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[Cites 13, Cited by 0]

Delhi District Court

Mahendri Dahiya vs . Mcd & Ors. on 9 May, 2019

Mahendri Dahiya Vs. MCD & Ors.



        IN THE COURT OF MS TYAGITA SINGH
SENIOR CIVIL JUDGE­CUM­RENT CONTROLLER (SOUTH),
             SAKET COURTS, NEW DELHI

CS SCJ 82814/16

CNR No.: DLST03­000058­2012

IN THE MATTER OF:

MS. MAHENDRI DAHIYA
W/O SH. K.C. DAHIYA
R/O E­73, JAWAHAR PARK,
DEVLI ROAD, NEW DELHI­110062              ....PLAINTIFF

                                 VERSUS

1. M.C.D. DELHI
THROUGH
ITS DY. COMMISSIONER
(SOUTH ZONE),
GREEN PARK, NEW DELHI

2. THE S.H.O.
PS NEB SARAI,
NEW DELHI

3. SH. KARTAR SINGH (CONTRACTOR)
PLOT NO. E­101, JAWAHAR PARK,
KHANPUR, NEW DELHI­110062

4. SH. S.N. MEHTA (BUILDER)
S/O SH. M.R. MEHTA

CS SCJ 82814/16                                  Page 1 of 20
 Mahendri Dahiya Vs. MCD & Ors.



R/O D­150, KRISHNA PARK,
NEW DELHI­110062

5. SH. KAMALJEET SINGH (OWNER)
S/O SH. SURJIT SINGH
R/O D­135, KRISHNA PARK,
NEW DELHI­110062                                        ....DEFENDANTS

DATE OF INSTITUTION                              :20.04.2012
DATE OF RESERVING JUDGMENT                       :06.05.2019
DATE OF PRONOUNCEMENT                            :09.05.2019
DECISION                                         :DISMISSED

Advocates appearing in the matter:

Sh. Mohan Shyam Arya, Ld. counsel for plaintiff.
Sh. Lav Sharma, Ld. counsel for defendant no. 1.
Sh. Vinod Kumar, Ld. Counsel for defendants no. 3 to 5.


                                 JUDGMENT

1. Vide this judgment, I shall decide the suit for permanent and mandatory injunction filed by plaintiff against the defendants as mentioned in the memo of parties.

FACTS OF THE CASE

2. Brief facts of the case, as mentioned in the plaint, are as follows:

CS SCJ 82814/16 Page 2 of 20
Mahendri Dahiya Vs. MCD & Ors.
2.1. That the plaintiff is permanent resident of premises no. E­73, Jawahar Park, Devli Road, New Delhi, wherein she is living with her family members and she is aggrieved due to the illegal construction being raised by defendants no. 3 to 5 at premises no. E­101, Jawahar Park, New Delhi.
2.2. That the defendants no. 3 to 5 are raising construction in the suit property i.e. plot no. E­101, Jawahar Park, New Delhi at points marked 'A' 'B' 'C' and 'D' as shown in red colour in the Site Plan, in connivance with defendant no.1/MCD and defendant no.2/SHO, without obtaining any sanctioned plan from MCD in violation of the provisions of the Delhi Municipal Corporation Act.
2.3. That the defendants no. 3 to 5 have decided to construct 18 flats in the suit property illegally and when plaintiff tried to stop the illegal and unauthorized construction, the defendants no. 3 to 5 have threatened her with dire consequences. That despite complaint to defendants no. 1 and 2, they have not taken any action against defendants no. 3 to 5.
2.4. That there is shortage of basic amenities in the colony and there is no sewage system in E­Block of the colony and the construction of 18 flats which may be eventuality occupied by various occupants, will CS SCJ 82814/16 Page 3 of 20 Mahendri Dahiya Vs. MCD & Ors.

put further pressure on the resources of the colony which are already constrained.

2.5. That there is no proper arrangement for garbage collection in the colony and the construction being raised by defendants no. 3 to 5 in the suit property is causing the problem of garbage pollution, due to which nuisance is being caused to the residents of the colony including plaintiff.

2.6. That above stated illegal construction will also cause a lot of parking problems and traffic conjestion in the colony as the width of the road leaning to the colony is only 12 feet.

2.7. On the basis of above stated facts and circumstances, the plaintiff has prayed for relief of permanent injunction for restraining the defendants no. 3 to 5 from raising illegal and unauthorized construction in the suit property i.e. plot no. E­101, Jawahar Park, New Delhi, as shown in red colour in the Site Plan annexed with the plaint. The plaintiff has also prayed for mandatory injunction for directing defendant no.1 and 2 to take legal action against the already raised unauthorized construction in the suit property and to demolish the unauthorized construction.

