Delhi District Court
Sh. Rakesh Sharma vs Negolice India Ltd on 3 December, 2014
IN THE COURT OF SH. SATISH KUMAR ADDITIONAL DISTRICT
JUDGE02(NORTH) ROHINI COURTS, DELHI.
MCA No.20/14
1. Sh. Rakesh Sharma
S/o late Sh. Z.S Sharma
R/o H.No. 330, Mandir Wali Gali
Azadpur Village, Delhi110033. ...... Appellant
VERSUS
1. Negolice India Ltd.
Through its Managing Director
Owners of M2K Victoria Gardens
Corporate Office:
E13/29, Ist Floor, Harsha Bhawan
Connaught Circus, New Delhi110001
Office also at: M2K Victoria Gardens
Ring Road, Azadpur, Delhi110033.
2. North Delhi Municipal Corporation
Through its Commissioner
Office at: Civic Centre, MCD Headquarters
Deen Dayal Upadhyay Marg, New Delhi. ......Respondents
Appeal received on : 31.08.13
Arguments heard on: 29.11.14
Appeal decided on : 03.12.14
Final order : Appeal dismissed
APPEAL U/O 43 RULE 1(R) R/W SECTION 104 OF CPC AGAINST THE ORDER DATED
27.07.13 PASSED BY MS. SHEFALI SHARMA, LD CIVIL JUDGE, NORTH ROHINI, DELHI,
WHEREBY DISMISSED THE APPLICATION OF THE APPELLANT U/O 39 RULE 1 & 2 R/W
SECTION 151 OF CPC
ORDER
1. By this order, I shall decide the appeal against the impugned order Rakesh Sharma Vs Negolice India Ltd & Anr MCA 20/14 1 Of pages 6 passed by ld Civil Judge dated 27.07.13 vide which the application u/o 39 Rule 1 & 2 r.w Section 151 of CPC being filed by Appellant/plaintiff was dismissed.
2. The brief material facts for disposal of the appeal are that appellant/plaintiff has filed a suit for permanent and mandatory injunction against the respondents/defendants stated therein that he is residing at house no. 330, mandir Wali Gali, Azadpur village, Delhi and near to his house a pucca road of 45 width runs from G.T road near Azadpur Bus Terminal and the same road is used by the appellant/plaintiff as well as his other family members and all residents of Azadpur village. This is a public road and used by the residents of Azadpur village including the defendant no. 1 and no body has any right to encroach upon the public land and carry out construction over this road.
3. It is stated that on 25.12.12 when the plaintiff was going out of his house, he found that defendant no. 1 had badly damaged a large portion of this road upto 7 feet and was trying to encroach upon the public road upto 7 feet width and has put some pillars for illegal construction and encroachment. The appellant/plaintiff approached one Sh. Dharambir Yadav, president of Azadpur Village Resident Welfare Association(RWA) and informed him about the encroachment. The RWA also made a complaint to the SHO, P.S Adarsh Nagar and various other authorities including the NDMC on 27.12.12 but no action has been taken by any of the authority and again on 17.03.13 the Rakesh Sharma Vs Negolice India Ltd & Anr MCA 20/14 2 Of pages 6 appellant/plaintiff found some construction workers of defendant no. 1 on the spot and on inquiry the workers informed that they are instructed to cover a portion of seven feet on the road within the boundary wall of M2K project. In support of the averments of the plaint the appellant/plaintiff has also filed various documents icluding Layout PlanI of Azadpur Village, Delhi110033 issued by the Town Planning Department, M.C.D, Layout Plan2 of Azadpur Village, Delhi110 033, photographs, copy of letter no. RWA/257/12 dated 27.12.12 issued to SHO, P.S Adarsh Nagar, Delhi, copy of letter no. RWA/256/12 dated 27.12.12 issued to Sh. Mukesh Goel, Leader Opposition, MCD North, Copy of letter no. RWA/259/12 dated 27.12.12 issued to DC, Civil Lines Zone, MCD North, copy of letter no. RWA/258/12 dated 27.12.12 issued to Smt. Neelam Budhiraja, Area Councilor, MCD North and Copy of letter no. D4/ND/North DMC/2012/200 dated 02.01.2012 issued by Sh. Mukesh Goel, leader opposition & Councilor, North Delhi, Municipal Corporation.
