Delhi District Court
Saroj vs Mcd (South) Th. Commissioner And Ors on 9 September, 2024
IN THE COURT OF MS. RUBY NEERAJ KUMAR, SENIOR
CIVIL JUDGE-CUM-RENT CONTROLLER, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
(A) CS SCJ 353/17
Saroj
W/o Sh. Jagmohan
R/o House No. 655/1,
Village Chirag Delhi
New Delhi.
..........Plaintiff.
Versus
1. South Delhi Municipal Corporation
through its Commissioner Civic Center,
New Delhi.
2. Deputy Commissioner, SDMC,
Green Park Zone, New Delhi.
3. Station House Officer,
P.S. Malviya Nagar, New Delhi
4. Jeet Ram Bhardwaj
S/o Late Sh. Lakhpat Ram Bhardwaj.
R/o House No. 371, Village Chirag Delhi
New Delhi-110017.
5. Vimlesh Kumar Bhardwaj
S/o Late Sh. Lakhpat Ram Bhardwaj.
R/o House No. 371, Village Chirag Delhi
New Delhi-110017.
.........Defendants.
(B) CS SCJ 319/18
Jeet Ram Bhardwaj
S/o Late Sh. Lakhpat Ram Bhardwaj.
R/o House No. 371, Village Chirag Delhi
New Delhi-110017.
.......Counter-Claimant.
Versus
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 1 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
1. Saroj
W/o Sh. Jagmohan
R/o House No. 655/1,
Village Chirag Delhi
New Delhi.
2. The Commissioner, South Delhi
Municipal Corporation,
Civic Center, New Delhi.
3. The Deputy Commissioner, South
Delhi Municipal Corporation, Green
Park Zone, New Delhi.
......Non Counter-Claimants.
(C) Misc SCJ 112/17
Saroj
W/o Sh. Jagmohan
R/o House No. 655/1,
Village Chirag Delhi
New Delhi.
...........Applicant.
Versus
1. Jeet Ram Bhardwaj
S/o Late Sh. Lakhpat Ram Bhardwaj.
R/o House No. 371, Village Chirag Delhi
New Delhi-110017.
2. Vimlesh Kumar Bhardwaj
S/o Late Sh. Lakhpat Ram Bhardwaj.
R/o House No. 371, Village Chirag Delhi
New Delhi-110017.
.........Non Applicants.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 2 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
(A) SUIT FOR PERMANENT AND MANDATORY
INJUNCTION.
(B) COUNTER CLAIM FOR DAMAGES AND
MANDATORY INJUNCTION.
(C) MISCELLANEOUS APPLICATION UNDER ORDER
XXXIX RULE 2 A CPC.
Date of institution of suit : 22.03.2017
Date of institution of counter claim : 05.08.2017
Date of arguments : 03.08.2024
Date of pronouncement of judgment : 09.09.2024
JUDGMENT
1. Vide this common judgment, I shall dispose of the civil suit, filed by the plaintiff against the defendants for permanent & mandatory injunction, Counter-Claim, filed by the defendant no.4 for damages & mandatory injunction and application under Order XXXIX Rule 2A CPC, filed by the plaintiff. It is clarified herein that the parties shall be referred in this judgment as plaintiff & defendants as arrayed in the main suit bearing CS SCJ No. 353/17.
2. The plaintiff has sought the following reliefs in suit for permanent & mandatory injunction: -
(a) Pass a decree for permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendant no.4 & 5, to carry out any construction over the property bearing municipal no.655/2 and 655/3 situated at village Chirag Delhi, CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 3 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj New Delhi-110017 without having any sanctioned plan;
(b) Pass a decree of mandatory injunction thereby directing the defendant no.1 to 3 to stop the further unauthorized construction immediately and to remove the unauthorized construction raised by the defendant no. 4 & 5 without obtaining sanctioned plan;
(c) Pass any other further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendants, in the interest of justice.
3. The defendant no.4 has sought the following reliefs in the counter claim for damages & mandatory injunction: -
(a) Direct the defendant no.1 (plaintiff in the main suit) to pay a sum of Rs. 2,00,000/- to the counter claimant as compensation against the damages due to the seepage, and
(b) Direct the defendant no.1 to permanently close the window type space so opened by her in the east side of her house bearing no. 655/1, which is falling in the west side of the counter claimant's property bearing no. 655/2 & 655/3, and
(c) Pass a decree of mandatory injunction thereby directing the defendant no.2 & 3 to get the illegal commercial activities stopped forthwith, which are being run from the house bearing no. 655/1, part of khasra no. 740/96, Chirag Delhi, New Delhi and directing the defendant no.2 & 3 to demolish the CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 4 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj illegal construction of the house building bearing no.
655/1, part of khasra no. 740/96, Chirag Delhi, New Delhi, which has been raised without obtaining any approval/ sanction of the building plan from the competent authority and also direct defendant no.2 & 3 to remove the stairs constructed outside of the suit property causing encroachment on the main street duly shown in dotted lines in the site plan filed by the counter claimant, and
(d) Direct the defendant no.1 to pay the cost and legal expenses including the court fee and the counsel fee incurred in filing of the counter claim, and
(e) Pass any such orders which this Hon'ble Court deems fit and proper in the interest of justice.
