Delhi District Court
Smt. Maya Devi vs Shri Surender Sharma on 16 February, 2012
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 344/09
Old Suit No. 1152/06
Unique Case ID No. 02402C0211892009
Smt. Maya Devi
w/o Shri Ram Prakash
r/o House No. C120/10,
Gali No.3, Bhajanpura,
Delhi110053.
........... Plaintiff.
VERSUS
1. Shri Surender Sharma
s/o Shri Ram Dhan Sharma
2. Smt. Nirmala Devi
w/o Shri Surender Sharma
both r/o House No. 120/11,
Gali no.3, Bhajanpura, Delhi110053.
3. M.C.D.
(North Zone Shahdara)
Through its Commissioner,
Town Hall, Delhi.
......... Defendants.
Date of institution of the suit : 12.05.2006
Date on which order was reserved: 28.01.2012
Date of decision : 16.02.2012
SUIT FOR PERMANENT AND MANDATORY INJUNCTIONS.
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is the owner of house bearing no. C120/10, Gali no.3, Bhajanpura, Delhi whereas, defendant no.2 is the owner of the suit property bearing no. C120/11, Gali no.3, Bhajanpura, Delhi. It has been further stated that defendant no.1 and defendant no.2 are husband and wife and are the neighbours of the plaintiff. It has been further stated that second floor of the suit property has been shown in red colour in the site plan annexed with the plaint. The grievance of the plaintiff in the present suit is that defendant no.1 and defendant no.2 are constructing the suit property unauthorizedly and illegally without any prior permission from the MCD i.e. defendant no.3 herein. It has been further stated that on 25.01.2000, the wall of the suit property fell down over the house of the plaintiff thereby injuring Pankaj, the son of the plaintiff and Shri Ram Prakash, husband of the plaintiff as a result of which FIR bearing no. 20/00 u/s 288/337 of the IPC dated 25.01.2000, P.S. Bhajanpura, was lodged against the defendants which is pending disposal. It has been further stated that the plaintiff herein filed a suit bearing no. 52/01 titled as Smt. Maya Devi Vs. Shri Surender Sharma for permanent injunction against defendants no.1 and 2 before the court of Shri V.K. Gautam, the then Ld. Civil Judge, Delhi, which was dismissed. The plaintiff has alleged that again on 05.05.2006, defendants no.1 and 2 started raising illegal and unauthorized construction at the second floor of the suit property by making 4½ inches surrounding walls and repairing the demolished portion which was demolished by defendant no.3 on 06.07.2000. It has been further stated that the plaintiff also lodged a complaint on 09.06.2005 with the defendant no.3 but no action was taken. It has been further stated that defendant no.3 is duty bound to stop the illegal and unauthorized constructions. It has been further stated that defendants no.1 and 2 are influential persons and defendant no.3 is in collusion with defendant no.1 and 2 and hence the present suit.
On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of permanent injunction restraining the defendants no.1 and 2 from making any further illegal and unauthorized constructions in the suit property. The plaintiff has also prayed for a decree of mandatory injunction directing the defendants to demolish the illegal and unauthorized construction in the suit property more specifically shown in red colour in the site plan annexed with the plaint. The plaintiff has also prayed for the costs of the suit as well.
