Delhi District Court
Sarla Gupta vs ) M/S. Anuratan Textile (P) Ltd on 25 February, 2021
Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr.
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 193/17 (OLD NO.21/17)
CNR NO.DLCT030004182017
In the matter of :
Sarla Gupta
W/o Sh. Hari Shankar
R/o Property No.1092, 2nd floor,
Kucha Natwa, Chandni Chowk,
Delhi - 110 006 ...PLAINTIFF
VERSUS
1) M/s. Anuratan Textile (P) Ltd.
Property No.1092, 1st Floor,
Shree Mahavir Market,
Kucha Natwa, Chandni Chowk,
Delhi - 110 006
Through Sh. Raju Gupta, Director
2) North Delhi Municipal Corporation
Civic Centre, J.L. Nehru Road,
Delhi - 110 002
Through its Commissioner ...DEFENDANTS
Date of institution : 23.01.2017
Date of judgment : 25.02.2021
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
SUIT NO : 193/17 (OLD NO.21/17) Pg 1 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr.
1. Vide this judgment, I shall dispose of a suit for permanent and mandatory injunction.
BRIEF FACTS OF THE PLAINT:
2. The necessary facts which are necessary for the disposal of the suit as alleged in the plaint are that the plaintiff is a law abiding citizen and with her family is residing at the property bearing No.1092, Kucha Natwa, Chandni Chowk, Delhi - 110 006 (hereinafter be referred to as 'said property'), on the second floor for more than 50 years. It is pertinent to mention that the said property is a very old construction of more than 70 years and still having the old bricks called "Lakori" in its walls. Defendant No.1 is in possession of four rooms on the first floor of the said property i.e. property bearing No.1092, Kucha Natwa, Chandni Chowk, Delhi - 110 006 (hereinafter be referred to as 'suit property') as shown in red colour in the site plan file by the plaintiff, which is being used for commercial purposes. The plaintiff noticed some cracks on her room wall and floor on around 12.01.2017 and when enquired came to know that defendant No.1 is getting some building repair work in his 4 rooms situated on the first floor of the said SUIT NO : 193/17 (OLD NO.21/17) Pg 2 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. property and objected to the defendant No.1 against the damage caused to the property of the plaintiff situated on the second floor but the defendant No.1 assured the plaintiff that he would repair the crack once his work is completed and the plaintiff kept silence at that time. That on 17.01.2017, the plaintiff noticed that the cracks became wider on the walls as well as on the floor of her room and some new and wider cracks surfaced on the load bearing walls of the building and on the staircase along with the shaking of the building. The plaintiff got frightened and while checking for the reason, the plaintiff was shocked to see that the defendant No.1 instead of repair, did illegal and fatal structural changes to the load bearing and partitioned walls of the 4 rooms under his possession and endangered the structural safety of the old building. Defendant No.1 had removed the partition walls of 2 rooms to make it one big hall and the load bearing wall of 12 inch were shaved to make it 4 inch wall so that an extra space of 8 inch could be utilized for their commercial purposes. The plaintiff objected and protested before the defendant No.1, that he is endangering the life of her and her family as if the partition walls are removed and load bearing walls are shaved, it make the base of the 2 nd floor very weak SUIT NO : 193/17 (OLD NO.21/17) Pg 3 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. as the construction of the building is very old and in the event of rain or a slight earthquake the building may collapse hence the act of the defendant No.1 is wholly illegal and endangered the life of the plaintiff and her family along with other occupiers in the building. The plaintiff finding no relief from the defendant No.1, lodged complaint with the MCD Control Room No.23261527 vide complaint No.1674 and 1678 both dated 17.01.2017 and requested the officer to take immediate action. That when the defendant No.1, came to know about the complaint against them in the MCD control room by the plaintiff, defendant No.1 threatened the plaintiff and her husband for dire consequences if the complaint is not withdrawn. The plaintiff immediately called the PCR on calling No.100 and when the PCR arrived, the plaintiff briefed the police officers the whole incident and also that she was threatened by the defendant No.1 and if the work at the first floor could not be stopped there might be a fatal accident of building collapsing and loss of her and her family life along with other occupants. The plaintiff gave a written complaint to the police station vide daily diary No.35B dated 19.01.2017. That the police after taking the written complaint showed their inability to stop the work at the first SUIT NO : 193/17 (OLD NO.21/17) Pg 4 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. floor but to report the matter