4. That in the aforesaid suit the appellant/plaintiff has also filed an application u/o 39 Rule 1 & 2 r.w Section 151 of CPC with prayer that defendant no. 1 and their associates, agents, attorneys etc be restrained from causing any damage to the public road and from making any encroachment and construction on the public road.
5. That Ld. Trial Court has dismissed the application u/o 39 Rule 1 & 2 r.w Section 151 of CPC being filed by the appellant/plaintiff alongwith the Rakesh Sharma Vs Negolice India Ltd & Anr MCA 20/14 3 Of pages 6 main suit vide order dated 27.07.13 and the same has been challenged by way of this appeal by the appellant/plaintiff.
6. That, ld counsel for respondents/defendants has submitted that he does not want to file reply to the appeal and shall straightaway argue the matter.
7. Having heard the submissions of ld counsel for parties and aftergone through the impugned order dated 27.07.13, this Court is of the considered view that the appeal being filed by the appellant/plaintiff is without any merit and there is no illegality or irregularity in the impugned order passed by ld Trial Court while dismissing the application u/o 39 Rule 1 & 2 r.w Section 151 of CPC and the order is a very reasoned one inasmuch as it is settled law that for obtaining an order u/o 39 Rule 1 & 2 r.w Section 151 of CPC the party has to satisfy the Court that prima facie case is made out in his/her favour, balance of convenience lies in his/her favour and he/she shall suffer irreparable loss and injury in case the interim protection is denied by the Court.
8. Prima facie case means that there is a likelihood of infraction of a legal right of the plaintiff by the defendant. It means that the case of the plaintiff raises a triable issue which needs investigation, consideration and adjudication. The plaintiff has also to establish that balance of convenience lies Rakesh Sharma Vs Negolice India Ltd & Anr MCA 20/14 4 Of pages 6 in his favour. Balance of convenience connotes comparative mischief likely to be cause to either party in case of grant or refusal of relief of injunction.
9. The plaintiff has also to satisfy the Court that noninterference by the Court would result in an irreparable injury and that there is no other remedy available to him except one i.e the grant of injunction in his favour. Irreparable injury means an injury which is a material one and one that can not be adequately compensated by way of damages. Further, it is a settled law that grant of temporary injunction is an equitable relief wherein the plaintiff has to satisfy the Court that he has acted bonafidely.
10. Ld. Trial Court has rightly mentioned in the impugned order that appellant/plaintiff has no prima facie case to file the present suit in the individual capacity inasmuch as he is claiming all the rights of the public at large.
11. During the course of arguments it was also revealed by ld counsel for respondents/defendants that not only the application u/o 39 Rule 1 & 2 r.w Section 151 of CPC was dismissed by Ld. Trial Court but the suit of the appellant/plaintiff also stands dismissed on the application u/o VII Rule 11 r.w Section 151 of CPC filed on behalf of respondents/defendants and as per the law laid down Mumbai International Airport Private Ltd. Vs Indamer Rakesh Sharma Vs Negolice India Ltd & Anr MCA 20/14 5 Of pages 6 Company Private Limited & another, 2013 STPL(Web) 315 SC, wherein it is held by Hon'ble Supreme Court that a suit in which the interim order has been passed if dismissed, then the impugned order also can not sustain. In the present case since the suit of appellant/plaintiff has already been dismissed u/o VII Rule 11 r.w Section 151 of CPC, the present appeal become infructuos and same is accordingly dismissed.
Announced in the open court (SATISH KUMAR)
on 3rd of December, 2014 ADJ02(NORTH)
Rohini Courts/Delhi
It is certified that this order contains 6 pages and each page has been singed by me.
(SATISH KUMAR) ADJ02(NORTH) Rohini Courts/Delhi Rakesh Sharma Vs Negolice India Ltd & Anr MCA 20/14 6 Of pages 6