2. Written statement has been filed on record by the defendant no.1 and 2 stating therein that the present suit is inspired by vexatious motives and as such, the present suit is liable to be dismissed; the present suit is barred by section 11 of the CPC being barred by the judgment dated 30.09.2005 in the suit no. 52/04 titled as Maya Devi Vs. Surender Sharma and Anr.; the plaintiff has concealed the material facts from this court because in the previous suit bearing no. 52/04 the plaintiff had filed an application u/o 1 rule 10 CPC for impleadment of the MCD as a party and vide orders dated 11.05.2001, the said court had dismissed the said application but in the present suit, MCD has been added as defendant no.3 by the plaintiff; the plaintiff has no locus standi to file the present suit because the defendants have never raised any illegal and unauthorized construction; the present suit is bared by the law of limitation; the present suit is also not maintainable because the second floor of the property bearing no. C120/11 gali no,3 Bhajanprua, Delhi was constructed in the month of October 1996. On merits, the defendants no.1 and 2 have admitted the site plan filed by the plaintiff but have taken the stand that construction of the room at the second floor is already in existence since the year 1996 and no new construction has been carried out by the defendants. The defendants have further stated that they have got every right to carry out the repairs in their property which are permissible accordingly to building bye laws. The defendants have denied the raising of the construction on 05.05.2006. The defendants have denied that on 25.01.2000, the wall of the suit property fell down. The defendants have admitted the lodging of the criminal case against defendant no.1 but have stated that the said criminal case was got lodged by the plaintiff falsely. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
Written statement has also been filed on record by the MCD i.e. defendant no.3 stating therein that the property in question falls under the unauthorized colony, Bhajanpura. It has been further stated that the unauthorized construction over the suit property had already been booked vide file no. 22/B/UC/SHM/2000 dated 01.05.2000 and demolition order dated 19.05.2000 has already been passed after following the due process of law. It has been further stated by the MCD that demolition action has already been taken over the suit property and roof of the second floor has already been completely demolished, all the doors and widows have also been removed on 06.07.2000 with the help of the local police. It has been further stated that at present, no construction activity was found in progress in the suit property nor any building material was found lying at the suit property and as such, no action or direction is liable to be passed against the answering defendant.
3. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 07.12.2006.
1) Whether the suit is not maintainable for want of statutory notice u/s 477/478 of the DMC Act ? OPD
2) Whether the plaintiff has not come before this court with clean hands and has suppressed the material facts ? OPD
3) Whether the suit is without any cause of action ? OPD
4) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for ?
OPP
5) Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for ?
OPP
6) Relief.
5. In order to prove their respective cases, the plaintiff has examined herself as PW1, Shri Satya Pal Singh, Officer Incharge Building Shahdara North Zone as PW2, Shri Umed Singh, Asstt. Engineer from Building department, Shahdara, North Zone, Delhi as PW3. Defendant no.1 has examined himself as DW1. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
6. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties.
7. My issuewise findings on the abovesaid issues are as under:
Issues No. 1.
The MCD i.e. defendant no.3 has taken a preliminary objection in the written statement filed on record by the MCD that the present suit is bad for want of statutory notice u/s 477/478 of the DMC Act. It has to be seen that the present suit is a suit for permanent and mandatory injunctions accompanied by an application u/o 39 rule 1 and 2 of the CPC. The settled law is that a suit for injunction simplicitor is not hit by section 477/478 of the DMC Act. Otherwise also, MCD i.e. defendant no.3 has not led any evidence nor addressed the arguments on the abovesaid aspect of the matter. As such, I am of the opinion that defendant no.3 has failed to prove this issue in its favour and as such, this issue i.e. issue no.1 is decided in favour of the plaintiff.
Issues no.2 and 3.
Defendant no.1 and 2 have taken the stand that the present suit is without any cause of action and that the plaintiff has concealed the material facts from this court in the preliminary objections of their written statement. The plaintiff in the plaint has alleged that on 05.05.2006 the defendants further tried to raise illegal and unauthorized construction over the suit property and hence the present suit. Admittedly, the plaintiff is the neighbour of the defendants no.1 and 2. In the authority cited as 178(2011) DLT 660 titled as Nazir Hussain Vs. Neeta Goel and others, the Hon'ble High Court has held as under: "(i) Civil Procedure Code, 1908 Order 6 Rule 17 Suit for permanent injunction Amendment of Plaint Correct identification of property Petitioner under right to rectify plaint if property number was inadvertently or due to lack of knowledge nor correctly stated Petition not at belated stage Neighbours have right to approach Court against unauthorized construction - Purpose of amendment application is to prevent multifarious litigation Amendment application allowed.