to the MCD for their action against the unauthorized construction however, the police failed to take note that due to the nature of work being carried out at the first floor was in the nature to make the base of the upper floor so weak that in an event of heavy rain and/or even minor earthquake the whole building might collapse, resulting in loss of many innocent lives, hence, the complaint of the plaintiff was not against the illegal construction but against the work which could be the reason for an accident which would result in death of the innocent peoples living and working in the property and also visitors of the vicinity. The plaintiff then sent the complaint copy lodged with the police station to the different authorities i.e. Deputy Commissioner, NDMC, D.C.P. North, D.C.P. (STF) etc. on 19.01.2017 but no action had been taken by any of the authority on her complaint. The plaintiff suffered heavy damages due to illegal removing the partitioned wall and shaving of the load bearing wall at the first floor by the defendant No.1 as her room's floor and walls developed wide cracks, the plaintiff is afraid this illegal work could be another way to throw her and her family out of the property by the defendant No.1 as the defendant No.1 named Raju Gupta has filed an eviction petition SUIT NO : 193/17 (OLD NO.21/17) Pg 5 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. with the ARC, Tis Hazari court in the year 2010 against the plaintiff's family on forged documents of his ownership but the Hon'ble court of Sh. Sunil Kumar, ARC, Central, THC, had granted the leave to defend in the favour of the plaintiff's family, hence finding it difficult to succeed in his frivolous case the defendant No.1 trying to vacate the premises by doing all sort of illegal ways. The plaintiff already suffered heavy damages to her property with wide cracks on the load bearing walls and on roof in all over her property due to illegal work by the defendant no.1 on the first floor of the said property and the plaintiff also apprehend the collapsing of the suit property as well as her property due to suit property, as the structural base of this property is very old and any unapproved construction would result in collapsing the property as prone in this area.
WRITTEN STATEMENT OF DEFENDANT NO.1:
3. Defendant No.1 filed its written statement controverting the claim of the plaintiff while submitting that the suit of the plaintiff is false, frivolous and vexatious and is based on totally wrong allegations; and merits dismissal. That the plaintiff by filing this false and frivolous suit SUIT NO : 193/17 (OLD NO.21/17) Pg 6 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. is harassing and torturing the other tenant/ employee who are residing on the second floor of the property. The plaintiff is an encroacher and has encroached upon a portion on the second floor. Her husband is a tenant under the defendant No.1 and defendant No.1 has already filed an eviction petition against her husband which is pending in the court of Sh. Rajender Kumar, Addl. Rent Controller, Central, Tis Hazari courts, Delhi and the present false and frivolous suit is filed in retaliation and as a counter blast to pressure the defendant to withdraw the said eviction petition. That even otherwise the ground floor and first floor is owned by Sh. Rattan Lal Gupta who has effected the permissible repairs and renovation to his portion. Mr. Raju Gupta is the owner of the second floor. The property is very old construction and is existing as it is since decades and only the repairs are done. There is absolutely no illegal and unauthorized constructions, nor there is any violation of building bye laws and rules framed under DMC Act. No damages or cracks to the property. The plaintiff has been harassing the other tenant/ employees residing on the second floor of the property. A portion on the second floor has been encroached upon by the plaintiff. It is submitted that the husband of SUIT NO : 193/17 (OLD NO.21/17) Pg 7 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. the plaintiff is a tenant under the defendant No.1 against whom the defendant No.1 has already filed an eviction petition, which is pending in the court of Sh. Rajender Kumar, Addl. Rent Controller, Central, Tis Hazari Courts, Delhi. The suit is filed in retaliation and as an counter blast. It is denied that there are any such cracks and if there is any, the same is due to the long time existence of the property. By effecting minor permissible repairs, there is no question of any cracks being caused. There has never been any occasion for the plaintiff for objecting to the defendant No.1 as alleged. No cracks have been occurred due to the repair work done on the first floor. It is denied that the defendant No.1 ever assured the plaintiff that he would repair the cracks once his work is completed or that the plaintiff kept silence at that time. No such occasion or incidence ever occurred. It is denied that