BRIEF FACTS OF CS SCJ 353/17 (main suit)
4. Concise facts of the case as enunciated in the plaint are that the plaintiff is resident of House no. 655/1, Village Chirag Delhi, New Delhi. The defendant no.4 & 5 are running a sweets shop under the name & style of M/s Lakhpat Sweets Center and one STD/ PCO shop under the name & style of M/s Mithila Communication, just adjacent to the house of the plaintiff, at property bearing no. 655/2 & 655/3, Village Chirag Delhi, New Delhi.
5. It is the case of the plaintiff that the defendant no. 4 & 5 are raising illegal & unauthorized construction at their property bearing no. 655/2 & 655/3, Village Chirag Delhi, New Delhi CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 5 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj without obtaining any sanctioned plan from the competent authority. It is averred that due to the said unauthorized & illegal construction being carried out by the defendant no.4 & 5, property of the plaintiff has suffered severe damages in the form of cracks on the walls and walls of the property of the plaintiff have also got punctured at various places. It is submitted that the defendants no. 4 & 5 are carrying out the said construction by using sub-standard raw/ building material. It is submitted that on various occasions, the plaintiff requested the defendant no.4 & 5 to not raise the unauthorized & illegal construction but they refused to do so. Being aggrieved by the actions of the defendant no.4 & 5, plaintiff made several complaints before the competent authorities but to no avail. Hence, the present suit has been filed by the plaintiff against the defendants for permanent & mandatory injunction seeking aforementioned reliefs.
6. After due service of summons upon the defendants, Written Statement was filed, on behalf of the defendants No. 4 & 5 along with Counter-Claim seeking above mentioned relief of damages & mandatory injunction.
7. It is pertinent to note that no written statement was filed by the defendant No.1 & 2/ MCD despite opportunity being given. However, status reports were filed on behalf of defendant No.1 & 2/MCD on 06.07.2017 and 05.08.2017.
WRITTEN STATEMENT
8. It is stated in the Written Statement, filed by the defendants No.4 & 5 that the suit of the plaintiff is liable to be dismissed being not maintainable as the plaintiff has not CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 6 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj approached the court with clean hands and has suppressed material facts. It is submitted that the plaintiff herself is residing in the property wherein, illegal & unauthorized construction has been raised, in violation of the municipal bye-laws. It is further submitted that the house of the plaintiff has been constructed without obtaining any approval/ sanctioned building plan from the MCD and the plaintiff has further encroached over the main street and therefore, she is not entitled to the equitable relief of injunction. It is further submitted that the plaintiff has illegally constructed her house till three floors wherein, the plaintiff resides only at the second floor and the remaining floors have been let out by her to various paying guests/ tenants and thus, the plaintiff is using the said residential premises for commercial purposes.
9. It is further submitted by the defendant no.4 & 5 that the plaintiff does not have any locus standi to file the present suit as neither of her rights, in any manner, are getting affected. It is further submitted that the present suit is not maintainable against defendant no.5 as the defendant no.5 has already sold his share in the property bearing no. 655/2, to Smt. Priyanka Bhardwaj, W/o Sh. Mahesh Bhardwaj (son of defendant no.4) in the year 2012, for sale consideration of Rs. 80,000/-, vide GPA, agreement to sell & purchase, affidavit, possession letter, Will and receipt dated 16.07.2012. It is further the case of the defendant no.4 & 5 that the plaintiff has not disclosed that in what capacity, she is residing in property bearing no. 655/1, as she has not filed any document with respect to the same. It is submitted that the shops of defendant no.4 & 5 are very old construction and due to the seepage caused by the water drainage system in the house of the CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 7 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj plaintiff, the walls of the shops of the defendant no.4 & 5 got damaged. The said defendants were merely carrying out the repair/ maintenance/ renovation work with respect to the said damages and were not raising any illegal & unauthorized construction, as alleged by the plaintiff. It is further averred that the plaintiff has filed the present suit with the sole motive to extort money from the defendants no.4 & 5. Hence, it is prayed that the present suit may be dismissed.
10. It is relevant to note that in the Status Report filed by the defendant No.1 & 2/MCD on 06.07.2017, it is averred that the unauthorized construction in the property bearing no. 655/2 & 655/3, in the shape of ground floor has been booked vide file no. 171/UC/B-I/SZ/2017 dated 22.05.2017 for action under section 343/344 of the Delhi Municipal Corporation Act. It is further stated therein that associated actions such as initiating sealing proceedings under section 345 A of the Delhi Municipal Corporation Act, launching prosecution action under section 466A of the Delhi Municipal Corporation Act, sending letters to Delhi Jal Board & BSES for disconnection of electricity & water supply respectively, sending letter to Revenue Department- Government of NCT of Delhi for not registering the property and sending letter to the police authorities for stoppage of work under section 344 (2) of the Delhi Municipal Corporation Act have also been taken. Further, in status report, filed on 05.08.2017, it has been stated that on inspection of the given property, it has been found that by providing shutters, the owner/ occupier has opened sweet/ halwai shop at ground floor and has further raised/ erected walls and columns at first floor.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 8 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
REPLICATION
11. Replication to the Written Statement of defendants No. 4 & 5, was filed by the plaintiff and therein, averments made by the defendant No.4 & 5 were denied and contents of the plaint were reiterated.
12. It is pertinent to mention herein that vide order dated 06.07.2017, the local commissioner was appointed by the Ld. Predecessor to inspect the suit property. The relevant portion of the local commissioner's report is reproduced as under: -
"4. That in the front of suit property two shops were already in existence, one shop is belongs to confectionery and another is mobile shop, which is also reflect in the photograph No.2. It is pertinent to mention here that presently no construction work is going on at the spot.
