Delhi District Court
Sh. Sukhdev Singh vs Sh. Tulsi Ram Yadav on 29 September, 2010
Sukhdev Singh v. Tulsi Ram Yadav & Ors.
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No.2418/08
Unique Case ID No.02401C0210912001
Sh. Sukhdev Singh
S/o Sh. Raja Ram
R/o House no.MT-31/2,
Durga Mohalla, Bajeet Nagar,
Anand Parbhat,
Karol Bagh,
New Delhi - 110005. ......Plaintiff
Versus
1. Sh. Tulsi Ram Yadav
1a. Sh. Rajesh Kumar Yadav
S/o Sh. Tulsi Ram Yadav
1b. Sh. Rajinder Kumar Yadav
S/o Sh. Tulsi Ram Yadav
All R/o T-450, Gali No.21,
Durga Mohalla, Bajeet Nagar,
Anand Parbhat,
Karol Bagh,
New Delhi - 110005.
2. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi - 110006.
3. Deputy Commissioner (Building Department)
Municipal Corporation of Delhi,
Karol Bagh Zone,
Anand Parbhat,
Karol Bagh,
New Delhi - 110005.
.....Defendants
Date of institution of the suit : 22.11.2001
Date of reserving judgment : 16.09.2010
Date of pronouncement : 29.09.2010
JUDGMENT
Suit no. 2418/08 1/22
Sukhdev Singh v. Tulsi Ram Yadav & Ors.
1. The plaintiff, through his Attorney Sh. Raja Ram filed a suit against the defendants for a decree of mandatory injunction directing the defendants to remove the encroachment from the public land measuring 7' width x 35' length towards the main road in front of the property no.T-450, Gali no.21, Durga Mohalla, Baljeet Nagar, New Delhi (Hereinafter referred as 'the suit property') and further, to remove unauthorized construction in the suit property.
2. The case set out in the plaint is that the plaintiff is the owner of the property no.MT-31/2, Gali no.21, Durga Mohalla, Baljeet Nagar, New Delhi. The plaintiff's property is adjacent to the suit property. According to the plaintiff, the defendant no.1 has encroached upon public land/road 7' width x 35' length towards the main road as shown in red colour in the site plan and constructed three storey-ed building without sanctioned plan or permission of the M.C.D. as shown in green colour in the site plan. The said unauthorized construction is dangerous to the plaintiff, neighbours, passer-by in particular and public in general and further, infringed their easement-ary right of light and air and access to their properties. The plaintiff sent notice dated 12.08.1999 and 02.09.1999 to the defendants. The plaintiff sent complaints dated 31.12.1999, 11.05.2000, 16.06.2000, 20.06.2000 and 18.07.2000. The suit property was booked for unauthorized construction. The defendant no.2 and 3 had punctured the said unauthorized construction on 25.05.2000.
3. The case of the plaintiff is that the defendant no.2 and 3 in collusion with the defendant no.1 instead of removing the said unauthorized construction and encroachment merely punctured the suit property and therefore, the plaintiff sent complaints to the concerned authorities vide complaint dated 04.09.2000 and 30.10.2000. The plaintiff has visited the defendant no.2 and 3 for removal of the said unauthorized construction and encroachment but they have not taken any action. Therefore, the plaintiff filed the Suit no. 2418/08 2/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
present suit for mandatory injunction against the defendants.
4. On being served with the summons of the suit the defendant no. 1 appeared and filed his written statement on 24.04.2002.
5. In his written statement, the defendant no.1 raised preliminary objection that the suit was bad for mis-joinder of the parties. It was stated that the defendant no.1 was not the owner of the suit property.
6. Vide order dated 03.07.2002, the defendant no.1a & 1b/owners of the suit property were impleaded to the array of the defendants on the application of the plaintiff under Order 1 Rule 10 CPC.
7. In their separate written statement, the defendant no. 1a and 1b controvert-ed the averments made in the plaint and raised preliminary objection that the suit is without cause of action. The plaintiff has not approached the court with clean hand and concealed material facts from the court. The plaintiff had filed a similar suit against the defendants in respect of the suit property. The suit is barred by the principles of res-judicata. The plaintiff filed the suit with malafide intention to extort money from the defendants. The defendants had raised their voice against the plaintiff for illegally running a dyeing unit (Bhatti) in a residential area and filed a civil suit for permanent and mandatory injunction and the plaintiff's premises was sealed pursuant to the direction of the court in the suit.
