village, New Delhi alongwith his family and defendant no. 1 is residing at H. No. 60 which is adjancent to his property. The defendant no. 1 has dug out basement of his property illegally without obtaining sanction from defendant no. 2/SDMC and without taking any steps towrads security of surrounding houses including his house. He had deposed that the said unauthorized basement of property of defendant no. 1 was booked by the defendant no. 2/MCD on 03.09.2012 vide booking No. 285/UC/B- II/SZ/2012 dated 03.09.2012.
17.3 On the other hand, defendant no. 1 has deposed that the plaintiff has himself raised illegal and unauthorized construction at the ground floor of his property i.e. House No. 59, Madangir Village, New Delhi and both the portions of plaintiff and defendant no. 1 i.e. Houses No. 59 and 60 were booked by SDMC on the same day i.e. 03.09.2012 vide Booking No. 284/UC/B-II/SZ/2012 and 285/UC/B- II/SZ/2012 dated 03.09.2012. He has further deposed that the plaintiff has not disclosed this fact in his pleadings that CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 9/18 he had carried out unauthorized construction at the ground floor of his property i.e. H. No. 59, Madangir Village, New Delhi by raising columns without obtaining sanction from MCD. Whereas the plaintiff has only stated in his plaint that the property of defendant no. 1 i.e. H. No. 60, Madangir Village was booked on 03.09.2012 by the SDMC/defendant no. 2 for illegal and unauthorized construction of basement at the said property. It is deposed that this fact has been concealed by the plaintiff in his plant and even in his evidence by not stating the true and correct facts.
17.4 The defendant no. 2/SDMC has filed its Status Report dated 02.12.2015 stating that both the properties of plaintiff and defendant no. 1 were booked vide Booking No. 284/UC/B-II/SZ/2012 and 285/UC/B-II/SZ/2012 dated 03.09.2012 under Section 343/344 of DMC Act and further, the property of plaintiff i.e. H. No. 59, Madangir Village was further booked vide File No. 662/UC/B-II/SZ/2015 dated 23.11.2015 in continuation of earlier booking.
17.5 The Hon'ble Apex Court in case titled as 'Ramjas Foundation & Anr. Vs. Union of India & Ors.' [2010 (14) SCC 38] has held as under that:
"(i) The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 223 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 10/18 principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case.
(ii) In Dalglish v. Jarvie, Mac & G at p. 238, Lord Langdale and Rolfe, B. observe: (ER p. 89) "It is the duty of a party asking for an injunction to bring under the notice of the court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward."
17.6 By applying this law in this instant case, the burden of prove lies upon defendant no. 1 to prove the fact that plaintiff has approached the court with unclean hands by suppressing/concealing material facts. It is the duty of defendant no. 1 to disclose as to what material facts have been concealed by the plaintiff. In evidence and even in pleadings, the defendant no. 1 has deposed that the plaintiff has not disclosed the fact that even his property i.e. Property no. 59, Madangir Village was also booked twice i.e. 03.09.2012 and 23.11.2015 under Section 343/344 of DMC Act for demolition for constructing unauthorized construction for not obtaining sanction plan/ permission from the defendant no. 2/SDMC. However, defendant no. 1 has made it clear in his pleadings that the plaintiff has concealed this fact. Even in evidence, the plaintiff did not admit the fact of illegal construction. However, when he was cross- examined in detail then he admitted that he did not have any sanction plan in respect of his property.
CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 11/1817.7 Therefore, in view of the above observation, it is clear that the plaintiff has concealed and suppressed the material facts from the court. Hence, it can be said that the plaintiff has not approached the court with clean hands. Consequently, this issue is decided against the plaintiff and in favour of the defendant no.
1. Issues No. 2, 3 and 4
18. I shall now deal with issues no. 2, 3 and 4 together being interconnected as under :-
"2. Whether the plaintiff has no locus standi to file the present suit? OPD1.
3. Whether the suit of the plaintiff is not maintainable in its present form? OPD1.
4. Whether the suit of the plaintiff is hit by the provisions of Section 91 CPC? OPD1."
18.1 The onus to prove this issue is upon the defendant no. 1. Defendant no. 1 has deposed that the present suit filed by the plaintiff is a counter-blast to the suit filed by Sh. Subhash Meghwal, brother of defendant no. 1 against illegal and unauthorized construction raised by plaintiff by encroaching upon the portion of land of House No. 60, Village Madangir, New Delhi. The plaintiff has himself constructed illegal and unauthorized construction on the land of Khasra No. 12. The portion of the plaintiff's house i.e. House No. 59 was also booked for unauthorized construction on 03.09.2012. So, plaintiff has no CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 12/18 locus standi to file the present suit. Hence, the suit is liable to be dismissed.
18.2 Defendant no. 1 has also deposed that the plaintiff has not joined any other person of locality as there is either any constant danger with their life or property. The present suit cannot be filed by the plaintiff when he specifically deposes that there is a constant danger of a people of the society. Therefore, the plaintiff cannot maintain a suit representative capacity and hence, is hit by Section 91 of CPC because the liue of the court has not been obtained by. Plaintiff has no legal right to sue the defendants. The plaintiff has not even mentioned any incident which might have happened at any point of time. Therefore, the suit is liable to be dismissed.
18.3 In cross-examination, the witness has admitted the suggestion that a fire incident took place in the basement of House No. 60. He denies the suggestion that since he is in Delhi Police, no other person from the locality came forward to file a case against him. He admitted that H. No. 60 is in his possession. He also admitted that the basement of H. No. 60 was booked by MCD. He deposed that both the basements of both houses i.e. of plaintiff's and his house are booked. He admitted that there are 3 to 4 cases pending in Saket Court and he had filed only 1 case with regard to property.