5. Thereafter I entered the property wherein I found that the walls were already constructed for a room on the ground floor which shows in photograph no. 4 to 16. It seems that the walls which were raised are fresh one and all the raw materials and equipment for the construction are still lying there. It is pertinent to mention that the flooring on the ground is not completed.
6. .........
7. ..........
8. It seems that the wall of north side has already been raised/ constructed upto around 8 ft. whereas the west and south side walls have already been raised/constructed upto around 5 and 4.5 ft. respectively."
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 9 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj BRIEF FACTS OF CS SCJ 319/18 (Counter-Claim)
13. Alongwith the Written Statement in the main suit, defendant no.4 had filed a Counter-Claim, which as per the directions of the Ld. Predecessor, given vide order dated 05.08.2017, was registered separately. The succinct facts as enumerated in the counter-claim by the defendant no.4 are that the counter-claimant/ defendant no.4 is the owner in possession of the property bearing no. 655/2 and 655/3, part of khasra no. 740/96, village Chirag Delhi, New Delhi. It is submitted that the non-counter claimant no.1/ plaintiff is residing at the adjacent property bearing no. 655/1 and the said property has been constructed by the non-counter claimant no.1/ plaintiff without obtaining any approval/ sanction or building plan from the competent authority. The said property bearing no. 655/1 is stated to have been constructed in absolute violation of Municipal bye-laws. It is averred that the non-counter claimant no.1/ plaintiff is also running commercial activities from the said premises as she is providing paying guests facilities, without obtaining requisite license from the competent authority. It is averred that the non-counter claimant no.1/ plaintiff has also encroached upon the main street by constructing stairs therein. It is further submitted that the non-counter claimant no.1/ plaintiff has intentionally opened the window from her house towards the east side of the property of counter-claimant/ defendant no.4. it is the further the case of the counter-claimant/ defendant no.4 that there is no proper drainage system in the house of the non- counter claimant no.1/ plaintiff and due to the same damages have been caused to the property of the counter-claimant/ defendant no.4. It is submitted that despite repeated requests of CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 10 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj the counter-claimant/ defendant no.4, non-counter claimant no.1/ plaintiff has failed to take any steps to rectify the said drainage system. The counter-claimant/ defendant no.4 has filed various complaints before the competent authorities but to no avail. Hence, the present counter-claim has been filed for relief of damages and mandatory injunction.
WRITTEN STATEMENT in CS SCJ 319/18 (Counter-Claim)
14. Non-counter claimant no.1/ plaintiff filed the Written Statement to the counter-claim submitting that the same has been filed without any cause of action and in counter blast to the suit filed by the non-counter claimant no.1/ plaintiff. It is further submitted therein that the non-counter claimant no.1/ plaintiff had purchased the house no. 655/1 around 16 years ago i.e. in the year 2002 and since then, she has not carried out any construction in the said property. She further denied having encroached upon the public street and all other allegations levelled upon her by the counter-claimant/ defendant no.4.
15. No replication to the said Written Statement of non- counter claimant no.1/ plaintiff was filed by the counter- claimant/ defendant no.4.
ISSUES FRAMED IN CS SCJ 353/17 (main suit)
16. On the basis of the pleadings of the parties, following issues were framed by the Ld. Predecessor, vide order dated 12.12.2017, in the main suit: -
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 11 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj (1) Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP (2) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP (3) Whether the suit of the plaintiff is liable to be dismissed on the ground of suppression of material facts and on the ground that plaintiff has not approached the court with clean hands? OPD 4 & 5.
(4) Whether the suit of the plaintiff is liable to be dismissed on the ground that plaintiff has no locus standi and no cause of action in her favour? OPD 4 & 5.
(5) Whether the suit of the plaintiff is liable to be dismissed on the ground that the suit has not been valued properly for purposes of court fees and jurisdiction? OPD 4 & 5.
(6) Whether the suit of the plaintiff is liable to be dismissed on the ground of bar of limitation? OPD 4 & 5.
(7) Relief.
ISSUES FRAMED IN CS SCJ 319/18 (Counter-Claim)
17. On the basis of the pleadings of the parties, following issues were framed by the Ld. Predecessor, vide order dated 12.12.2017, in the counter-claim: -
(1) Whether the counter-claimant Sh. Jeet Ram Bhardwaj is entitled to relief of compensation/ damages as prayed for in prayer clause (a) of the counter-claim? OPP/ counter-
claimant.
(2) Whether the counter-claimant is entitled to relief of mandatory injunction as prayed for in prayer clause (b) & (c) of the counter-claim? OPP/ counter claimant.
(3) Whether the counter-claim is not maintainable on the ground of suppression of material facts? OPD/ respondent no.1.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 12 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
(4) Whether the counter-claim is liable to be dismissed under order 7 rule 11 CPC? OPD/ respondent no.1.
(5) Whether the counter-claim is liable to be dismissed on ground that counter-claim has not been valued properly for purposes of court fees and jurisdiction? OPD/ respondent no.1.
(6) Relief.
18. It is pertinent to mention herein that vide order dated 29.08.2018, passed by the Ld. Predecessor on application under section 151 CPC filed by defendant no. 4 & 5, the suit bearing CS SCJ No. 353/17 was clubbed/ consolidated with the counter- claim bearing CS SCJ no. 319/18, for the purpose of recording of evidence. Accordingly, common evidence was adduced in both the matters.