CS SCJ 82814/16 Page 4 of 20

Mahendri Dahiya Vs. MCD & Ors.

3. Written statement was filed by defendant no.1/SDMC stating that during site inspection, it was noticed that the owner/builder of property no. E­101, Jawahar Park, New Delhi, had just started laying foundation for raising construction, which was got stopped at initial stage and no construction is being raised in the suit property at present.

4. Replication was filed by plaintiff to the written statement of defendant no.1/MCD denying the facts mentioned in the written statement and reiterating the facts mentioned in the plaint.

5. Written statement was filed by defendants no. 3 to 5 raising various objections to the filing of the suit. Defendants no. 3 to 5 stated that plaintiff has suppressed material facts from the Court and has not come to Court with clean hands therefore, she is not entitled to claim any relief of permanent or mandatory injunction in this suit.

5.1. The defendants no. 3 to 5 further alleged that plaintiff is herself guilty of raising illegal and unauthorized construction in her premises no. E­73, Jawahar Park, Devli Road, New Delhi, which was already booked by MCD and the demolition order has already been passed against the property of plaintiff, but these facts have not been brought to the notice of the Court by the plaintiff.

CS SCJ 82814/16 Page 5 of 20

Mahendri Dahiya Vs. MCD & Ors.

5.2. The defendants no. 3 to 5 have stated that no illegal and unauthorized construction is being raised in suit property no. E­101, Jawahar Park, New Delhi, by the defendants and plaintiff has filed the case without any cause of action.

5.3. It has been further stated in the written statement that defendants no. 3 and 4 have no concern with the property and they are not the builders, and only defendant no.5 is the owner of the property and no construction is being raised in the suit property by any of the defendants at present.

5.4. That a similar case was filed by the husband of plaintiff i.e. suit no. 445/11, titled 'Kishan Chand Dahiya Vs. MCD & Ors.", which was withdrawn by her husband.

5.5. On the basis of above stated facts and circumstances, the defendants no.3 to 5 have stated that no cause of action arises in favour of plaintiff for filing the present suit and the suit is liable to be dismissed.

6. Replication was filed by the plaintiff to the written statement of defendants no. 3 to 5 in which plaintiff denied that there was illegal construction at her property no. E­73, Jawahar Park, Devli Road, New CS SCJ 82814/16 Page 6 of 20 Mahendri Dahiya Vs. MCD & Ors.

Delhi, and there was any demolition order passed by MCD against her. All the facts mentioned in the written statement were denied in the replication and the facts mentioned in plaint were reiterated.

7. The application of plaintiff U/o XXXIX Rule 1 and 2 CPC was never pressed by the plaintiff and never decided by the Ld. Predecessor before framing of the issues.

8. Following issues were framed by the Ld. Predecessor vide order dated 08.10.2012:

1. Whether suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act as alleged? OPD
2. Whether the plaintiff herself is the violator of law as alleged by defendants? OPD No. 3 to 5
3. Whether plaintiff has not approached the Court with clean hands and has suppressed the material facts from the Court, if so, what facts? OPD No. 3 to 5
4. Whether plaintiff is entitled for a decree of permanent injunction as prayed for in the suit? OPP
5. Whether plaintiff is entitled for a decree of mandatory injunction as prayed for in the suit? OPP
6. Relief.
CS SCJ 82814/16 Page 7 of 20

Mahendri Dahiya Vs. MCD & Ors.

EVIDENCE ON RECORD

9. The case was fixed for Plaintiff's Evidence. Plaintiff Smt. Mahendri Dahiya, examined herself as PW1 and tendered her affidavit of evidence as Ex. PW1/A. She reiterated all the facts mentioned in the plaint in her affidavit also. She exhibited following documents on record. 

Serial        Documents                                     Exhibits
No.
1.            Original Site Plan                            Ex. PW1/1

2. Copy of complaint dated 09.04.2012 sent to Ex. PW1/2 Deputy Commissioner, MCD 3. Postal receipt Ex. PW1/3

4. Copy of complaint dated 09.04.2012 sent to Ex. PW1/4 Deputy Commissioner of Police 5. Postal receipt Ex. PW1/5

6. Copy of complaint dated 09.04.2012 sent to Ex. PW1/6 SHO; PS Neb Sarai

7. Copy of Voter ID Card of Smt. Mahendri Ex. PW1/7 Dahiya (OSR)

8. Copy of Electricity Bill in the name of Sh. Ex. PW1/8 Kishan Chand Dahiya, husband of Smt. (OSR) Mahendri Dahiya

9. Photographs of the premises Mark A to Mark C CS SCJ 82814/16 Page 8 of 20 Mahendri Dahiya Vs. MCD & Ors.

PW1 was duly cross­examined and discharged.

