Delhi District Court
S/O Late Sh. Tola Ram vs Sh. Kuldeep Singh on 8 May, 2018
MCA No. 03/16 dated 08.05.2018
IN THE COURT OF MS. VANDANA,
SCJ Cum RC (NORTH), ROHINI COURTS, DELHI.
In the matter of:-
SH. SUBHASH WADHWA
S/o late Sh. Tola Ram,
R/o BK-44, West Shalimar Bagh, Delhi-110088
.......APPELLANT
VERSUS
1. SH. KULDEEP SINGH
S/o Sh. Baba Resham Singh,
R/o Chikpaki, Tehsil Fazilka, District Forozpur, Punjab,
2. SH. GURMEET SINGH
S/o Sh. Baba Resham Singh,
R/o Chikpaki, Tehsil Fazilka, District Forozpur, Punjab
3. SH. BABA RESHAM SINGH,
R/o Chikpaki, Tehsil Fazilka,
District Forozpur, Punjab
............Respondents
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MCA No. 03/16 dated 08.05.2018
ORDER / JUDGMENT
1. New MCA No. : 03/16
2. Under Section : MCA
3. Date of Institution : 02.07.2014
4. Date of Final Order : 08.05.2018
5. Final Order : Dismissed
This is an appeal against the order dated 13.05.2014 passed by Ms. Prabhdeep Kaur, Ld. Civil Judge, West-05, Tis Hazari, courts whereby the application under order 39 rule 2 A CPC of the plaintiff / appellant herein, in suit no. 29/11 was dismissed.
The brief facts required for the disposal of the appeal are as under:-
1. Appellant had filed the suit for perpetual injunction against the respondent pleading that the appellant is the owner of the lands in village Mamoorpur situated at Khasra no. 48/20 hereinafter referred as suit land. It has been further stated that the appellant had purchased the said land in which he had got the names of the respondents no. 1 and 2 added being a follower of respondent no. 3, but, respondent raised the objection alleging that it was the appellant who had taken away the title deeds and got his name inserted in the said deed. It has been further averred that vide order dated 29.10.2001 both the parties were directed to maintain status quo in respect of construction of Subhash Wadhwa VS. Kuldeep page no. 2/6 MCA No. 03/16 dated 08.05.2018 the suit property till further orders, however, disobeying the court order, the respondent raised construction over the suit property. Therefore, the appellant filed an application under order 39 rule 2 A which was dismissed by the Ld. Trial Court. Hence, the present appeal has been preferred alleging that the Ld. Trial Court has grossly erred in dismissing the said Application as there was an admission made by the respondent no. 1 to 3 that the officials of the Delhi Development Authority had demolished the bathroom as well as the generator room. It has been further alleged that the Ld. Trial Court has failed to consider the admission of respondent no. 1 to 3 with respect to raising of boundary wall by them.
2. The grounds raised by the appellant were strongly opposed by the respondent no. 1 to 3 stating that no breach of order dated 29.10.2001 was made by them and the application under Order 39 Rule 2-A is a frivolous one and therefore it is liable to be dismissed.
3. It was further argued that the boundary wall of the premises in question was very much there before the date of or- der dt. 29.10.2001 and no constructions in the premises in ques- tion was raised by the respondent no. 1 to 3. Thereafter, on 28.01.2002, the official of the DDA demolished the bathroom as well as the generator room. It was also argued that in order to protect the possession, boundary wall was further raised and ex- cept that nothing has been constructed in between the boundary wall. Therefore, the order dt. 29.10.2001 remains intact.
4. Arguments heard. Trial court record perused.
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5. The relevant portion of the order dated 29.10.2001 has been reproduced as under:-
6. "WS/reply filed by the defendant no. 1 to 3 and application under Order 7 Rule 11 CPC filed by the defendant no. 1 to 3. Copy given. Docu- ments filed by the defendants. Heard. In facts and circumstances of case, both the parties are directed to maintain status quo in respect of construction regarding the property in dispute till further orders. This status quo order does not bind the DDA in any manner and DDA is at liberty to take action as per law."
7. The ingredients of Order 39 Rule 2-A CPC are as un- der:-
(i) Disobedience of any objection granted or other order made under Order 39 Rule 1 & 2 CPC.
(ii) The violation/disobedience was willful and inten-
tional.
8. It is an admitted case that DDA had passed the de- molition order dt. 10.10.2001 and the DDA had already demol- ished the unauthorized construction as in the order dated 29.10.2001 there was no restriction upon DDA for any action/the execution of demolition order.
9. With respect to the alleged fresh unauthorized con- structions raised by the respondents despite the order dt.
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29.10.2001, it was the appellant to prove the same allegation. It was incumbent upon the appellant to prove that the respondents have willfully violated order dated 29.10.2001, however, as it has been rightly observed by the Ld. Trial Court that "the appellant did not enter into the witness box to prove the said alle- gations, hence, the appellant remained fail to prove the ingredients of Order 39 Rule 2-A CPC. Further, nothing has come on record that after the demolition order any fresh construction was raised by the respondents".
10. The primary object of the provision under order 39 rule 2 A is not to punish a person, who has disobeyed the order of injunction, but to enforce the order. In the present case, the appropriate authority has already taken the action as per their rules and norms and admittedly the unauthorized construction had been demolished just after passing the order dated 28.01.2002.
11. With respect to the wall, it has been alleged by the respondents that the said wall was further raised in order to pro- tect the possession. It was also submitted by counsel for the re- spondent that no other construction on the suit land / premises was raised. This fact could not be refuted by the appellant.
12. In view of the above reasoning, I do not find any im- propriety or improper assessments of facts and documents war- ranting for inference in such findings. Therefore, I find no merits in the present appeal, hence, dismissed.
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MCA No. 03/16 dated 08.05.2018
TCR be sent back to the concerned court.
Appeal File be consigned to record room after due compliance.
Announced in the Open Court on 08.05.2018 (VANDANA) SCJ-cum-RC (North) Rohini Courts, Delhi/08.05.2018.
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