PLAINTIFF'S/ NON- COUNTER CLAIMANT NO.1'S EVIDENCE
19. In order to prove her case, the plaintiff has examined herself as PW-1 and tendered her affidavit in evidence, which is Ex. PW-1/1. In support of her case, plaintiff has relied upon the following documents:
(a) Mark A (colly.), which are photographs of the property of the defendant no.4 & 5.
(b) Mark-B (colly.), which are the
photographs of the demolished property of
defendant no.4 & 5.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 13 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
(c) Ex. PW1/C (colly.), which are copies of
three complaints, all dated 15.03.2017, sent by the plaintiff to the Deputy Commissioner of Police.
(d) Ex. PW1/D (colly.), which are copies of complaints of different dates of May 2017, filed by the plaintiff before the MCD.
20. In her cross-examination, she has admitted that the shops at property no. 655/2 & 655/3 were already in existence but the same were demolished and have been reconstructed. She has admitted that apart from the shops some building structure also existed in the said property. She further deposed that the shops and the building structure at above mentioned property was in existence for last 15 years. She further deposed that the defendant no.4 & 5 did not make any attempt to encroach upon any of the portion of her property while, carrying out the alleged construction. She deposed that the building material used by the defendant no.4 & 5 was not checked or tested by any expert or quality check agency. She further admitted that she has not filed any suit for damages/compensation against the defendant no.4 & 5 qua the alleged damage caused to her property by the actions of defendant no.4 & 5. She admitted that the photographs relied upon by her are computer generated and she has not filed any Certificate under section 65-B of the Indian Evidence Act along with the said photographs. She further admitted that no date and time has been mentioned on the said photographs. She further deposed that she does not have any sanctioned building plan of her house. Further, on being asked to point out the mutation document of her house with the MCD, she has relied upon copy CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 14 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj of one tax assessment order, which is Ex. PW-1/DX1. She has been shown a property tax bill, issued by MCD for the year 2000-2001, which is Ex. PW-1/DX2 and she admits that the said document does not bear any signatures or seal of any authority but denied that the same is forged & fabricated. She has been shown a photograph, which is Ex. PW-1/DX3, to which, she submits that it is of the main door of her house but she denied that the stairs reflecting in the said photograph have been constructed till the main street. She has been shown two more photographs, which are Ex. PW-1/DX4 (colly.), to which, she submits that she had purchased her house in the same condition as it is and she did not carry out any construction in the same.
21. Plaintiff/ non-counter claimant no.1 did not examine any other witness and therefore, PE was closed on 19.12.2019.
DEFENDANT'S/ COUNTER CLAIMANTS EVIDENCE
22. In support of their case, the defendant No.4 & 5 have examined themselves as D4/CCW1 and DW-2 respectively. D4/CC-W1 Sh. Jeet Ram Bhardwaj tendered his affidavit in evidence, which is Ex. D4/CC-W1/A. In support of his case, defendant No.4 has relied upon the following documents: -
(a) Ex. D4/CC-W1/1, which is site plan.
(b) Ex. PW1/DX3 and Ex. PW1/DX4 (colly.),
which are photographs.
(c) Ex. D4/CC-W1/3 (colly.), which are copy of
complaints dated 24.07.2017 and reminders dated 28.07.2017.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 15 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
23. In his cross-examination, he has deposed that the plaintiff is residing at property bearing no., 655/1 since the year 2000 (approx). He has admitted that he had not filed any complaint against the plaintiff between year 2000 to 2017. He admitted that he had filed complaint against the plaintiff in the year 2017 after the plaintiff had filed the suit against him. He had deposed that the drainage system of the plaintiff is lying in her portion. He further submitted that he has not filed any photographs on record, which could suggest that due to the seepage, his property and the property of the plaintiff got damaged. He further deposed that the plaintiff had constructed her house in the year 2000 and he had not made any complaint against the plaintiff for carrying out any unauthorized construction from year 2000 to 2018.
24 DW-2 Sh. Vimlesh Kumar Bhardwaj tendered his affidavit in evidence, which is Ex. DW-2/A. In support of his case, defendant No.5/ DW-2 has relied upon copy of GPA, agreement to sell & purchase, affidavit, possession letters, receipt and Will dated 16.07.2012, in respect of Shop no. 655/2, executed by him in favour of Priyanka Bhardwaj, which are Ex. DW-2/1 (colly.) (OSR).
25. In his cross-examination, he has deposed that the document vide which, he had transferred Shop No. 655/2 in favour of Priyanka Bhardwaj, were registered documents. He deposed that the plaintiff had constructed her house in the year 2000 and his brother Jeet Ram had not made any complaint against the plaintiff for carrying out any unauthorized construction, till the year 2017. He has been shown photograph, CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 16 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj which is Ex. DW-1/P3 and after seeing the same, he admits that his shops & house of the plaintiff is visible in the said photograph. He has submitted that he has not filed any document to show that the plaintiff is using her house for the commercial activities. He has further failed to give the names of the alleged tenants of the plaintiff. He has deposed that no sanction plan was obtained by either him or his brother before raising the construction at their shops.
26. Defendants No.4 & 5 have further examined DW-3 Sh. Naveen Santoshi. DW-3 has tendered his affidavit in evidence which is Ex. DW-3/A and relied upon document i.e. Ex. DW3/1, which is his Aadhar Card. He is resident of the same area as the parties. He has deposed that the plaintiff is using her residence for the commercial activities and she has kept tenants therein. He has further deposed that the defendant no.4 was only carrying out the repair & renovation work at his shops due to its old construction.
