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Delhi District Court

Mukesh Vats vs . Rajesh Sharma on 7 April, 2016

                                                                       Mukesh Vats Vs. Rajesh Sharma

                    IN THE COURT OF  CIVIL JUDGE­02 (SOUTH)
                       SAKET COURTS COMPLEX, NEW DELHI

In the matter of :
CS No. 679/14                                                       

         Mukesh Vats
         S/o Late Sh. Hari Narain Vats 
         R/o 10/8, Ward no.1,
         Shree Yogmaya Mandir,
         Mehrauli,
         New Delhi­ 110030                                                             ...Plaintiff


                                                              Versus      


         Rajesh Sharma
         S/o Late Sh. Madan Mohan Sharma
         R/o 10/25, Shree Yogmaya Mandir,
         Mehrauli,
         New Delhi -110030                                                  ...Defendant


         Date of Institution                                             :                17.08.2013
         Date of Reserving Judgment                                      :                05.04.2016
         Date of Decision                                                :                07.04.2016
         Final Decision                                                  :                Dismissed


                                   J U D G M E N T

( Suit for Permanent and Mandatory Injunction)

1. This is a suit for Permanent and Mandatory Injunction against the defendant.

2. Briefly stated, case of the plaintiff is that the Shree Yogmaya Mandir is an ancient temple situated in Mehrauli, New Delhi­110030 and is in existence since last many centuries. That the plaintiff and defendant are the baridars in the said temple and manage and control CS No. 679/14 Page 1 of 9 Mukesh Vats Vs. Rajesh Sharma the affairs of the temple as per their bari. That in the year 2005, defendant in order to establish his malafide motives formed the society by the name of "Shree Yogmaya Mandir Welfare and Management Society" and plaintiff being ignorant became a member of society. That when plaintiff came to know about the mismanagement and malfunctioning of society he raised his voice. That defendant filed a false suit bearing no. 70/2013 for mandatory and permanent injunction which was disposed off vide order dated 02.08.13. That defendant also filed suit no.239/13 to claim the possession of the room measuring about 12X12 which is being used by the baridars to keep parshad/pooja articles etc. The said room is hereinafter referred as "Suit property". That after disposal of the abovesaid suit, defendant started making structural changes in the suit property by opening another door in the suit property. That plaintiff objected the same being one of the baridars of the temple but defendant did not paid any heed. That defendant on 10.08.13 installed a gate/door in place of window from inside the room of the temple and thereafter started demolishing the wall from outside the suit property thereby making illegal constructional changes. That on 14.08.13, plaintiff and other baridars of said temple requested the defendant not to change the ancient structure of temple but all in vain. Hence, the present suit is filed by the plaintiff seeking following relief:­

(a) Permanent injunction with cost in favour of plaintiff and against the defendant, his legal heirs etc thereby restraining the defendant and such other person or persons from having access to the ingress and outgress from the third door being installed in the suit property as shown in green color in site plan.

(b) Permanent injunction with cost in favour of plaintiff and against the defendant, his legal heirs etc thereby restraining the defendant and such other person from making any structural changes in the suit CS No. 679/14 Page 2 of 9 Mukesh Vats Vs. Rajesh Sharma property as shown in red color in site plan.

(c) Mandatory injunction with cost in favour of plaintiff and against the defendant, his legal heirs etc thereby directing defendant to restore back the original window in place of the third door as shown in green color in site plan.

3. Upon service of the summons, defendant appeared and filed written statement denying the allegations as contained in the plaint. That the present suit is not maintainable in law in as much as the suit is bad for misjoinder and non­joinder of necessary parties. That the present suit is not maintainable in law in as much as no cause of action arose in favour of the plaintiff and against the defendant. That the suit property is being managed and controlled by the Yogmaya Mandir Welfare Society who has every right to do the needful qua the temple. That the plaintiff has not come before the court with clean hands and has concealed the material fact from the court. Hence the suit is liable to be dismissed.