(ii) Locus Standi Unauthorized construction Creates civic problems for entire neighbourhood and affects material rights of neighbours Neighbours within right to approach Court against unauthorized construction No flaw in locus standi of petitioner." Without discussing the evidence of the parties in much detail, in the light of the above stated authority of the Hon'ble High Court of Delhi, I am of the opinion that the plaintiff has the cause of action in his favour to file the present suit and the defendants no.1 and 2 have failed to establish that the plaint has not come to the court with clean hands and as such, both the abovesaid issues no. 2 and 3 are decided against the defendants and in favour of the plaintiff.
Issues no. 4 and 5.
Both these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
The factual controversy has already been narrated herein above. Plaintiff has admittedly the neighbour of the defendants no.1 and 2. Now let us discuss the evidence led by both the parties in support of their respective stands.
The plaintiff had earlier filed a suit no.52/04 which was a suit for permanent and mandatory injunctions titled as Maya Devi vs. Surender Sharma and Anr. which was dismissed vide orders dated 30.09.2005 by the court of Shri Vinod Kumar Gautam, the then Ld. Civil Judge, Karkardooma Courts, Delhi. The appeal preferred by the appellant (plaintiff herein) was also dismissed vide orders dated 28.03.2008 by the court of Shri N.K. Gupta, the then Ld. ADJ, Delhi. The plaintiff has alleged in the present suit that again on 05.05.2006, the defendants no.1 and 2 started raising illegal and unauthorized constructions at the second floor and hence the present suit. The defendants have denied the raising of any unauthorized and illegal construction on the said date. Now let us discuss the evidence led by the parties in support of their respective stands.
The plaintiff has examined herself as PW1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. She has filed on record the site plan as Ex. PW1/1.
In the cross examination PW1 has admitted it to be correct that the MCD had taken action in the year 2000 against defendant no.1 and 2 in respect of the second floor of the property of defendant no.2. By way of volunteer, the plaint has stated that the property was not completely demolished. PW1 has admitted it to be correct that she had made a complaint in writing to the MCD when the property was constructed. She further states that she does not remember the date, month and year when the complaint was lodged but she again states that the date was 25.01.2005. PW1 does not remember as to whether she had filed earlier suit for permanent and mandatory injunctions which was dismissed on 30.09.2005. PW1 has admitted the filing of the appeal but she does not know as to whether the said appeal was dismissed. PW1 further states that she does not know as to by whom the site plan Ex. PW1/1 was got prepared. PW1 further states that Ex. PW1/1 was got prepared in the year 2000, but she does not remember the exact date and month. PW1 further states that she understands the site plan Ex. PW1/1. PW1 has admitted it to be correct that Ex. PW1/1 shows the construction of one room on the second floor and in the remaining portion mark A, B, C and D, parapet wall is there. PW1 has denied the suggestion that on 05.05.2006 no construction was started by defendant no.1 and 2.
Shri Satya Pal Singh, Officer Incharge from Building department Shahdara North zone, has been examined by the plaintiff as PW2 who exhibited the certified copy of the complaint lodge by the plaint on 09.05.2006 as Ex. PW1/X. In the cross examination PW2 has stated that he has no personal knowledge with regard to the complaint dated 09.05.2006.
The next and the last witness examined by the plaintiff is Shri Umed Singh, Asstt. Engineer from building department Shahdara North Zone, Delhi who has been examined as PW3 and this witness has filed on record the attested copy of the complaint dated 09.05.2006 received in their office on 11.05.2006 as Ex. PW3/A. PW3 further states that he is not aware whether any action was taken by the then concerned officers. PW3 further states that no action was taken after the complaint dated 09.05.2006. By way of volunteer, PW3 states that action was taken on 06.07.2000. PW3 admits it to be correct that the suit property of defendants no.1 and 2 is illegal and unauthorized on that day as well, of which demolition order was passed on 19.05.2000.
In the cross examination PW3 states that in view of the demolition order dated 19.05.2000, the action of demolition was taken regarding the property of defendants no. 1 and 2 on 06.07.2000. PW3 further states that he has no personal knowledge regarding the construction in this case but he was deposing on the basis of the record of the MCD.