27. Defendants No.4 & 5 have further examined DW-4 Sh. Dal Chand, Record Keeper, MCD, South Zone, Green Park, Delhi. He being a summoned witness brought the record pertaining to complaints dated 27.07.2017 and 31.07.2017, which are Ex. DW-4/A and Ex. DW-4/B respectively.
28. Defendants No.4 & 5 have lastly examined DW-5 Sh. Mahipal Singh, Diploma Engineer, Division Saket, BSES. He being a summoned witness brought computer generated record pertaining to the electricity connection i.e. CA no. 102225289 CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 17 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj and 150522462, which are Ex. DW-5/A (colly.) and Ex. DW-5/B (colly.) respectively.
29. Defendants No.4 & 5 did not examine any other witness. Further, defendant No.1 to 3 did not examine any witness in their defence. Thus, DE was closed on 15.07.2022.
BRIEF REASONS FOR DECISION AND DECISION THEREOF
30. I have heard the submissions made by Ld. Counsel for the parties and carefully perused the record. The issue-wise findings of this Court in the main suit bearing CS SCJ No. 353/17 are as under: -
Issue No. (1) Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP and Issue No. (2) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP
31. The onus to prove issue No 1 &.2 is upon the plaintiff. To prove the given issue, plaintiff is required to show that the defendants no.4 & 5 were carrying out unauthorized & illegal construction at their shop bearing no. 655/2 & 655/3, due to which damage has been caused to her property bearing no. 655/1. In order to prove the same, plaintiff has relied upon certain photographs, which are Mark-A (colly.) & Mark- B (colly.), Ex. PW-1/ C, which are copies of three complaints, all dated 06.03.2017, sent by the plaintiff to the Deputy Commissioner of Police and Ex. PW-1/D (colly.), which are copies of complaints of different dates of May 2017, filed by the plaintiff before the CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 18 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj MCD. Thus, to claim the relief of permanent & mandatory injunction against the defendants no. 4 & 5 and to prove that they are carrying out unauthorized & illegal construction at their shops no. 655/2 & 655/3, the only evidence adduced by the plaintiff are the photographs & complaint made before the authorities concerned.
32. As regards the photographs relied upon by the plaintiff, it has been rightly argued by Ld. Counsel for the defendants no. 4 & 5 that the said photographs cannot be read into evidence in the absence of Certificate under section 65-B of the Indian Evidence Act. In her cross-examination, plaintiff has admitted that the said photographs were taken by her from her mobile phone and the same are computer generated coloured printouts. She has further admitted that she has not filed any Certificate under section 65-B of the Indian Evidence Act alongwith the said photographs. Further, the said photographs do not bear any date or time, so as to ascertain, as to when were they clicked by the plaintiff. Thus, the said photographs do not assist the plaintiff in any manner to prove her case against the defendants no. 4 & 5. The copy of the complaints filed by the plaintiff are also not of much relevance in order to prove the case of the plaintiff.
33. Further, in her cross-examination, plaintiff has admitted that the shops were already in existence on the property bearing no. 655/2 & 655/3 and apart from the shops, some building structure was also existing at the given property for the last 15 yrs. She has further deposed that the defendant no.4 & 5 had started repair & maintenance work in February 2017 after the demolition. In light of the said deposition, it is clear that the CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 19 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj shops in question were already in existence for the last 15 yrs and the same were not being constructed by the said defendants by laying fresh foundation.
34. The plaintiff has further relied upon the status reports dated 06.07.2017 and 05.08.2017, filed by the defendant no.1 &
2. As per the said reports, the property bearing no. 655/2 & 655/3 were booked for carrying out unauthorized construction, in the form of ground floor and on inspection, it was found that by providing shutters, the owner/ occupier has opened sweet/ halwai shop at ground floor and has further raised/ erected walls and columns at first floor. Further, the report of local commissioner has been relied upon by the plaintiff to prove that the defendants No. 4 & 5 were carrying out unauthorized & illegal construction at their shop.
35. The status report, filed by the defendants no.1 & 2, when read in conjunction with the cross-examination of the plaintiff, gives rise to a question as to how, the shops at ground floor and running business of halwai from therein, amounts to unauthorized construction. Evidently, plaintiff has admitted that the said shops alongwith some building structure were there since last 15 yrs. The report of defendants no.1 & 2/ MCD is silent on the aspect as to whether the defendants no.4 & 5 were carrying out fresh construction from the scratch or certain walls of the already constructed shops were being reconstructed/ repaired. No evidence has been led by defendants no.1 & 2/MCD, so as to enable this court to ascertain as to how the construction in question fell within the category of being unauthorized & illegal.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 20 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
The reports of the MCD, in the absence of any evidence cannot be accepted as gospel truth. Further, as per the report of the local commissioner, the shops were already in existence and at the time of inspection, no fresh construction was going on. It is further reported therein that certain walls, already constructed on the ground floor appeared to have been constructed recently. From the said report as well, it is not clear that whether the defendants no. 4 & 5 were carrying out the renovation/repair work of the old structure or fresh construction in violation of law.