8. In the written statement, the defendant no.3/M.C.D. raised preliminary objection that the suit is not maintainable for want of statutory notice under Section 477/478 of the DMC Act. The suit is without cause of action against the defendant no.3. It is stated that the suit property is booked for unauthorized construction vide File no.B/UC/KBZ/2000/39 in the form of four shops at Ground Floor (front side), room at rear side and rooms at First Floor and Suit no. 2418/08 3/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
Projections over the municipal land. The demolition order was passed on 25.02.2000. The demolition action was fixed on 25.02.2000 but could not be effected due to hindrance created by local people at site. The demolition action will be taken subject to availability of police force.
9. In the replication to the written statement of the defendant no.1, 1a and 1b, the plaintiff controvert-ed the contentions and re- affirmed the averments of the plaint. It is denied that the plaintiff had filed a similar suit against the defendants in respect of the suit property. It is stated that the plaintiff had filed a suit for permanent injunction and mandatory injunction against the defendant no.1 in which he had given the statement that he will close the door opened by him and accordingly, the said suit was disposed of.
10. In the replication to the written statement of the defendant no. 2 and 3/MCD, the plaintiff stated that the MCD has not taken any action despite the fact that the suit property was booked on 14.02.2000 and demolition order was passed on 25.05.2000.
11. On the pleadings of the parties, the following issues were framed on 27.05.2004:
1. Whether the defendant no.1 raised any unauthorized construction which is liable to demolished by the decree of mandatory injunction?
OPP
2. Whether the suit of the plaintiff is without cause of action?
OPD
3. Whether the plaintiff has not come to the court with clean hands? OPD
4. Whether the suit is not maintainable in view of Section 477/478 of the DMC Act?
OPD
5. Whether the suit is not maintainable in view of Section 4suit is not maintainable in view of Section 41(h) and (i) of the Specific Relief Act?
Suit no. 2418/08 4/22Sukhdev Singh v. Tulsi Ram Yadav & Ors.
OPD
6. Whether the plaintiff is entitled to any relief, if so, what relief.
12. In the evidence, the plaintiff appeared as PW-4 in support of his case and examined Sh. Raja Ram/his attorney as PW-1. PW-2 brought record from police station Patel Nagar. PW-3 is office-in- charge, Building Department, Karol Bagh Zone, MCD. The defendant no.1a and 1b appeared as DW-2 and DW-1 and examined sh. Babu Lal/their neigbour in support of their case.
13. PW-1 is the father and Attorney of the plaintiff. In his examination-in-chief by way of affidavit, he testified the facts pleaded in the plaint. He proved Special Power of Attorney Ex.PW-1/1 executed by the plaintiff in his favour. He filed site plan of the suit property Ex.PW-1/2. PW-1 proved notice dated 12.08.1999 to the defendant no.1, defendant no.2 and 3 and S.H.O. P.S. Patel Nagar Ex.PW-1/3, Postal Receipts Ex.PW-1/4 to Ex.PW-1/7, AD Cards Ex.PW-1/8 to Ex.PW-1/9 and Returned Registered Envelope with AD Card Ex.PW-1/10 to Ex.PW-1/11. PW-1 proved notice dated 02.09.1999 Ex.PW-1/12, Postal Receipts Ex.PW-1/13 to Ex.PW-1/16, AD Cards Ex.PW-1/17 to Ex.PW-1/19 and Returned Registered AD Envelope with AD Card Ex.PW-1/20 to Ex.PW-1/21. He filed complaint dated 31.12.1999 Ex.PW-1/22, complaint dated 11.05.2000 Ex.PW-1/23, complaint dated 16.06.2000 Ex.PW-1/24, Application dated 20.06.2000 to the MCD for issuance of notice and demolition order in respect of suit property Ex.PW-1/25, complaint dated 18.07.2000 to the office of DC (Karol Bagh), MCD Ex.PW-1/26, and complaint dated 04.09.2000 to the DC (Karol Bagh Zone), MCD Ex.PW-1/27. He proved complaint dated 30.10.2000 to the Ministry of Urban Development Ex.PW-1/28 and certified copy of order dated 11.08.1999 and 28.08.2000 in the suit no.245/99 Ex.PW-1/29 to 30.