The defendant no.1 and 2 have examined defendant no.1 as DW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the defendants no.1 and 2 in the written statement filed by defendants no.1 and 2. He has filed on record photocopy of the certified copy of the judgment dated 30.09.2005 as Ex. DW1/1, certified copy of the judgment dated 28.03.2008 as Ex. DW1/2 (already there on record as Ex. PW1/D1, photocopy of the certified copy of the orders dated 11.05.2001 as Ex. DW1/3.
In the cross examination DW1 states that the suit property was constructed upto second storey but the second storey was damaged. DW1 further states that the construction over the suit property was carried out by him in the year 1995. DW1 further states that no site plan was got passed by him from the MCD for the construction of the suit property. DW1 has admitted it to be correct that the entire suit property upto the second storey has been constructed on a wall of 4.5 inches width. DW1 has further stated that no site plan has been filed on record by him. DW1 has admitted it to be correct that on 06.07.2000, the second floor of the suit property was demolished by the MCD. DW1 has admitted the lodging of the FIR no. 20/00. DW1 has denied the suggestion that after the demolition by the MCD, he has reconstructed the suit property. DW1 has further stated that second floor is having only one room but without any door and only the wooden frame for fixing of the door is there. DW1 as confronted with four photographs and the witness has stated that those photographs pertained to the suit property but prior to its demolition by the MCD in the year 2000.
Admittedly, the previous suit bearing no. 52/04 filed by the plaintiff herein against defendant no.1 and 2 which was a suit for permanent and mandatory injunctions was dismissed vide orders dated 30.09.2005 and the consequent appeal preferred by the plaintiff herein was also dismissed on 28.03.2008. Admittedly, demolition action was taken against the property of defendant no.1 and 2 by the MCD on 06.07.2000. The case of the plaintiff is that after the demolition by the MCD, the defendants no.1 and 2 again on 05.05.2006, started raising the unauthorized and illegal construction over the suit property. The vital question to be considered by this court is as to whether the plaintiff has been able to prove the said illegal and unauthorized construction on 05.05.2006 by defendants no.1 and 2 over the suit property specifically shown in red colour in the site plan Ex. PW1/1.
Though, no specific issue has been framed on section 11 of the CPC but the said issue is a legal issue and as such, I would like to deal with this issue first. It has to be seen that the earlier suit was a suit for permanent and mandatory injunctions alleging unauthorized and illegal construction against the defendants but in the suit in hand, the plaintiff' has alleged that on 05.05.2006, the defendants no.1 and 2 started raising illegal and unauthorized construction again and as such, I am of the opinion that the present suit is not hit by section 11 of the CPC because the plaintiff has alleged fresh cause of action on 05.05.2006.
The plaintiff has filed on record the site plan which is Ex. PW1/1. The suit property i.e. the second floor thereof has been shown in red colour in the said site plan. The grievance of the plaintiff is with respect to the said portion shown in red colour in the said site plan. When the said site plan was being exhibited at the time of tendering of the affidavit of PW1 as Ex. PW1/1, the same was objected to with regard to the mode of proof. The question as to whether the plaintiff has been able to prove the said site plan Ex. PW1/1 or not. If the cross examination of PW1, vital part of which has been reproduced herein above, is carefully gone through, it becomes evidently clear that the said site plan has not been proved at all by PW1. PW1 has failed to produce the witness by whom the said site plan was got prepared. She further states that she does not know as to by whom the said site plan was prepared. She further states that Ex. PW1/1 shows the construction of one room at the second floor and the construction of the parapet wall in the remaining portion mark A, B, C and D. I am of the opinion that if the plaintiff has failed to prove the said site plan exhibited as Ex. PW1/1, then the entire case of the plaintiff crumbled because the entire case of the plaintiff is based upon the said site plan Ex. PW1/1 particularly when the MCD has taken the stand categorically in the written statement that against the unauthorized construction at the second floor, demolition action was already taken and no fresh construction was being done by the defendants.
In the light of the above discussion, I have no hesitation to hold that the plaintiff has utterly failed to prove issues no.4 and 5 in her favour and as such, both the abovesaid issues are decided against the plaintiff.
Relief.
In the light of my findings upon the issues no.4 and 5, the suit of the plaintiff is hereby dismissed but with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 16th day of February, 2012. JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.