10. After closure of Plaintiff's Evidence vide order dated 30.11.2015, case was fixed for Defendants' Evidence.

11. Defendants took long time for leading defence evidence, and in the meantime, once the suit was dismissed in default on 22.08.2016 but it was again restored on application of plaintiff, vide order dated 02.11.2016 and case was fixed for Defendant's Evidence. DE was closed due to non­appearance of defendants no. 3 to 5, vide order dated 09.07.2018, but it was subsequently reopened on application of defendant, vide order dated 02.11.2018.

12. In Defence Evidence, defendants no. 3 to 5 examined D3W1 Ct. Prabhakar Mishra, Joint Commissioner of Police, Southern Range, New Delhi, who was summoned with the record of DO No. 7443/SO/SR dated 24.06.2009 but the witness stated that record has been destroyed and copy of order no. 1704­1720/SO/SER dated 27.04.2017 was filed as Mark X.

13. Defendants no. 3 to 5 further examined D3W2 Sh. Rajiv Kumar, JE, South Zone, SDMC, who tendered following documents on record in respect of booking of property of plaintiff i.e. property no. E­73, CS SCJ 82814/16 Page 9 of 20 Mahendri Dahiya Vs. MCD & Ors.

Jawahar Park, Devli Road, New Delhi, for unauthorized construction: 

Serial        Documents                                              Exhibits
No.

1. Copy of FIR bearing no. 50704 dated Ex. D3W2/1 07.08.2009 (OSR)

2. Copy of show cause notice bearing no. 7104 Ex. D3W2/2 dated 07.08.2009 (OSR)

3. copy of approval for demolition notice dated Ex. D3W2/3 17.08.2009 (OSR)

4. Copy of demolition order bearing no. 7179 Ex.D3W2/4 dated 17.08.2009 (OSR)

5. copy of the demolition order No. Ex. D3W2/5 56/Bldg./UC/SZ/2009 dated 24.08.2009 (OSR)

6. copy of letter no. 1924/R­SHO/Neb Sarai, Ex.

New Delhi, dated 22.06.2009 from SHO Neb D3W2/6(Coll Sarai, information regarding unauthorized y.) (OSR) construction,

7. copy of the note sheet for unauthorized Ex. D3W2/7 construction in premises no. E­73, Jawahar (colly.) Park, Devli Road, New Delhi dated (OSR) 10.08.2009, 12.08.2009, 19.03.2010, 08.04.2010

8. copy of the photograph showing unauthorized Ex. D3W2/8 construction in property bearing no. E­73, (OSR).

CS SCJ 82814/16 Page 10 of 20

Mahendri Dahiya Vs. MCD & Ors.

Jawahar Park, Devli Road, New Delhi

14. SI Shri Bhagwan, PS Neb Sarai, New Delhi, was examined as D3W3. He exhibited following documents: 

Serial       Documents                                      Exhibits
No.

1. Copy of letter no. 1420/SHO/P.S./2009/Neb Ex.D3W3/1 Sarai, dated 22.06.2009 addressed to the concerned department MCD, South Zone, Delhi

2. DD entry No. 37­B dated 11.04.2012, PS Neb Ex.D3W3/2 Sarai

3. DD No. 46B dated 10.04.2012, PS Neb Sarai Ex.D3W3/3

4. DD No. 19­A dated 23.04.2012, PS Neb Sarai Ex.D3W3/4

15. Defendant's Evidence was closed vide order dated 15.02.2019 and the case was fixed for final arguments. Final arguments were heard on last date and case was fixed for order for today.

16. In support of his arguments, Ld. Counsel for defendants no. 3 to 5 has filed following citations:

(i) Canara Bank & Ors. Vs. Debasis Dass & Ors., in Appeal (Civil) 7539 of 1999, decided on 12.03.2003 (Hon'ble Supreme Court of CS SCJ 82814/16 Page 11 of 20 Mahendri Dahiya Vs. MCD & Ors.
India)
(ii) Kimti Lal Rahi Vs. Union of India And Ors., 49 (1993) DLT 56, (Hon'ble Delhi High Court)
(iii) Executive Committee of Vaish Vs. Lakshmi Narain And Ors., 1976 AIR 888, 1976 SCR (2) 1006 (Hon'ble Supreme Court of India)
(iv) Leela Vs. Ambujakshy And Ors., AIR 1989 Ker 308 (Hon'ble Kerala High Court)
(v) S.P. Chengalvaraya Naidu Vs. Jagannath, 1994 AIR 853, (Hon'ble Supreme Court of India)
(vi) C.B. Aggarwal Vs. P. Krishna Kapoor, AIR 1995 Delhi 154, (Hon'ble Delhi High Court) ISSUE WISE DECISION:
Issue no. 1. Whether suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act as alleged? OPD
17. The onus to prove issue no. 1 was upon the defendant but it has not been specified, upon which defendant the onus was placed.