14. In his cross-examination, PW-1 stated that he was residing at MT-31/2, Baljit Nagar, New Delhi at the time of filing of the affidavit. He stated that he is residing at 3305, Ranjit Nagar, Pusa Gate, New Suit no. 2418/08 5/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
Delhi for the last 50 years. He stated that the plaintiff is the owner of the property no.MT-31/2, Baljit Nagar, New Delhi. He stated that he has not filed the ownership documents on record. He stated that they are doing the work relating to repair of pressure cooker at MT-31/2, Baljit Nagar, New Delhi. He stated that he had filed a suit for restraining the defendant no.1 from opening a door towards 3'9" Wide Street. He stated that the status of the suit property at the time of filing of the said suit was same as shown in the site plan Ex.PW-1/2. He stated that he had not compromised the said suit.
15. In his cross-examination, PW-1 further stated that the said suit was disposed of on the undertaking of the defendant no.1 that he would not open the door towards the street. He stated that the defendant no.1a had filed a suit against the plaintiff for restraining him from carrying his work at MT-31/2 as it was causing pollution. He denied the suggestion that the said premises was sealed pursuant to the orders of the court. He stated that the Pollution Department had sealed the said premises. He stated that the seal was opened after 4 months. He stated that he was there when the construction work had started and construction material was brought. He stated that the defendants had opened the door towards the street after extending their house by 7 feet x 35 feet on 27.04.1999. He stated that said door towards the street is closed before the last date fixed in the said suit. He stated that the encroachment is still causing public nuisance and vehicles cannot pass smoothly. He stated that he had made the complaints after consulting his son. He stated that he had received written complaints from local people. He stated that he has not brought the said complaints.
16. PW-1 stated that on 25.05.2000, the MCD punctured the suit property. He stated that he complained to the MCD on 31.12.1999. He stated that the punctured portion has been repaired by the defendants but the railing is broken. He stated that he has seen the punctured portion which has been repaired by the defendants. He Suit no. 2418/08 6/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
stated that the punctured portion is visible from the road. He denied the suggestion that the MCD has already demolished the alleged unauthorized construction raised by the defendants. He denied the suggestion that all house on western side of the road are parallel to eastern side of the road and there is no encroachment by the defendants. He stated that no portion of his property touch the road encroached upon by the defendants. He stated that he has not filed any complaint regarding the repair of the punctured portion. He denied the suggestion that the MCD has already taken action against the unauthorized construction.
17. PW-1 was cross-examined by the defendant no.2/MCD. In his cross-examination, he stated that the illegal construction already booked by the MCD. He stated that defendant no.1 has encroached upon the public land and therefore, the defendant no.2 had carried out action against the unauthorized construction on the encroached land. He stated that entry to his residence is through point D in the site plan Ex.PW-1/2 whereas the defendant no.1 encroached upon the public land towards the main road. He stated that he had given a notice to the MCD before filing of the suit.
18. PW-2 is Head Constable from P.S. Patel Nagar, Delhi. He had brought the D. D. Entry no.30 dated 25.05.2000. He stated that the said entry was lodged in respect of demolition of the suit property.
19. PW-3 is the Office-in-charge from Building Department, Karol Bagh Zone, MCD. He exhibited the letter dated 18.02.2000 issued by the MCD as Ex.PW-3/A.
20. The plaintiff (PW-4) filed his examination-in-chief by way of affidavit. In his affidavit, he deposed the facts averred in the plaint. In his cross-examination, he stated that in 1999, a suit was instituted against the defendants. He stated that his father is staying with his family at H. No. 3305, Ranjit Nagar for the last Suit no. 2418/08 7/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
30-35 years. He stated that he is the owner of the house no.MT-31/2, Baljit Nagar, Delhi. He stated that he has not filed any document w.r.t. his ownership. He stated that the defendant no.1 had filed a suit against him alleging therein that he was causing pollution at MT-31/2. He stated that house was sealed before filing of the suit. He denied the suggestion that he had broken the seal of his house. He stated that the Government had passed order and therefore, he had opened the seal. He stated that he has not filed any ration card, Identity card as proof of his residence. He stated that his voter card bears House no.3305 and Ration card bears MT-31/2.