on 17.01.2017, the plaintiff noticed that the cracks became wider on the walls as well as on the floor of the room as alleged or that some new and wider cracks surfaced on then load bearing walls of the building and the stair case along with the shaking of the building. It is wrong and false that the plaintiff got frightened and while checking for the reason, the plaintiff was shocked to see that the defendant No.1 SUIT NO : 193/17 (OLD NO.21/17) Pg 8 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. instead of repair did illegal and fatal structural changes to the load bearing and partition walls of the rooms under his possession and endangered the structural safety of the building. No structural changes have been made by the answering defendant nor any cracks have been caused due to his repair work. The plaintiff is unnecessary making hue and cries and is showing a false picture to this Hon'ble court for malafide reasons. It is wrong and is denied that the defendant No.1 had removed the partition walls of 2 rooms to make it one big hall or that the load bearing walls of 12 inch were shaved to make it 4 inch wall so that an extra space of 8 inch could be utilized for their commercial purpose as alleged. There is no violation of DMC Act and sanctioned plan. It required repairs which have been done by the owner and occupier. The repairs were required immediately otherwise any causality could have taken place. The portion on the first floor is repaired and whereas the plaintiff is in occupation of a portion of the second floor. There is no question of any damage to the portion of the plaintiff. It is denied that anything has been done or is being done by which the building is endangered. When PCR came it saw the actual position at site and left the spot without taking any action of any kind.
SUIT NO : 193/17 (OLD NO.21/17) Pg 9 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. The repairs are effected as per Rules and regulations of Delhi Municipal Corporation Act and building bye laws framed thereunder. WRITTEN STATEMENT OF DEFENDANT NO.2:
4. Defendant No.2 filed its written statement while contending that the main dispute is between the plaintiff and defendant No.1 and the answering defendant/NDMC has been unnecessarily dragged into litigation as such the present suit is not maintainable qua the NDMC and is liable to be dismissed. That the property bearing No.1092, Kuch Natwa, Chandni Chowk, Delhi - 110 006 was inspected by the field staff and during inspection, it was noticed that only permissible repairs (plastering, repair of brick wall etc.) at first floor of the property in question has been carried out and the same cannot be treated as unauthorized construction and as such no action at the end of answering defendant is warranted at this stage. Therefore, the present suit merits dismissal on this ground also. In view of the above preliminary objections, which are independent of each other and goes to the root of the matter, the present suit is not maintainable and is liable to be dismissed qua the answering defendant/ NDMC. It is also SUIT NO : 193/17 (OLD NO.21/17) Pg 10 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. wrong and denied that building on account of such repairs has become unstable and likely to collapse.
REPLICATION:
5. In the replications filed to the written statement of defendants No.1 and 2, the plaintiff has denied the case as set up by the defendants in their respective written statements and have reiterated and reaffirmed the case as set up by the plaintiff in the plaint. Further, it has been averred that defendant No.1 had been trying to threaten the plaintiff to get vacate the 2nd floor of the suit property by filing eviction petition for bona fide need of residence. It is further averred that suit property belongs to a Charitable trust. Besides, it is stated that on 18.01.2017 plaintiff called on helpline number and IO Bachchu Singh came for inspection for suit property and a report was prepared by him under Section 133D Cr.PC referring to illegal construction by Ratan Lal. ISSUES:
6. After the completion of the pleadings vide order dated 06.09.2017, following issues were framed for trial by Ld. Predecessor:
1. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP.
SUIT NO : 193/17 (OLD NO.21/17) Pg 11 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr.
2. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP.
3. Relief.
PLAINTIFF'S EVIDENCE:
7. In order to prove his case plaintiff has examined herself as PW1 by way of his affidavit Ex.PW1/A. PW1 relied on following documents:
1. Ex.PW1/1 (colly.) 07 photographs.
2. Ex.PW1/2 (colly.) 06 photographs.
3. Ex.PW1/3 deexhibited and marked as MarkA being photocopy of complaint sent to SHO, PS Kotwali.
4. Ex.PW1/4 received copy of complaint sent to SHO PS Kotwali dated 19.01.2017.
PW2 Sh. Sahil Kakkar is an Advocate who was appointed as Local Commissioner in the present matter. He exhibited his report as Ex.PW2/1.
