Delhi District Court
Vasudha Cghs Ltd vs Kapil Mehta And Ors on 17 March, 2025
IN THE COURT OF JSCC/ASCJ/GUDN. JUDGE NORTH,
ROHINI COURTS, DELHI
Presided by: Nitish Kumar Sharma.
SCJ No.153/25
VASUDHA CGHS LTD.
........Plaintiff
VERSUS
KAPIL MEHTA AND ORS.
......Defendants
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
ALONG WITH INTERIM RELIEF OF TEMPORARY &
MANDATORY INJUNCTION
ORDER
1. Vide this Order I shall dispose off an application of defendant no.1-4 U/o VII Rule 11 CPC for rejection of plaint.
Brief facts of the present case as per plaint are -
(a) That the Plaintiff is a Registered Co-operative Group Housing Society (CGHS) and has 169 Flat Members. It is averred that the roles, responsibilities and functions of the plaintiff society are performed by the elected Management Committee of the Society and are regulated by the provisions of Delhi Cooperative Societies Act, 2003 and Delhi Cooperative Societies (DCS) Rules, 2007. It is averred that one of the major responsibility of the management Digitally signed NITISH by NITISH KUMAR KUMAR SHARMA SHARMA Date: 2025.03.17 16:34:08 +0530 SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 1 of 8 committee Under Rule 89(5) and 89(6) of the DCS Rules, 2007 is to prevent the unauthorised construction /encroachment in the common area of the society.
(b) It is averred that the defendant no.1 to 5 are residents of the plaintiff society. It is averred that on 07.09.2024 two residents of the plaintiff society made a joint complaint to the plaintiff that there was a proposal of defendant no.1-5 to erect a lift in their building blocking the free passage and open air breathing space and natural light of their flats.
(c) That the plaintiff issued a general notice dated 12.09.2024 informing all members that no permission for lift installation has been taken by any member of the society. It is averred that despite issuance of notice dated 08.10.2024 the defendant no.1-5 have not submitted the complete file regarding MCD permission for lift installation. It is averred that without providing complete file the defendant no.1 and 2 made illegal attempt of encroaching upon common areas of the society by illegally trespassing the labour in the society and initiated drilling ground.
(d) It is averred that the suit premises i.e. common passage on which the Defendants No.1 to 5 trying to install the lift would affect the ingress and exgress of the members residing in the building block and would also be dangerous for human life.
Digitally signed by
NITISH NITISH KUMAR
KUMAR SHARMA
Date: 2025.03.17
SHARMA 16:34:15 +0530
SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 2 of 8
(e) It is stated that defendant (1 - 5) had obtained permission
from MCD and defendant No.6 had granted approval without site inspection & in violation of guidelines.
Hence this suit.
2. By way of present application U/o 7 Rule 11 CPC defendants have stated that the plaintiff has filed a false case against the defendants as the cause of action have never arisen in the favour of the plaintiff and against the applicants/defendant. It is stated that the suit of the Plaintiffs is liable to be dismissed in view of the fact that no relief of declaration is sought by the plaintiff qua the Permission granted by the defendant No.6 on 03.09.2024 and the aforesaid relief cannot be granted by this Hon'ble Court in view of the mandate of the section 347 of the Delhi Municipal Corporation Act 1957 as the jurisdiction to examine legality of the said permission vests with the Appellate Tribunal MCD and this Hon'ble Court has no jurisdiction to examine the legality of the said permission as per the DMC Act 1957 and the same has been held by the Hon'ble Apex Court as well as the Hon'ble Delhi High Court in catena of the judgments. It is further averred that there is no authorisation letter in the name of plaintiff no.1 and as such the suit itself has not been properly filed.
3. It is further submitted that under these circumstances, the plaintiffs are not entitled for the relief claimed therein and thus the suit filed by the plaintiffs is not maintainable. Thus the plaintiff has no locus-standi to file and institute the present suit against the defendants as the same is gross abuse and misuse of process of law.
Digitally signed by
NITISH NITISH KUMAR
KUMAR SHARMA
Date: 2025.03.17
SHARMA 16:34:21 +0530
SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 3 of 8
4. It is prayed that the present application may kindly be allowed and reject the plaint of the plaintiff under the provisions of the order 7 Rule 11 of CPC.
5. Per contra, Ld. Counsel for plaintiff submits that the present application filed by the Defendants No.1 to 4 is nothing but an abuse of process of law and the same is not tenable and is liable to be dismissed. It is stated that the present application filed by the Defendants No.1 to 4 does not fulfill the ingredients of Order 7 Rule 11 CPC and has been filed by defendants only to harass the Plaintiffs and to delay the proceedings and hence, is not maintainable and is liable to be dismissed. It is argued that plaintiff no.1 is president of the society and authorization can be filed during the proceedings. It is argued that non-filing of authorization letter is not material irregularity and can be corrected.
6. I have heard the arguments advanced by Ld. counsels for parties and perused the record.
7. As far as provisions U/o VII rule 11 CPC are concerned, the law is well settled that only the contentions as raised in the plaint are to be seen and the defence of defendants, if any, cannot be considered at that stage. Reliance could also be placed on the judgment of Hon'ble Supreme Court in case titled as Saleem Bhai and Others Vs. State of Maharashtra and others, (2003) SCC 557, in which the Hon'ble Court has held that :-
NITISH Digitally by NITISH signed KUMAR KUMAR SHARMA Date: 2025.03.17 SHARMA 16:34:27 +0530 SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 4 of 8 "A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage .............."