21. PW-4 further stated that the MCD demolished the PARCHATTI and portion of the suit property after filing of the suit. He stated that complaint Ex.PW-1/21 and Ex.PW-1/22 were made by his father. He stated that the defendant no.1 had given a statement in the earlier suit that he would not open the shutters of his shop towards his passage. He stated that Ex.PW-1/2 is correct. He stated that encroachment and unauthorized construction has been shown in red colour in the site plan Ex.PW-1/2. He denied the suggestion that the encroachment shown in the site plan Ex.PW-1/2 is not on the side of his passage. He stated that the door of the suit property does not open towards his passage shown in the site plan Ex.PW-1/2. He stated that the traffic gets jammed and road gets blocked due to encroachment shown in red in the site plan Ex.PW-1/2 which causes inconvenience to him. He stated that the portion shown in red colour in the site plan Ex.PW-1/2 was encroached in 1999. He stated that Ex.PW-1/29 was filed by his father. He stated that the defendants raised unauthorized construction in June-July, 1999. He denied the suggestion that the portion shown in red in the site plan Ex.PW-1/2 is not the encroachment but the extended portion of PARCHATTI. He denied the suggestion that the portion shown in red colour in the site plan Suit no. 2418/08 8/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
Ex.PW-1/2 is still lying punctured and demolished as left by the MCD. He stated that the said portion was repaired in the year 2000. He denied the suggestion that the suit was filed due to enmity as the defendants got his property sealed. He stated that he has seen the repaired portion of broken CHAJJA. He stated that the repaired portion is white washed. He stated that he has not filed any complaint regarding repairing of the demolished portion of the suit property.
22. In their evidence by way of affidavits, the defendant no.1a and 1b stated that the plaintiff has not suffered in any manner with the alleged construction carried out by them. The plaintiff got PARCHATTI and a room on the second floor demolished and the said portion is lying as it is. They stated that the alleged unauthorized construction and encroachment do not cause any hindrance to the plaintiff.
23. In their cross-examination, they stated that they are not aware of measurement of the suit property. They stated that the suit property was punctured by the MCD. They stated that only CHAJJA of the first floor of the suit property was punctured by the MCD. They stated the suit property consists of Ground Floor and the First Floor. They stated that they there is no unauthorized construction in the suit property. They stated that the suit property is quite old. They stated that the suit property is assessed by House Tax Department. They stated that the house of the plaintiff is on the back side of the suit property. They stated that the plaintiff's property was sealed by the Pollution Board pursuant to court orders. They stated that they have no completion certificate qua the suit property.
24. DW-3 is running a shop opposite to the suit property. He stated in his evidence by way affidavit that the suit property is in existence for the last 25 years and no fresh construction has been raised. He stated that the plaintiff's property is not affected by the Suit no. 2418/08 9/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
alleged unauthorized construction and encroachment. He stated that the defendants have not made any encroachment nor raised any unauthorized construction.
25. In his cross-examination, DW-3 stated that he is running the shop for the last 22 years. He stated that when he had joined the shop, the premises of the defendant no.1 was already in existence. He stated that the defendant no.1's property was constructed up to 1st Floor. He denied the suggestion that he was not aware about the status of the defendant's property. He could not state whether the MCD had taken any demolition action against the suit property. He stated that he was not aware whether the defendant has sold his property. He stated that he could not say whether the suit property is built upon public land measuring 35 x 7 feet. He stated that the suit property consists of ground floor and first floor and his previous statement that the suit property consists of Ground floor only is false.
26. I have heard arguments of Sh. S. S. Sisodia, Adv. for the plaintiff and Sh. Rakesh Bhalla, Adv. for the defendant 1, 1a and 1b and considered written submissions filed by them.
27. On careful assessment of the evidence on record in the light of the pleading and written submissions, issue wise finding is as under:
ISSUE NO.1
28. Ld. Counsel for the plaintiff argued that the testimony of PW-1 and PW-4 that the defendants had raised unauthorized construction in the suit property remained un-assailed. He argued that the defendant no.2/MCD has clearly stated in the written statement that the suit property was booked for unauthorized construction vide File No.B/UC/KBZ/2000/39 dated 14.02.2000 in the form of four Suit no. 2418/08 10/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
shops at the Ground floor (front side) and room in the rear side and also rooms at First Floor and projections over the municipal land. He argued that the defendant no.2/MCD stated in its written statement that demolition order was passed on 25.02.2000 but the demolition could not be carried out on account of resistance by local people. He argued that PW-3 has proved Ex.PW-3/A which is the show cause notice dated 18.02.2000 u/s 343 of the DMC Act. He argued that the defendants had objected to the mode of proof of the said document but not led any evidence to prove the contrary. He argued that PW-1 has proved various complaints Ex.PW-1/1 to Ex.PW-1/30 to the concerned authorities against the unauthorized construction and encroachment in the suit property. He argued that the MCD sought police help for demolition of unauthorized construction in the suit property vide D.D.Entry no.30 dated 25.05.2000. He argued that the defendants have taken the plea that the MCD has already demolished the unauthorized construction in the suit property. He argued that the DW-1 and 2 have admitted in their cross-examination that they have no sanction plan or completion certificate. He argued that decree for mandatory injunction be passed as the MCD merely punctured the suit property and failed to remove the unauthorized construction.