However, the formation of issue itself makes it amply clear that onus of proving this issue should be placed upon defendant no.1 as it was based upon preliminary objections of defendant no.1.

CS SCJ 82814/16 Page 12 of 20

Mahendri Dahiya Vs. MCD & Ors.

18. Ld. counsel for defendant no.1 argued that notice U/s.477/478 Delhi Municipal Act (DMC Act) should have been given to the MCD, failing which suit is not maintainable. On the other hand, Ld. counsel for plaintiff argued during final arguments that the relief of permanent and mandatory injunction against the unauthorized and illegal construction raised by the defendants no. 3 to 5 is of urgent nature, therefore exemption of statutory notice is applicable as per Section 478(3) DMC Act.

19. The relief of urgent nature against unauthorized construction has been sought in this case, the object of which would have been defeated in case 60 days statutory period of notice was required to be served upon the MCD, hence, the case falls within exemption of Section 478 (3) of DMC Act. Accordingly, issue No.1 stands decided in favour of the plaintiff and against the defendant no.3.

Issue no. 2 Whether the plaintiff herself is the violator of law as alleged by defendants? OPD No. 3 to 5 And Issue no. 3. Whether plaintiff has not approached the Court with clean hands and has suppressed the material facts from the Court, if so, what facts? OPD No. 3 to 5

20. Both these issues are being decided together as onus to prove CS SCJ 82814/16 Page 13 of 20 Mahendri Dahiya Vs. MCD & Ors.

both these issues was upon defendants no. 3 to 5 and both these issues are inter­connected.

21. During final arguments, Ld. Counsel for defendants no. 3 to 5 vehemently argued that plaintiff has not come to Court with clean hands and has suppressed the material facts from the Court that she has herself raised illegal and unauthorized construction in her property prior to the filing of the suit and she is not entitled to relief of permanent and mandatory injunction, which is an equitable relief. To prove these issues, defendant no.3 to 5 have examined two witnesses i.e. D3W2 Sh. Rajiv Kumar, JE, South Zone, SDMC and D3W3 SI Shri Bhagwan, PS Neb Sarai, who have exhibited various documents on record to prove that unauthorized construction raised by plaintiff in property had already been booked for legal action by MCD.

22. Perusal of the documents filed on record by both the witnesses clearly reveals that the property no. E­73, Jawahar Park, Devli Road, New Delhi, had been booked for unauthorized construction in year 2009 and demolition order had been passed by the Competent Authority of MCD against the property of plaintiff in year 2009. All the relevant documents in respect of unauthorized construction in property of plaintiff, have been exhibited from Ex. D3W2/1 to Ex. D3W2/7. The plaintiff had suppressed these material facts from the Court that her CS SCJ 82814/16 Page 14 of 20 Mahendri Dahiya Vs. MCD & Ors.

property had been booked for unauthorized construction prior to the filing of the present suit.

23. Hon'ble Supreme Court of India in case titled "S.P. Chengalvaraya Naidu Vs. Jagannath", 1994 AIR 853, has held in para no. 5 that "........................... The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property­grabbers, tax evaders, bank­loan­dodgers and other unscrupulous persons from all walks of life find the court­process a convenient lever to retain the illegal­gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation".

24. Hon'ble High Court of Delhi in case titled "C.B. Aggarwal Vs. P. Krishna Kapoor, AIR 1995 Delhi 154, has held in para no. 22 of the judgment that, "............... It is true that in a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve CS SCJ 82814/16 Page 15 of 20 Mahendri Dahiya Vs. MCD & Ors.

extortion or oppression; or to exert pressure so as to achieve an improper end. ................."

25. Hon'ble Delhi High Court in another case titled Kimti Lal Rahi Vs. Union of India And Ors., 49 (1993) DLT 56, has held in para no. 18 that "...................... "It is well settled that one who claims equity must do equity. Estoppel springs from equity doctrine. If the application of the principal leads to results which are unjust and opposed to fair play and justice the doctrine will have no application in a given case."

26. Hon'ble Kerala High Court in case titled "Leela Vs. Ambujakshy And Ors., AIR 1989 Ker 308, has held in para no. 12 that "....................... injunction is an extraordinary discretionary relief. A person approaching the Court for such a relief must come with clean hands and he must do equity. He who seeks equity must do equity. .................."