DEFENDANT'S EVIDENCE:
8. On the other hand, defendant No.1 in order to prove its case examined Sh. Raju Gupta, Director of defendant No.1 whose SUIT NO : 193/17 (OLD NO.21/17) Pg 12 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr.
examinationinchief is by way of affidavit Ex.DW1/A. DW1 relied on following documents:
1. Ex.DW1/A (colly.) Site plan along with copy of sale deed dated 27.07.2000 (sale deed deexhibited and marked as markA being photocopy).
2. Ex.DW1/B (colly.) status report dated 05.09.2017 filed by plaintiff No.2 along with seven photographs.
9. No evidence was led on behalf of defendant No.2.
10. Arguments were led orally as well as in writing. It was argued by the Ld. Counsel for plaintiff that No objection has been filed by any of the defendants against report of Local commissioner. And that the photographs show wide cracks in the walls and floors. Further, it is argued that DW1 had admitted that two guarders were put up giving justification that DW1 being the owner does not want building to collapse. Section 334 of DMC Act is also relied upon. It is argued that generally guarders are installed only where walls are removed. It is further argued that had the suit been counter blast to eviction petition, it would not have been filed after a gap of 7 years. Further, Ld Counsel stated that by a reading of evidence of DW1 it is clear that possession SUIT NO : 193/17 (OLD NO.21/17) Pg 13 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. of plaintiff is not disputed.
11. Per contra, Ld. Counsel for defendant has mainly relied upon written statement and report of NDMC and argued that repair is not impermissible or unauthorised.
12. I have heard the arguments and perused the record. Issuewise findings are as follows: ISSUE NO.1 Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP.
13. For granting relief of perpetual/prohibitory injunction, first and foremost is to see the ingredients of the same. First, there must be an obligation of defendant in favor of plaintiff and secondly, there must breach or at least apprehension of breach of that obligation.
14. As per section 38(3) of Specific Relief Act, in case of invasion in plaintiff's enjoyment of property, court may grant relief in certain circumstances mentioned in the provision.
15. Therefore, obligation of defendant has to be established.
16. At the outset, it is pertinent to mention that defendant is a Company M/s. Anuratan Textile (P) Ltd. sued through its director Sh. Raju SUIT NO : 193/17 (OLD NO.21/17) Pg 14 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. Gupta. So, plaintiff had the onus to prove that defendant company had breached or would breach the obligation.
17. To ascertain the same, a reference to pleadings is necessary. Certain Paras of the plaint are quoted for this purpose:
"Para 6. That the plaintiff objected and protested before the defendant no.1 that he is endangering the life of her and her family..."
"Para 9. That when the defendant no.1 came to know about the complaint against them in the MCD control room by the plaintiff, he threatened the plaintiff..."
"Para 13. ....defendant no. 1 named Raju Gupta has filed an eviction petition...."
"PRAYER (a) .....defendant no.1, his associates..."
18. These Para prima facie indicate that in the plaint, plaintiff has treated Sh. Raju Gupta as defendant No.1 and all the allegations are against him only in his personal capacity.
19. Further, the written statement and replication are also to be perused carefully.
20. The written statement also nowhere treats Raju Gupta as a Director of Defendant company. In Para 6 of reply on merits, it is stated, "...husband of the plaintiff is a tenant under defendant No.1...".
SUIT NO : 193/17 (OLD NO.21/17) Pg 15 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr.
21. In replication, in Para 6 again, plaintiff has averred "...defendant No.1 had been trying to threaten the plaintiff to get vacate 2nd floor of the suit property by filing eviction petition before learned ARC, Central, THC for his bonafide need for residence...".
22. Further, in the same para it is stated "...defendant no.1 with ulterior motive to get vacate the 2nd floor from the plaintiff already behaving in mischievous act like blocking....defendant no.1 use the abusive words.."
23. Again in the same para, it is also stated that "father of the defendant No.1".
24. And to the contrary, in Para 9 it is averred "Sh. Ratan Lal Gupta, the father of director of defendant No.1..."
25. First time, in Para 13 of the replication, it was averred specifically that first floor of the property is in possession of M/s Anuratan Textiles and that Sh. Raju Gupta is director of M/s. Anuratan Textiles (P) Ltd.