29. Ld. Counsel for the defendant no.1, 1a and 1b argued that the suit has already become infructous as the MCD has already booked the suit property and taken action against the suit property. He argued that the defendants have admitted the facts regarding booking of the suit property in respect of one room on the first floor and on the para-fit of the suit property. He argued that the said construction had already been demolished by the MCD and the linters of the suit property are still lying in the demolished condition. He argued that there is no cause of action in favour of the plaintiff. He argued that there is no encroachment over the public land and the MCD has also not stated to this effect. He argued that the plaintiff in his cross-examination has admitted that Suit no. 2418/08 11/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
the alleged illegal construction was booked by the MCD and necessary action was taken. He argued that PW-1 and PW-4 stated in their cross-examination that the demolished portion was repaired by the defendants. He argued that the plaintiff neither pleaded the said facts in the plaint nor mentioned in his affidavit. He argued that the said fact was deposed to keep the cause of action alive. He argued that the defendants had not raised any unauthorized construction but carried out repairs and renovation of the suit property. He argued that the plaintiff made the false complaints and therefore, the MCD had taken action by demolishing the para- fit and roof of the room on the first floor. He argued that the defendants have not raised any unauthorized construction which is liable to be demolished by grating decree of mandatory injunction.
30. Onus to prove the issue no.1 was upon the plaintiff. It is the specific case of the plaintiff that the defendant no.1 had encroached upon the public land and constructed three storey-ed structure without sanctioned plan or permission from the MCD. The defendants in their written statement have not stated that they have constructed the suit property after obtaining sanctioned plan or permission from the MCD. The defendant no.1, 1a and 1b have not disputed the averments of the plaint that the suit property was booked and the MCD punctured the said unauthorized construction on 25.05.2000.
31. PW-1 has proved the notice dated 12.08.1999 Ex.PW-1/3 issued to the defendant no.1, the defendant no.2, the defendant no.3 and SHO P.S. Patel Nagar whereby the plaintiff had requested them to stop the illegal construction in the suit property and to remove the unauthorized construction in the suit property. The said notice was duly served upon the defendant no.2 vide Ex.PW-1/8. The defendant no.1 had avoided to receive the said notice as evident from the endorsement on the returned registered Envelope "Addressee not found despite several visits Ex.PW-1/11. PW-1 proved the notice dated 02.09.1999 Ex.PW-1/12 to the defendants. The defendant no.
Suit no. 2418/08 12/22Sukhdev Singh v. Tulsi Ram Yadav & Ors.
2 and 3 were duly served with the said notice vide Ex.PW-1/17 to
18. The defendant no.1 refused to receive the said notice as evident from returned registered Envelope Ex.PW-1/20. PW-1 and PW-2 categorically deposed in their evidence that the demolition squad of the defendant no.2 and 3 merely punctured the unauthorized construction on 25.05.2000. The defendant no.2/MCD stated in its written statement that the suit property was booked for unauthorized construction in the form of four shops at Ground Floor (front side) and a room on the rear side and rooms at the first floor of the suit property vide File no.B/UC/KBZ/2000/39 dated 14.02.2000 and demolition order was passed on 25.02.2000 after following due process of law. PW-3 exhibited the show cause notice dated 18.02.2000 Ex.PW-3/A under section under section 343 of the DMC Act. The defendants have objected to the mode of proof of the said document. The defendants have admitted the fact that the suit property was booked for unauthorized construction and demolition action was taken. According to the defendant no.2/MCD, the demolition action on 25.05.2000 could not be materialized due to resistance of local people. PW-2 proved that the MCD had approached the police station for police help on 25.05.2000 vide D.D.Entry no.30 dated 25.05.2000. PW-1 proved complaint dated 18.07.2000 Ex.PW-1/26 and complaint dated 04.09.2000 Ex.PW-1/27 to the MCD, complaint dated 30.10.2000 Ex.PW-1/28 to the Ministry of Urban Development for not demolishing the illegal construction.