27. Perusal of above stated judgments of the Hon'ble Supreme Court of India and Hon'ble High Court relied upon by defendants no. 3 to 5 reveals that the relief of permanent and mandatory injunction, as per Specific Relief Act 1963, is equitable relief which can be granted on CS SCJ 82814/16 Page 16 of 20 Mahendri Dahiya Vs. MCD & Ors.

the basis of equity, and the party who claims equity must come to Court with clean hands. However, in this case, the plaintiff has not come to Court with clean hands and has suppressed material facts from the Court at the time of filing of the plaint. Even in the replication to written statement of defendants no. 3 to 5, plaintiff denied that her property was booked for unauthorized construction prior to filing of the suit. Therefore, plaintiff is liable for making false averments despite having knowledge of the real facts in respect of her own property that her property had been booked for unauthorized construction by MCD prior to filing of this suit. Plaintiff has herself violated the provisions of Delhi Municipal Corporation Act and has not approached the Court with clean hands. Therefore, issue no. 2 and 3 are decided in favour of defendants no. 3 to 5 and against the plaintiff.

Issue no. 4. Whether plaintiff is entitled for a decree of permanent injunction as prayed for in the suit? OPP And Issue no. 5. Whether plaintiff is entitled for a decree of mandatory injunction as prayed for in the suit? OPP

28. Both these issues are being decided together as onus to prove both these issues was upon plaintiff and both these issues are inter­ CS SCJ 82814/16 Page 17 of 20 Mahendri Dahiya Vs. MCD & Ors.

connected.

29. In order of prove her case for permanent and mandatory injunction on merits, plaintiff has exhibited on record the copy complaint dated 09.04.2012 sent to Deputy Commissioner of MCD as Ex. PW1/2, copy of complaint sent to the DCP as Ex. PW1/4 and copy of complaint sent to SHO PS Neb Sarai as Ex. PW1/6. Besides these documents, the plaintiff has not filed on record any other substantial documents to prove that illegal and unauthorized construction as alleged in the plaint, was being raised by defendants no. 3 to 5 at the time of filing the suit.

30. In this regard, it is pertinent to discuss herein the status report of SDMC which was filed on record on 07.05.2012. As per the status report of SDMC, the owner/builder of suit property no. E­101, Jawahar Park, Devli Road, New Delhi, had just started laying foundation for raising construction, and it was got stopped at initial stage, and at the time of inspection, neither any construction activities nor any building material was found stacked at the site. MCD has stated in the status report that property of plaintiff i.e. E­73, Jawahar Park, New Delhi, was built up property from ground floor till second floor and the entire property of plaintiff had been constructed without any sanctioned plan from MCD and it was illegal and unauthorized CS SCJ 82814/16 Page 18 of 20 Mahendri Dahiya Vs. MCD & Ors.

construction.

31. The status report of SDMC as well as photographs filed on record by plaintiff herself as Ex. PW1/9, reveals that only the foundation was laid at the site and no construction was started by the defendants at the time of inspection. During final arguments, Ld. Counsel for defendants no. 3 to 5 has stated that the suit property is still in the same situation and defendants have not attempted to raise any illegal and unauthorized construction in the suit property till date despite the fact that suit is pending since year 2012.

32. In my issue­wise decision on issue no. 2 and 3, it has been clearly observed that plaintiff has not come to Court with clean hands and she is herself liable for violation of Delhi Municipal Corporation Act. Therefore, she is not entitled to any relief of permanent and mandatory injunction as it is an equitable relief and the person who seeks equity must do equity. Moreover, the cause of action did not survive in favour of plaintiff as the defendants no. 3 to 5 have not raised any illegal and unauthorized construction in the suit property till date and the construction was stopped by MCD way back in year 2012 at the initial stage. Therefore, both these issues no. 4 and 5 are decided against the plaintiff and in favour of defendants no. 3 to 5.

CS SCJ 82814/16 Page 19 of 20

Mahendri Dahiya Vs. MCD & Ors.

Issue no.6 Relief.

33. On the basis of abovestated discussion and findings upon issue no. 2 to 5, the plaintiff is not entitled to any relief of permanent and mandatory injunction. The suit stands dismissed. However, SDMC is at liberty to take action, if any of the parties raises any illegal construction in their respective properties in future.

34. No order as to costs. Decree­sheet be prepared accordingly. File be consigned to record room. 

(Announced in the open                   (Tyagita Singh)
Court on 09.05.2019)             SCJ­cum­RC (South), Saket Courts
                                           New Delhi




CS SCJ 82814/16                                                   Page 20 of 20