26. In view of the above, it transpires that there are no clear cut allegations against the defendant company. Only at one place i.e. in one Para of replication Sh. Raju Gupta has been treated as director of defendant company apart from memo of parties.
SUIT NO : 193/17 (OLD NO.21/17) Pg 16 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr.
27. It is a settled law that pleadings have to been seen in letter and spirit.
Moreover, the court cannot act blindly and mechanically to ignore all the flaws in the pleadings and proceed against the defendant shown in the memo of parties in absence of allegations in the pleadings against the defendant impleaded as party. It is most relevant to note that Sh. Raju Gupta has not been made a party to the proceedings.
28. At this juncture, it is also important to say that Company and its directors or even members are separate legal entities. Also, it is inevitable to state that actual owners of a company act are its members and not Director. Therefore, present case being against company, allegations against its Director in a manner which creates no nexus with the company, at the very threshold go against the case of the plaintiff.
29. It is also significant to mention that there is no Board Resolution or Power of Attorney or authorization filed on behalf of Defendant no.1. Though court is conscious of the law laid down in Union Bank of India v. Naresh passed in 1996 in which Hon'ble Supreme Court discussed Order 29 Rule 1 and held that such omission cannot lead to dismissal SUIT NO : 193/17 (OLD NO.21/17) Pg 17 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. of the case and the court can consider the circumstances and subsequent ratification by the company either express or implied. Also, in this case, the fact that Sh. Raju Gupta is Director of the Company is not disputed. However, in the present case, omission to file the same can be clubbed with other circumstances observed above paras.
30. I consider it prudent to discuss merits of the case also.
31. PW1 Sarla Gupta who is the plaintiff, relied upon Ex.PW1/1 and Ex.PW1/2 which are the photographs. The photographs are not accompanied with a Certificate under Section 65B nor it is deposed or stated that author of the photographs was PW1. Further, she has relied upon Ex.PW1/3 photocopy of complaint sent to SHO PS Kotwali and Ex PW1/4 received copy of complaint sent to SHO PS Kotwali. No other document has been exhibited by the plaintiff. Ex.PW1/4 which is the complaint sent to SHO PS Kotwali, does not contain diary number as mentioned on Ex.PW1/3. Even otherwise, the complaint is against Mr. Ratan Lal. Nowhere does it mention name of the Defendant company nor name of Sh. Raju Gupta.
SUIT NO : 193/17 (OLD NO.21/17) Pg 18 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr.
32. Even if, contention of Sh. Raju Gupta in the written statement and his cross examination, that he is tenant of Sh. Ratan Lal Gupta and he carried on Textile business in that premises, is taken in favour of plaintiff. Still it would not be considered as a proof of allegation against Defendant company as the rent is not alleged to be between Company and Sh. Ratan Lal. Again the legal position that Company and its director are not the same entity is applicable here.
33. Apart from this, it is noticed that in Para 8 of the plaint, plaintiff has mentioned about complaints made to MCD on 17.01.2017 but neither anything has been annexed nor any witness was called to prove the same. In replication, a reference has been made to a Kalandra u/s 133D mentioning such fact of dangerous repairs and construction. Though, it is a settled law, no new and inconsistent facts can be brought in replication, even otherwise the kalandra has not been exhibited or relied upon in evidence.
34. Site plan has also not been exhibited by plaintiff, rather site plan has been exhibited by DW1 as Ex.DW1/2.
35. As per the pleadings, major issue is that whether the construction/ repair work was actually illegal and unapproved due to which plaintiff SUIT NO : 193/17 (OLD NO.21/17) Pg 19 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. had allegedly suffered damages by way of wide cracks on his floor. It is categorically alleged that defendant has done illegal construction and structural changes on the first floor. Plaintiff has quoted Section 334 of DMC Act in the replication. NDMC was impleaded as defendant No.2 in this case.
36. In the written statement of Defendant No.2, it is stated that inspection was conducted and as per NDMC, no unauthorized or illegal construction has been carried out which called for action. A status report was also filed stating the same which is Ex.DW1/B though that has not been proved by person who prepared it.