32. The defendants have led no evidence that the suit property was constructed in accordance with sanctioned plan. DW-1 and DW-2 deposed that the PARCHATTI and the room on the first floor was demolished by the MCD. They have admitted in their cross- examination that the suit property was punctured by the MCD and only the CHAJJA of the first floor of the suit property was punctured by the MCD. They have admitted that they have no completion certificate from the MCD. They stated that the suit property is assessed to House Tax. They stated that the construction is quite Suit no. 2418/08 13/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
old. They have not proved extent of accommodation assessed to House Tax. PW-1 replied the suggestion of the defendants in affirmative that 'it is correct that on 25.05.2000, the MCD punctured the suit property.' He stated that the defendants repaired the punctured portion and the railing is still lying broken. He denied the suggestion that the MCD has already demolished the alleged unauthorized construction raised by the defendants. He denied the suggestion that the MCD has already taken action the unauthorized construction. PW-2 replied the suggestion of the defendants that 'it is correct that MCD demolished the PARCHATTI and a portion of the house in possession of the defendants. He stated that the demolished portion was repaired in 2000. He stated that portion shown in red colour in the site plan Ex.PW-1/2 was constructed in June-July, 1999.
33. From the evidence on record, it is evident that the defendant no.1 had raised unauthorized construction in the suit property in the year 1999. The construction in the suit property is not covered by any sanctioned plan. PW-1 made complaints against the unauthorized construction to the MCD vide complaint dated 12.08.1999 Ex.PW-1/3 and 02.09.1999 Ex.PW-1/12. It is further evident that the suit property was booked by the MCD. The MCD could not demolish the unauthorized construction and merely punctured the PARCHATTI and room at the first floor of the suit property on 25.05.2000. PW-1 made complaint against the said puncturing of the suit property vide complaint dated complaint dated 04.09.2000 Ex.PW-1/27.
34. The defendant no.2/MCD failed to take action against the unauthorized construction and therefore, the plaintiff filed the present suit for mandatory injunction on 22.11.2001. Contention that the plaintiff neither pleaded nor mentioned in his affidavit that the defendants have repaired the suit property is insignificant. Mere cosmetic or superficial action against the unauthorized construction cannot termed as removal of unauthorized construction. The Suit no. 2418/08 14/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
defendant no.2/MCD has failed to take action against the unauthorized construction in the suit property. Contention that the suit property was constructed in 1960 cannot be accepted. The defendants have not pleaded this fact in their written statement. Testimony of DW-3 cannot be believed. He deposed that he is running a shop opposite to the suit shop but he was aware about the action taken by the MCD for removal of unauthorized construction in the suit property and the status of the construction of the suit property.
35. In Smt. Sarla Devi v. H. L. Dua, 59 (1995) DLT 59; it was held that a citizen can approach the court of law for issuance of necessary directions to the officers of M.C.D. if the Corporation does not take action against unauthorized construction and shows negligence in discharging its statutory obligation as contained in Section 343 of the D.M.C Act.
36. In Anil Kumar Khurana v. M.C.D., 1996 (1) AD (DB) 749; Hon'ble High Court observed:
"The unauthorized construction and unauthorized user of residential buildings for commercial purposes in Delhi has gained alarming proportion and crossed all limits. At the very outset, I may state that these activities are against the inertest of the society and need to be dealt with firmly."
37. The plaintiff is seeking performance of statutory obligations of the defendant no.2. The court can issue appropriate directions to enforce the law and to ensure that MCD act in accordance with law.
38. In Chaturbhuj v. M.C.D., 37 (1996) DRJ 603; Hon'ble Delhi High Court held that a citizen can move the court for issuance of directions to the authorities to perform their statutory duties by taking appropriate action in accordance with law to demolish the unauthorized construction in the premises.
Suit no. 2418/08 15/22Sukhdev Singh v. Tulsi Ram Yadav & Ors.
39. In Krishna Kali Mallik v. Babulal Shaw & Ors., AIR 1965 Calcutta 148; it was held that illegal construction by the defendant neighbour materially affects the right to or enjoyment of the plaintiff's property, the defendant owes a duty and an obligation under the Statute not only to the Corporation as custodian of the owners of buildings but also to the plaintiff. This duly arises by implication under the Statute. If the defendant constructs a building according to a plan which is illegal, the adjoining owner has the right to ask for an injunction because there is an invasion of right to and enjoyment of property by the illegal construction and the defendant owes an obligation to the plaintiff to obey the law.
40. Accordingly, this court is of the opinion that the suit property was constructed without sanctioned plan. The defendant no.2/MCD failed to take appropriate action against the unauthorized construction in the suit property despite the fact that the suit property was booked and demolition action was planned. Mere puncturing of the CHAJJA and a room over the first floor of the suit property cannot be equated with the removal of the unauthorized construction. Unauthorized construction in the form of four shops at the ground floor (front side) and a room on the rear side and rooms at the first floor of the suit property are still in existence. Therefore, the defendant no.2/MCD can be directed to remove unauthorized construction in the suit property.