36. Further, for the sake of arguments, even if it is assumed that the defendants no.4 & 5 were raising unauthorized & illegal construction at the said shops, the plaintiff, to claim the relief of permanent & mandatory injunction is required to prove that she has suffered damages/ losses due to the same or any of her personal right / interest has been violated or injury in any form has been suffered. The plaintiff has not led any evidence to prove the same, except the photographs, which for the reasons mentioned above, cannot be taken into consideration. The contention of the plaintiff that the defendants no.4 & 5 are using sub-standard raw/ building material for the said construction is baseless. No evidence has been led by the plaintiff with respect to the same. Moreover, on being asked in the cross-examination, regarding the basis of the said assertion, plaintiff has deposed that the wall raised by the said defendants had fallen. However, the said fact does not find mention in the pleadings of the plaintiff and has been made before the court for the first time, without any evidence to prove it.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 21 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
37. Further, plaintiff has admitted that the defendants no.4 & 5 have not made any attempt to encroach upon her property. Neither the report of the local commissioner nor the status reports filed by the MCD mentions about any seepage, damage or cracks in the property of the plaintiff due to the alleged construction. Further, the plaintiff has admitted that she has not claimed any damages from the defendants no.4 & 5 for the damage caused to her property due to alleged acts of the defendant no. 4 & 5, which leads to inference that no damage has been caused to the property of the plaintiff due to the alleged construction. Had there been any crack or seepage in the property of the plaintiff due to the said construction, she would have claimed damages from the said defendants. At this juncture, it would be apposite to refer to the judgment of the Hon'ble Delhi High Court in case titled as Rajender Motwani & Anr. v. MCD & Ors. in RSA No. 243/17 decided on 16.10.2017 wherein, it has been observed that merely raising unauthorized & illegal construction does not confer a right upon the neighbour to claim relief of injunction until, any of his personal interest is getting affected by it. The relevant paragraph of the said judgment is as under: -
"the second reason for rejecting the arguments urged on behalf of the appellants/plaintiffs is that an illegal construction in itself does not give any legal right to a neighbour. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but a right of a neighbour only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbour. Legal right to light and air is CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 22 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj only in terms of Section 15 of Easements Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbour is not absolute and is covered by Section 33 of the Easement Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbour and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbour of living in his own house or prevents the neighbour from carrying on his accustomed business in the dominant heritage /his own house. All these are factual aspects and admittedly there is no cause of action which is laid out in the plaint in terms of Section 15 and 33 of the Easements act that right to easement of the appellants /plaintiffs has become absolute as it has been enjoyed for 20 years and that in fact after rights to easement are acquired by prescription there is also a substantial damage to the appellants/plaintiffs or there is material interference in the physical comfort of the appellants/ plaintiffs or the appellants/ plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage/ own property."
38. Thus, the plaintiff has failed to prove that defendants no.4 & 5 were carrying out unauthorized & illegal construction at the Shops no. 655/2 & 655/3 or that due to the same, plaintiff has suffered any loss or injury or damage.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 23 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
39. In view of the above-discussed facts, circumstances & evidence adduced, issue no.1 & 2 are decided in favour of the defendants. No.4 & 5 and against the plaintiff.
Issue No. (3) Whether the suit of the plaintiff is liable to be dismissed on the ground of suppression of material facts and on the ground that plaintiff has not approached the court with clean hands? OPD 4 & 5.
40. The onus to prove issue No.3 is upon the defendant no.4 &
5. It is argued by the Ld. Counsel for the defendant no.4 & 5 that the plaintiff has not placed any document on record to show that she is residing at the property bearing no. 655/1 and therefore, she is not entitled to the relief of injunction. It is further contended that the plaintiff is not entitled to claim any equitable relief as she herself has carried out unauthorized construction in her property bearing no. 655/1 & she is running commercial activities from therein and she has suppressed the said facts.
41. The said arguments advanced on behalf of the defendants no. 4 & 5 are totally baseless. The defendants no. 4 & 5 have themselves stated in their cross-examination that the plaintiff is residing at the property bearing no. 655/1. Further, they have failed to adduce even an iota of evidence to show that the construction carried out by the plaintiff in her property is unauthorized & illegal or that she is running commercial activities from the said premises. The bare averments made to that effect by the defendants no. 4 & 5 and DW-3 are not sufficient to prove the same.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 24 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
42. In view of the aforesaid, it would be proper to observe that the defendant no. 4 & 5 have made bald assertions with respect to the plaintiff not having come before the court with clean hands. In the absence of any evidence, defendant no. 4 & 5 have miserably failed to prove the same. Thus, issue no.3 is decided against the defendants no.4 & 5 and in favor of the plaintiff.
Issue No. (4) Whether the suit of the plaintiff is liable to be dismissed on the ground that plaintiff has no locus standi and no cause of action in her favour? OPD 4 & 5.
43. The onus to prove the said issue is also upon the defendants no.4 & 5. The said defendants have neither orally nor by way of evidence has submitted or produced anything on record, in support of the said issue. The plaintiff is admittedly residing at the property adjacent to that of the plaintiff and that alone is sufficient to show that she has the locus to file the instant suit. Further, it has been asserted by the plaintiff that unauthorized & illegal construction was being carried out by the defendants no. 4 & 5 at their shops concerned in February 2017. The fact that the plaintiff has failed to prove the allegations levelled by her against the defendant no. 4 & 5 does not imply that she had no cause of action or locus to file the instant suit. Thus issue no. 4 is also decided against the defendant no. 4 & 5 and in favour of the plaintiff.