In Bhau Ram vs. Janak Singh & Ors. 2012(6) SCALE 530, the Hon'ble Supreme Court re-affirmed the above proposition of law in following words :-
"The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant."
8. I have considered the grounds taken by both the parties and perused the record.
9. At the outset, it is to be noted that vide present suit, the plaintiffs have sought following relief(s):-
a. Permanent and Mandatory injunction: to direct the defendant no.6 and 7 not to allow defendant no.1 to 5 to encroach upon the common area of plaintiff society without complete compliance of the norms of applicable lift policy and applicable law. Digitally signed NITISH by NITISH KUMAR KUMAR SHARMA SHARMA 16:34:32 Date: 2025.03.17 +0530 SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 5 of 8 b. Ad-interim exparte temporary and manadatory injunction restraining defendant no.1-5 from doing any construction for lift installation in the plaintiff society.
10. Now, it is evident from the plaint itself that sanction/permission for installation of lift was granted by MCD.
11. Without challenging the sanction/permission granted by MCD to the defendants no. 1-5 on 03.09.2024, the plaintiffs herein are seeking reliefs in the form of injunction to restrain the defendants from installing the lift in the common passage area. Now, till the NOC/ sanction granted by MCD vide permission letter dated 03.09.2024 continues to be legally valid, there can not be any illegality in the construction being raised by the defendants for the purposes of installation of lift and further, till such sanction is legally valid, it can not be said there is violation of any right of the plaintiff and as such, there can not be any cause of action.
12. It has been averred in the plaint that the sanction obtained by defendant no. 1-5 is illegal as guidelines were not followed by MCD in granting such permission and no site inspection was done. Though, the plaintiff has not sought relief of declaration with respect to sanction/permission granted by MCD directly, yet the plaintiff has challenged the same indirectly by seeking the relief of injunction to the effect that no construction be raised despite such sanction/permission. In the considered opinion of this court, the same is not permitted.
Digitally signedNITISH by NITISH KUMAR KUMAR SHARMA Date:
SHARMA 2025.03.17 16:34:38 +0530 SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 6 of 8
13. Ld. Counsel for plaintiff argued that the civil court is equipped with the jurisdiction to decide upon the controversy involved in the present case as no guidelines were followed by MCD while granting sanction/permission and no physical inspection of the site was done.
14. At this stage, it is relevant to refer to decision of Hon'ble High Court of Delhi passed in W.P.(C) 15788/2023 & CM APPL. 63562/2023 titled as Sudha Ramanathan vs Municipal Corporation Of Delhi (MCD) wherein it was observed as under:
"4. I am of the view that a challenge to permission granted for installation of a lift under the policy is in the nature of sanction of erection of a building or the execution of a work under Section 336 of the Delhi Municipal Act, 1957 ["the Act"]. Such sanction is appealable before the Appellate Tribunal for Municipal Corporation of Delhi ["ATMCD"] under Section 347(B) of the Act.
5. It may be mentioned that these provisions have been extended to cases of installation of mobile towers on the roofs of buildings by the judgment of this Court in W.P.(C)3267/2010 [Cellular Operators Association of India & Ors. vs. Municipal Corporation of Delhi] and connected matters, wherein temporary structures/towers on rooftops for providing Cellular Basic Mobile Phone services have been held to fall within the definition of "building" under the Municipal Statutes and all provisions of the Municipal Act and bye-laws have been held to be applicable. Further, by an order of a Coordinate Bench dated 11.04.2023 in W.P.(C) 3113/2022 [Sh. Jai Prakash Gupta vs. North Delhi Municipal Corporation and Ors.], the petitioner was relegated to Digitally signed NITISH by NITISH KUMAR KUMAR SHARMA Date: 2025.03.17 SHARMA 16:34:44 +0530 SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 7 of 8 alternative remedies in a challenge to the installation of a mobile tower.
6. The reasoning of the aforesaid judgments applies a fortiori to installation of lifts within the structure of the building."
15. Thus, what transpires from the above is that sanction granted by MCD can be challenged before Appellate Tribunal, MCD u/s 347B(f) and as such this court does not have the jurisdiction to examine the legality of the sanction/permission granted by MCD in view of the bar created by Section 347E of the DMC Act.
16. Since, no cause of action against installation of lift can exist till the sanction/permission granted by MCD is legally valid and as legality of the sanction granted by MCD can not be examined by this court, the plaint of the plaintiff is liable to be rejected u/o 7 rule 11(a) read with rule 11(d) CPC. The application of the defendant no. 1- 4, accordingly stands allowed and the plaint of the plaintiff stands rejected.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance. Announced in the open court on 17.03.2025.
Digitally signedNITISH by NITISH KUMAR KUMAR SHARMA SHARMA Date: 2025.03.17 16:34:51 +0530 (Nitish Kumar Sharma) JSCC/ASCJ/GUDN. JUDGE North Rohini, Courts,Delhi/17.03.2025 SCJ No.153/25 Vasudha CGHS Ltd. Vs Kapil Mehta & Ors. Page No. 8 of 8