41. Accordingly, Issue no.1 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.2:
42. Onus to prove the issue no.2 was upon the defendants. The defendants in their written statement raised preliminary objection that the suit is without cause of action. Ld. Counsel for the defendants argued that the plaintiff had filed a pervious suit for Suit no. 2418/08 16/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
permanent and mandatory injunction against the defendants bearing suit no.245/99 for restraining the defendants from opening door of their shop towards the entrance of the plaintiff. He argued that the said suit was compromised as the defendant no.1 had given an undertaking that he would not open door of his shop towards the plaintiff's property. He argued that the plaintiff had not mentioned the fact of unauthorized construction in the said suit. He argued that PW-1 has admitted in his cross-examination that the status of the defendants' property was same as shown in the site plan Ex.PW-1/2 at the time of filing of the previous suit. He argued that the present suit is barred under Order 2 Rule 2 CPC. He argued that PW-1 and PW-4 deposed that the unauthorized construction was punctured by the MCD. He argued that there is no cause of action as the unauthorized construction in the form of one room at the first floor and PARCHATTI was booked and demolished by the MCD.
43. The Constitution Bench of the Supreme Court in Gurbux Singh v. Bhooralal (AIR 1964 SC 1810) held as under:
"As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under O. 2, R. 2, CPC can be established only if the defendant files in evidence, the pleadings in the previous suit and thereby proves to the Court, the identity of the cause of action in the two suits. It is common ground that the pleadings in C.S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O.2, R. 2, CPC. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion rightly, that without the plaint in the previous suit being on the record, a plea of a bar Suit no. 2418/08 17/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
under O. 2, R. 2, CPC was not maintainable."
44. M/s Bengal Waterproof Ltd. v. M/s Bombay Waterproof Manufacturing Company and anr., AIR 1997 SC 1398 held that:
"In view of the aforesaid authoritative pronouncement of the Constitution Bench of this Court the learned Trial Judge as well as learned single Judge of the High Court ought to have held that the plea raised by the defendants in the present case is barred at the threshold as the defendants had not produced on the record of the Trial Court the pleadings in the first suit. Thus there is a complete bar against the defendants from raising the bar of O. 2, R. 2 sub- rule (3), CPC against the plaintiff in the present case. It was further held that:
'In cases of continuous causes of action or recurring causes of action bar of O. 2, R. 2, sub-rule (3) cannot be invoked. In this connection it is profitable to have a look at S. 22 of the Limitation Act, 1963. It lays down that 'in the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues'.
45. O. 2, R. 2(3), CPC requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of O. 2, R. 2(3), CPC will not get attracted. The defendants have not filed the pleadings of the previous suit in evidence to prove the identity of the cause of action in the two suits. Thus, there is a complete bar against the defendants from raising the bar of O. 2, R. 2 (3), CPC.
46. Further, the plaintiff had filed previous suit no. 245/99 for an Injunction restraining the defendant no.1 from opening door of his shop towards the entrance of the plaintiff's property. The defendant Suit no. 2418/08 18/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
no.1 had given the undertaking in the said suit that he would not open any door towards the gali vide statement dated 11.08.1999 and further, the defendant no.1 made statement on 28.08.2000 that he had closed the door opened by him and thereafter, PW-1 made statement that he did not want to continue the suit. The cause of action for filing of the present suit for mandatory injunction for removal of the unauthorized construction in the suit property accrued to the plaintiff on account of failure of the defendant no. 2/MCD in taking appropriate action despite booking and passing of demolition order. The previous suit was filed on 10.08.1999. The MCD booked the unauthorized construction in the suit property on 14.02.2000 and merely punctured the said unauthorized construction on 25.05.2000. The demolition could not be effected due to hindrance by local people. PW-1 made complaints to the MCD vide complaint dated 20.06.2000 Ex.PW-1/25, 18.07.2000 Ex.PW-1/26 and 04.09.2000 Ex.PW-1/27 against the inaction of the MCD and merely puncturing the suit property instead of removing unauthorized construction. Therefore, the suit cannot be held barred under Order 2 Rule 2, CPC.