Issue No. (5) Whether the suit of the plaintiff is liable to be dismissed on the ground that the suit has not been valued properly for purposes of court fees and jurisdiction? OPD 4 & 5.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 25 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
44. The onus to prove the said issue was upon the defendants no.4 & 5. No evidence or argument to this effect has been advanced, on behalf of the defendants. The present suit has been filed by the plaintiff seeking relief of permanent & mandatory injunction, for which fixed court fee is required to be paid as per the provisions of the Court Fee Act. There is no dispute between the parties qua the possession of the suit premises and therefore, ad valorem court fee is not required to be paid by the plaintiff. Further, from the description of the property in question, it is apparent that it falls within the territorial jurisdiction of this court. In the given background, the assertion of the defendants that the suit has not been valued properly for the purpose of court fees & jurisdiction is without any merit. Thus, issue no.5 is decided against the defendants no.4 & 5 and in favor of the plaintiff.
Issue No. (6) Whether the suit of the plaintiff is liable to be dismissed on the ground of bar of limitation? OPD 4 &
5.
45. With regard to the given issue as well, defendants have failed to either produce any evidence or address any arguments. Infact, no questions with regard to the said issue were put to the plaintiff in her cross-examination. Further, as per the case of the plaintiff, defendants no. 4 & 5 had started raising the alleged unauthorized construction in February 2017 and the present suit was filed in March 2017, which shows that it has been filed within the prescribed period of limitation. Thus, issue no.6 is decided against the defendants no.4 & 5 and in favor of the plaintiff.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 26 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
46. Now, I shall proceed to give issue-wise findings of this Court in the Counter-Claim bearing CS SCJ No. 319/18 and the same are as under: -
Issue No. (1) Whether the counter claimant Sh. Jeet Ram Bhardwaj is entitled to relief of compensation/ damages as prayed for in prayer clause (a) of the counter claim? OPP/ counter claimant.
and Issue No. (2) Whether the counter claimant is entitled to relief of mandatory injunction as prayed for in prayer clause (b) & (c) of the counter claim? OPP/ counter claimant.
47. In order to decide the said issue, firstly, it is important to note that it is well settled rule of law that burden of proving his case to obtain the relief from the court is always upon the plaintiff, who must adduce, reliable and admissible evidence for the said purpose. The case of the plaintiff must stand on its own legs and plaintiff cannot take the benefit of the weakness in the case set up by the defendant.
48. In the present counter-claim, the onus to establish his case is upon the counter-claimant/Defendant no.4. However, perusal of the entire record, including the evidence adduced, shows that the counter-claimant/ defendant no.4 has miserably failed in doing so. The grievance of the counter-claimant/defendant no.4 is that the non-counter claimant no.1/ Plaintiff has constructed her property bearing no. 655/1 without obtaining any sanction/building plan from the authorities concerned and therefore, it is unauthorized & illegal. It is further claimed that the non-counter claimant no.1/ Plaintiff is running commercial activities from the said premises by letting out the same to the CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 27 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj paying guests and tenants. It is claimed that due to defective drainage system in the property of the non-counter claimant no.1/ Plaintiff, the property of the counter-claimant/defendant no.4 got damaged. Lastly, it is asserted that the non-counter claimant no.1/ Plaintiff has intentionally opened a window type space from her house towards the east side, which may be a cause of further litigation by her in future. Thus, counter-claimant/ defendant no.4 has prayed for damages of Rs. 2 Lakhs from the non-counter claimant/ plaintiff and sought relief of mandatory injunction, thereby directing the non-counter claimant no.1/ plaintiff to permanently close the said window, stop running illegal commercial activities form her premises and demolish the illegal & unauthorized construction in her property.
49. It is relevant to note that all the grievances raised by the counter-claimant/ defendant no.4 in the counter-claim, were expounded as his defence in the main suit and have been duly dealt with therein. The assertions made by the counter- claimant/defendant no.4 in the counter-claim, in the absence of any evidence to that effect are baseless & unfounded. A relief cannot be granted to the party on the basis of bald assertions. Counter-claimant/defendant no.4 & defendant no.5 have themselves stated in their testimony that the construction was carried out by the non-counter claimant no.1/ plaintiff, in her property in the year 2000 and they did not file any complaint against the non-counter claimant no.1/ Plaintiff, before any authority, till the year 2017-2018. Meaning thereby, the counter- claim is barred by the law of limitation and apparently, it has been filed as a counter blast to the suit of the non-counter CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 28 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj claimant no.1/ plaintiff. Moreover, it has been admitted by the said defendants that they have neither filed nor proved any photographs on record, which reflects/ shows that any damage has been caused to their property because of any of the acts of the non-counter claimant no.1/plaintiff.
50. Thus, issues no.1 & 2 are decided against the counter- claimant/ defendants no.4 and in favor of the plaintiff/ non- counter claimant no.1.
Issue No. (3) Whether the counter claim is not maintainable on the ground of suppression of material facts? OPD/ respondent no.1.
and Issue No. (4) Whether the counter claim is liable to be dismissed under order 7 rule 11 CPC? OPD/ respondent no.1.
51. The onus to prove the said issue is upon the non-counter claimant no.1/ plaintiff. However, again, neither any argument nor any evidence has been led by the non-counter-claimant no.1/plaintiff, in support of the said issues. There is nothing on record to suggest that the counter-claimant/ defendant no.4 has suppressed any material facts or that the counter-claim is liable to be rejected as per the provisions of the Order VII Rule 11 CPC. Thus, issue no. 3 & 4 are decided in favor of the the counter- claimant/ defendants no.4 and against the plaintiff/ non-counter clai mant no.1.