4. Plaintiff filed replication to the WS of the defendant denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.

5. On the basis of pleadings of the parties, following issues were framed vide order dated 02.01.2014:­

1. Whether there is mis joinder and non joinder of parties? If so its effect? OPD

2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (a) of the plaint? OPP CS No. 679/14 Page 3 of 9 Mukesh Vats Vs. Rajesh Sharma

3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (b) of the plaint? OPP

4. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer (c) of the plaint? OPP

5. Relief, if any.

6. In order to prove his case, the plaintiff examined himself as PW­1 by tendering his evidence by way of an affidavit Ex.PW­1/A. He further relied upon documents Ex.PW­1/1 (the original site plan), Ex.PW­1/2 to Ex.PW­1/5 (original photographs), Ex.PW­1/6 (the page one of the newspaper "Times of India" dated 16.08.2013). Plaintiff also examined three official witnesses as PW­2, PW­3 and PW­4 and thereafter, closed his evidence.

In order to prove his defence, defendant got examined himself as DW­1 by tendering his evidence by way of an affidavit Ex.DW­1/A. He further relied upon documents Ex. PW­1/DC and Ex. PW­1/DD, Mark A, Ex. DW­1/D, Ex. DW­1/E, Ex. PW­1/DE, Ex. PW­1/DB and thereafter, closed his evidence.

7. I have heard the contentions of both the sides and also gone through the record carefully. My issue­wise findings are as under:

ISSUE NO.1 Whether there is mis joinder and non joinder of parties? If so its effect? OPD

8. The onus to prove this issue was upon the defendant. Ld. Counsel for defendant argued that plaintiff has not incorporated Yog Maya Mandir Welfare & Management Society as party to the suit as it CS No. 679/14 Page 4 of 9 Mukesh Vats Vs. Rajesh Sharma was proper and necessary party without whom final disposal cannot be done effectively. It is further argued that the suit property is in possession of society and any order passed against the defendant in this case cannot be given effect to as he will not be able to comply with same. Further the affairs and management of temple is controlled by society so if any action done by defendant in capacity of its General Secretary does not amount to violation and defendant cannot be held liable in his personal capacity. Hence, due to non joinder of necessary party the suit is liable to be dismissed.

On the other hand, Ld. counsel for plaintiff argued that temple is governed and managed by baridars and not by the society. Ld. Counsel relied upon document Ex.PW­2/A & Ex.PW­4/A to show that society has no control over the affairs of temple. It is further argued that defendant has failed to prove that society is in possession of suit property or that the structural changes has been brought by society not the defendant. Arguing further that defendant or society has not taken any steps to implead society as defendant if its right were affected by determination of rights in the present case. Hence, society cannot be considered as proper and necessary party to the suit.

9. A necessary party to the suit is that in whose absence the dispute in question cannot be effectually and completely adjudicated upon and would have direct effect by the finding/outcome of the final decision. Now it has to been whether society was proper and necessary party to the suit. It has come in cross examination of PW­1 that suit property is in possession of society where its registered office is being run since year of its formation in the year 2005. Ex.PW­1/DB & Ex.PW­1/DE are the written statements filed by plaintiff as defendant in other case where it has been categorically admitted that suit property is CS No. 679/14 Page 5 of 9 Mukesh Vats Vs. Rajesh Sharma being managed by society. Both the documents pertains to year 2009 and 2010 and it has been admitted by PW­1 in his cross examination that he has never made complaint against the functions of society since its registration till date nor he has withdrawn his membership from the same as plaintiff is also one of the member of society. In cross examination of PW­1 it has also come on record that society is running its office in the suit property. Categorical admission of plaintiff that the affairs of temple are controlled and managed by society and the suit property is in possession of society would definitely mean that any order passed in this case would affect the rights of society. Hence, it can be safely concluded that society is proper and necessary party to the suit which plaintiff has failed to incorporate/implead despite given opportunity. Due to non joinder of necessary party the present suit is liable to be dismissed.