47. Contention that the MCD has already taken against the unauthorized construction has been discussed and rejected during the discussion of the issue no.1. Moreover, PW-1 and PW-4 have nowhere admitted that the MCD has already demolished the unauthorized construction in the suit property. They have deposed that MCD merely punctured the suit property and the defendants have repaired the said punctured portion. According to DW1 and 2, only CHAJJA of the first floor was punctured by the MCD. Unauthorized construction in the shape of four shops on the ground floor and a room on the rear side and rooms on the first floor of the suit property still exist in the suit property.
48. It is the admitted fact that the plaintiff is residing in the property adjacent to the suit property. Further, any citizen can Suit no. 2418/08 19/22 Sukhdev Singh v. Tulsi Ram Yadav & Ors.
move the court against unauthorized construction if the authorities are not responding as held in Anil Kumar Khurana v. M.C.D., Smt. Sarla Devi v. H. L. Dua and Chaturbhuj v. M.C.D. (supra). Contention that the plaintiff has not filed ownership documents and proof of residence is inconsequential. DW-1 and DW-2 have admitted in their depositions that the plaintiff property is adjacent to the suit property. The plaintiff has a locus standi to file the present suit. The plaintiff has a cause of action to file the present suit.
49. Accordingly, issue no.2 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.3:
50. Onus to prove the issue no.3 was upon the defendants. The defendants in their written statement contended that the plaintiff has not approached the court with clean hands.
51. Ld. Counsel for the defendants argued that the plaintiff filed the present suit due to enmity. He argued that the defendant no.1a had filed a suit no. 519/02 against the plaintiff for restraining him from carrying out industrial work in his premises as it was generating pollution. He argued that the property of the plaintiff was sealed pursuant to the orders of the court in that suit. He argued that the plaintiff admitted in his cross-examination that his premises was sealed by the Pollution Department. He argued that the present suit is an outcome of vengeance and animosity.
52. Enmity between the parties is not relevant for the decision of the issue of unauthorized construction in the suit property. It does not debar the plaintiff from seeking mandatory injunction against the unauthorized construction in the suit property. Accordingly, the issue no.3 is decided in favour of the plaintiff and against the defendants.
Suit no. 2418/08 20/22Sukhdev Singh v. Tulsi Ram Yadav & Ors.
ISSUE NO.4:
53. Onus to prove the issue no.4 was upon the defendant no. 2/MCD. The defendant no.2 in its written statement raised preliminary objection that the suit is not maintainable for want of statutory notice under Section 478 of the DMC Act. PW-1 proved the complaint dated 18.07.2000 Ex.PW-1/26 and complaint dated 04.09.2000 Ex.PW-1/27 to the MCD for removal of unauthorized construction in the suit property. Further, section 478 (3) saves the suit in which the only relief claimed is an injunction.
54. Accordingly, issue no.4 is decided in favour of the plaintiff and against the defendant no.2/MCD.
ISSUE NO.5:
55. Onus to prove the issue no.5 was upon the defendant no. 2/MCD. The defendant no.2/MCD in its written statement raised preliminary objection that suit is not maintainable under section 41(h) and (i) of the Specific Relief Act. The defendant no.2/MCD has not stated the alternate relief available to the plaintiff besides the present suit. The defendant no.2/MCD has not removed the unauthorized construction despite booking on 14.02.2000 and demolition order dated 25.02.2000. The defendant no.2/MCD merely punctured the suit property on the pretext of resistance by local people. The plaintiff made complaints on 18.07.2000 Ex.PW-1/26 and 04.09.2000 Ex.PW-1/27 to the MCD. The plaintiff had filed the present suit due inaction of the defendant no.2/MCD. The defendant no.2/MCD has not stated that the conduct of the plaintiff which disentites him from the relief in the present suit
56. Therefore, the issue no.5 is decided in favour of the plaintiff and against the defendant no.2/MCD.
Suit no. 2418/08 21/22Sukhdev Singh v. Tulsi Ram Yadav & Ors.
Relief:
57. In view of the finding on the issue no.1, the suit of the plaintiff for a decree of mandatory injunction against the defendants is decreed with costs. .
58. A decree for mandatory injunction is passed in favour of the plaintiff and against the defendants and the defendant no. 2 & 3 are directed to remove unauthorized construction in the form of four shops at Ground Floor (front side) and room in the rear side and rooms at First Floor and projection over the municipal land in the property no.T-450, Gali no.21, Durga Mohalla, Baljeet Nagar, New Delhi.
59. Decree sheet be drawn accordingly.
File be consigned to Record Room.
Announced in open court today the 29th September, 2010.
(SANJAY SHARMA) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 29.09.2010 Suit no. 2418/08 22/22