Issue No. (5) Whether the counter claim is liable to be dismissed on ground that counter claim has not been valued properly for purposes of court fees and jurisdiction? OPD/ respondent no.1.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 29 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
52. The onus to prove the said issue was upon the non-counter claimant/plaintiff. No evidence or argument to this effect has been advanced, on her behalf. The present counter-claim has been filed by the plaintiff seeking relief of damages of Rs 2 Lakhs and mandatory injunction, for which ad valorem & fixed court fee respectively, is required to be paid as per the provisions of the Court Fee Act, which has been duly paid and filed alongwith the counter-claim. In the given background, the assertion of the non-counter claimant no.1/plaintiff that the counter-claim has not been valued properly for the purpose of court fees & jurisdiction is without any merit. Thus, issue no.5 is decided against the non-counter claimant no.1/plaintiff and in favor of the counter claimant/ defendant no.4.
MISCELLANEOUS SCJ NO. 112/2017
53. Having decided all the issues in the main suit as well as the Counter-Claim, I hereby proceed to record finding in the Miscellaneous Application, filed by the plaintiff, against the defendant no. 4 & 5 under order XXXIX Rule 2A r/w section 151 CPC r/w section 11 &12 of the Contempt of Courts Act.
54. The background in which the present application was filed is that the Ld. Predecessor had restrained the defendants no. 4 & 5 from raising any further construction, addition or alteration at their shops bearing no. 655/2 & 655/3, vide order dated 06.7.2017, yet, defendants no.4 & 5 flouted the said directions. It is alleged that the defendant no.4 & 5, in violation of the said order, carried out the flooring & wooden work at their given CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 30 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj shops and therefore, they are liable to be punished under Order XXXIX Rule 2A for disobedience of the court's order. In support of the said allegations, plaintiff has relied upon the report of the local commissioner dated 12.07.2017 wherein, it is stated that at the time of inspection of the said shops flooring of the ground was not complete and certain photographs.
55. The allegations levelled by the plaintiff have been refuted by the defendants no.4 & 5 and it is submitted on their behalf that no construction was raised after the said injunction order of the court. It is further submitted that the defendants no.4 & 5 cannot be penalized on bald assertions of the plaintiff and therefore the application may be dismissed.
56. Before deciding the liability of the defendants no. 4 & 5 under Order XXXIX Rule 2A CPC, it would be apposite to elucidate the law laid down by the Superior Courts with respect to the said provision and for better appreciation of the point at hand, Order XXXIX Rule 2A CPC is reproduced as under:-
"2A:-.Consequence of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted or other Order made under rule 1 or 2 or breach of any of the terms on which the injunction was granted or the Order made, the court granting the injunction or making the order, or any court to which the Suit or proceeding is transferred, may Order the property of the person guilty of such disobedience or breach to be attached, and may also Order such person to be detained in the civil prison for a CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 31 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj term not exceeding three months, unless in the meantime the court directs his release.
(2) No attachment made under this rule shall remain in force for more than tone year at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
57. While explaining the scope of the given provision, the Hon'ble Apex Court in case titled as U.C. Surendranath vs Mamballys Bakery, AIR 2019 SUPREME COURT 3799 held as under: -
"7. For finding a person guilty of wilful disobedience of the order under Order 39 Rule 2-A CPC there has to be not mere "disobedience" but it should be a "wilful disobedience". The allegation of wilful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the court that the disobedience was not mere "disobedience" but a "wilful disobedience."
58. Further, in the case of Food Corporation of India Vs. Sukh Deo Prasad, 2009(3) SC 2330, the Hon'ble Supreme Court held that the power exercised by a Court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971 and such powers are to be exercised with great caution and responsibility and in case a final order order the decree lies in execution and not in an action of contempt or disobedience and in case of breach of CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 32 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj temporary injunction, the remedy is available under Order XXXIX Rule 2A which is punitive nature, akin to the power to punish for civil contempt under 1971 Act.
59. Thus, from the perusal of the abovenoted provision under Order XXXIX Rule 2A CPC and the precedents laid down by the Apex Court, it is clear that a person cannot be held liable under the given provision until, the breach of injunction is established by the other party. In the case at hand, except the undated photographs, nothing has been produced on record by the plaintiff to substantiate her allegations against the defendants no.4 & 5. The photographs have not been duly proved and therefore, cannot be relied upon. In the absence of any reliable evidence, plaintiff has miserably failed to prove that the defendants no.4 & 5 have committed breach of the ad interim injuction order dated 06.07.2017. Accordingly, the application under Order XXXIX Rule 2A CPC, having been filed by the plaintiff without any merit stands dismissed.
RELIEF
60. In view of the aforesaid findings, the suit of the plaintiff bearing no. CS SCJ 353/17, Counter Claim of the defendant no.4 bearing no. CS SCJ 319/18 and Miscellaneous Application of the plaintiff, filed under Order XXXIX Rule 2A CPC in the main suit, bearing no. 112/17, all stands dismissed.
61. No order as to costs. Decree-sheet be prepared, accordingly.
CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 33 / 34
CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj
Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj
62. File be consigned to record room after due compliance.
Digitally signed RUBY by RUBY NEERAJ Announced in the open court NEERAJ KUMAR Date: KUMAR 2024.09.09 on 09.09.2024 16:53:28 +0530 (Ruby Neeraj Kumar) SCJ-cum-RC South District, Saket Courts, New Delhi, 09.09.2024 CS SCJ 353/17, Saroj Vs South Delhi Municipal Corporation & Ors 34 / 34 CS SCJ 319/18 Jeet Ram Bhardwaj Vs Saroj Misc SCJ 112/17 Saroj Vs Jeet Ram Bhardwaj