19. Section 91 of CPC is reproduced as under :-
"91. Public nuisances and other wrongful acts CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 13/18 affecting the public. - [(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted, -
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.] (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
20. In the present suit, defendant no. 1 has raised the question of locus of the plaintiff. It is an admitted position that another civil cases are pending between the parties. It is also an admitted position that only the plaintiff has approached the court on the ground that because the illegal construction by the defendant no. 1 which has posed a continuous threat/danger to the plaintiff as well as to the people of locality. It is also an admitted position that Houses No. 59 and 60 are adjacent to each other. It is also an admitted position that a fire incident took place in the basement of H. No. 60 due to accumulation of garbage which not only causes danger to the plaintiff but also to the people of locality. However, the present suit is filed only by the plaintiff himself on the ground of illegal and unauthorized construction. Had there been any danger, the other locality people should have CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 14/18 approached the court stating the facts of danger posed to them. Instead of that, plaintiff has approached the court on the ground of danger to the locality people. Certainly, plaintiff has filed the present suit in the individual capacity on behalf of the other locality people without making them one of the plaintiffs. Therefore, the present suit appears to be hit by the provisions of Section 91 of Civil Procedure Code for not filing the suit by two or more persons with the leave of the court. Consequently, the present suit is not maintainable in the present form and the plaintiff has no locus to file the present suit.
20.1 Consequently, these issues are decided against the plaintiff and in favour of the defendant no. 1.
Issue No. 521. I shall deal with issue no. 5 as under :-
"5. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause (a) of the plaint? OPP"
21.1 Vide this issue, the plaintiff seeks permanent injunction with cost in his favour and against the defendant no. 1, his agents, servants, legal heirs, associates, attorney, assignees, administrator or any other person on his behalf be restrained from causing any inconvenience and danger to the life and property of plaintiff due to open and illegal dangerous basement.
21.2 In the instant case, the property of the plaintiff and even of defendant no. 1 are already booked for demolition regarding the CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 15/18 illegal and unauthorized construction by them as discussed in the preceding issues decided above, a relief of permanent injunction could have been passed for restraining the defendants from causing any inconvenience and danger to the life and property of the plaintiff but in view of the findings of this court on issues no. 1, 2, 3 and 4, the facts of the instant case do not require any indulgence of this court because the present suit ought to have been dismissed on the ground of approaching the court with unclean hands and no relief of permanent injunction can be granted and the facts and circumstances of the instant case.
21.3 Hence, this issue is decided against the plaintiff and in favour of the defendants.
Issue No. 6 and 722. I shall deal with issues no. 6 and 7 together being interconnected as under :-
"6. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer clause (b) of the plaint? OPP"
"7. Whether the plaintiff is entitlted to a decree of mandatory injunction as prayed for in prayer clause (c) of the plaint?OPP"
22.1 Vide these issues, the plaintiff seeks mandatory injunctions with cost in his favour and against the defendants no. 1 and 2 directing them to demolish the entire illegal suit property of defendant no. 1 and to provide adequate safeguard to protect the CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 16/18 inhabitants from any mis-happening when the suit property is entirely demolished and to provide repair and maintenance to the property of the plaintiff.
22.2 The onus to prove these issues is upon the plaintiff. As the suit property of defendant no. 1 and the property of plaintiff have already been booked by the defendant no. 2/SDMC dated 03.09.2012 and 23.11.2015 and demolition order has already been passed in respect of properties of plaintiff and defendant no.
1. 22.3 Thus, in the opinion of this court, the suit is already booked for demolition, therefore, there is no need to pass any court orders for demolition thereof. Any such court order would be completed unnecessary and is not required. Defendant no. 2/SDMC has already taken adequate steps for dealing with the unauthorized construction as per the provisions of DMC Act and any further direction to the defendant no. 2/SDMC would be unwanted. Consequently, at this stage, there is no need of any mandatory injunction as prayed for.
22.4 Hence, these issues are decided against the plaintiff and in favour of the defendants.
Issue No. 8.
10. Relief.
23. In view of the abovesaid discussion, issue no. 1 is decided against the plaintiff and in favour of the defendant no. 1.
CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 17/18Issues no. 2, 3 and 4 are decided against the plaintiff and in favour of the defendant no. 1.
Issues no. 5 is decided against the plaintiff and in favour of the defendants.
Issues no.6 and 7 are decided against the plaintiff and in favour of the defendants.
24. Consequently, the present suit for permanent and mandatory injunction instituted by the plaintiffs is hereby dismissed.
25. Parties to bear their own cost.
26. Decree sheet be prepared accordingly.
27. File be consigned to record room after due compliance.
Announced in open Court (Santosh Kumar Singh)
on 29.08.2023 SCJ-cum-RC (South)
Saket Courts, New Delhi
SANTOSH Digitally
by SANTOSH
signed
KUMAR KUMAR SINGH
Date: 2023.08.29
SINGH 16:07:45 +0530
This judgment contains 18 pages and each page bears my signature.
(Santosh Kumar Singh) SCJ-cum-RC (South) Saket Courts, New Delhi Digitally signed SANTOSH by SANTOSH KUMAR SINGH KUMAR Date:
SINGH 2023.08.29 16:07:59 +0530 CS SCJ 83532/2016 Surinder & Ors. Vs. Chand Prakash and Anr. Page No. 18/18