37. Ld counsel for plaintiff had argued that he could not cross examine the witness from NDMC on the question of unauthorized construction as NDMC/Defendant No.2 never called any witness.
38. It is a trite law that plaintiff has to stand on his own legs and general burden of proof to prove the case is upon the plaintiff only. He cannot take benefit of lacunas in the case of defendant. No evidence of any expert or any engineer has been led by the plaintiff.
39. A Report of Local Commissioner is Ex.PW2/1. Local Commissioner stepped into the witness box to prove the same. As per the report, SUIT NO : 193/17 (OLD NO.21/17) Pg 20 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. major alterations in the premises had been done and that defendant No.1 had removed two walls out of which one was made entirely of concrete and second one was having a wooden separating frame attached with it.
40. It is also mentioned that contention of plaintiff with respect to shaving of wall from 12" to 4" is incorrect. And that plastering work has been done by the defendant No.1 but there is little reduction of measurement in that which does not leave impact upon plaintiff's portion. However it is indeed stated that removal of walls caused widening of cracks though the cracks were not new as they were also because of the old structure of the building. It is also plaintiff's case that building is very old and weak.
41. It is further stated in the report that two garters were installed by the defendant No.1 apart from these alterations to give more support to the building.
42. It is evident that report of local commissioner has not completely supported the case of the plaintiff. Moreover, as per plaint, plaintiff has basically questioned the repairs and construction as being illegal and SUIT NO : 193/17 (OLD NO.21/17) Pg 21 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. unapproved i.e. against Municipal Corporation laws. And it is also evident from the fact that NDMC was made a party. A local commissioner can only observe the condition or status of the suit property but is not a competent person to give his observations and conclusions on the same. And as stated earlier, plaintiff has brought nothing on record to rebut averments of defendant No.2.
43. In light of the above discussion, it is clear that the present report of LC does not come to rescue of plaintiff.
44. Coming to the cross examination of Plaintiff/PW1, it is testified that MCD officials had inspected the property but as it was not done properly, a call was made to 100 number. However, in the plaint, as per para 9 and 10 a different sequence is stated and there is no mention of MCD inspection. This also creates doubt over case of the plaintiff.
45. Besides this, the apprehension of the plaintiff is that the building may collapse and he himself admits that Sh. Raju Gupta carries on business on the first floor. It is not logical to believe that a person would commit an act which is dangerous for his own life.
46. In view of my above observations and discussion, following SUIT NO : 193/17 (OLD NO.21/17) Pg 22 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. conclusions are derived:
1. Party against whom there are allegations has not been impleaded and the one impleaded is a company against whom the plaintiff does not seem to have any grievance.
2. Plaintiff has not been able to prove his case against the present defendant or even Sh. Raju Gupta as adequate evidence has not been led.
47. The court is conscious of Order 1 Rule 9 and Section 99 of Code of Civil Procedure which state that no suit shall be defeated by reason of misjoinder or nonjoinder of parties except a necessary party. However, Section 99 makes it clear that such defects should not go to the merits of the case. And in the present set of facts and situation, the defect cannot be ignored. It has categorically been kept in mind that technicalities shall not prevail over substance of the pleadings and proceedings. However, in present case, a totally separate entity whose link has not been established with the actual allegations cannot be prejudiced.
48. Hence, this issue is decided against the Plaintiff.
SUIT NO : 193/17 (OLD NO.21/17) Pg 23 of 24 Sarla Gupta v. M/s. Anuratan Textile (P) Ltd. & Anr. ISSUE NO.2 Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP.
49. In view of the above findings, this issue is also decided against the plaintiff.
RELIEF
50. In view of discussion hereinabove on the issues, it is held that plaintiff has not been able to prove her case and hence, present suit is dismissed. No order as to costs.
51. Decree sheet be prepared accordingly.
52. File be consigned to Record Room, after due compliance.
HELLY Digitally signed
by HELLY FUR
FUR KAUR
Date: 2021.02.26
KAUR 15:24:31 +0530
Announced in the open court (HELLY FUR KAUR)
on 25.02.2021 Civil Judge - 08 (Central)/Delhi
SUIT NO : 193/17 (OLD NO.21/17) Pg 24 of 24