Accordingly, this issue stands decided against the plaintiff and in favour of defendant.

ISSUE NO.2, 3 & 4

Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (a) of the plaint? OPP & Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (b) of the plaint? OPP & Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer (c) of the plaint? OPP

10. All these issues are taken up together being interconnected with each other for the purpose of discussion and findings. The onus to prove all these issues was upon the plaintiff.

Ld. Counsel for plaintiff argued that defendant has tried to CS No. 679/14 Page 6 of 9 Mukesh Vats Vs. Rajesh Sharma bring a structural and constructional change in the suit property by replacing a window by a door. It is further argued that plaintiff has proved on record that earlier a window was existing where the door has been installed and the same is being used illegally for ingress and outgress for defendant and other persons. Ld. Counsel further argued that document Mark A showing the copy of the photograph shows that there existed a window. Hence, the defendant be directed to restore the window and should be restrained from having ingress and egress to the suit property from the said door.

On the other hand, Ld. Counsel for defendant argued that firstly the plaintiff has failed to prove on record the existing and the earlier status of the suit property by leading any cogent evidence. Ld. counsel further argued that the Yog Maya Mandir Welfare & Management Society is the body which has been admitted by the plaintiff to be incharge of affairs and management of the temple so any change brought by it cannot be in violation to the rights of the plaintiff. Ld. Counsel further argued that the plaintiff has filed a false suit against the defendant out of personal grudge against the defendant and the same is reflected from the record as the cause of action is claimed to have arisen on 10.08.2013 in the plaint whereas the site plan Ex.PW­1/1 showing the alleged installation of the door is prepared on 27.07.2013. Hence, the plaintiff has not come before this court with clean hands. Therefore, it is prayed that suit of the plaintiff be dismissed.

11. Three factors are required to be examined to see whether plaintiff has been able to establish his case or not.

Firstly, whether the defendant has installed a door at the suit property replacing the window. The answer would be no for the reason that plaintiff has failed to lead any cogent evidence to prove the same.

CS No. 679/14 Page 7 of 9

Mukesh Vats Vs. Rajesh Sharma The only document relied upon by the plaintiff to show the earlier status of the suit property is Mark A i.e. a photocopy of a document that has been procured from the judicial record which is a copy to copy document and not a certified copy of the original document so the same cannot be read into evidence. The allegations of the plaintiff also falls flat in view of the material contradiction in his stand as in para no. 19 of the plaint the cause of action is stated to have firstly on 10.08.2013 when the defendant removed the window and installed the door inside the suit property whereas the site plan Ex.PW­1/1 showing the newly installed door was prepared on 27.07.2013. So it can safely be concluded that plaintiff has tried to mislead the court in this respect. Either there existed no third door at the suit property or if the door is existing it has not been installed by replacing the window.

Secondly, whether defendant can be restrained from bringing structural change in the suit property. It has already been observed above that defendant has not brought any structural change in the suit property so he cannot be restrained doing so in future. It has already been held in the previous issue in view of the admission of plaintiff himself that the society is looking after day to day affairs and management of the temple and have been carrying repairs etc. in the suit property so any such plea can be brought forward by the society only and no baridar in his individual capacity can seek such relief.

Thirdly, whether defendant has been doing any such activity against the interest of the society or the baridars in order to be restrained from having free ingress and egress to the suit property through the third door. Nothing on record suggest that defendant has been doing any illegal activity at the suit property. Admittedly, plaintiff and defendant both are the baridars and have right to use the suit property as and when their turn comes. It is also not disputed that the CS No. 679/14 Page 8 of 9 Mukesh Vats Vs. Rajesh Sharma society is running its registered office from the suit property which have never been objected by the plaintiff at any point of time, so no cause of action lies with the plaintiff to seek restrainment order against the defendant who is working as a General Secretary of the said society and has a right to have free ingress and egress to the suit property for performing his duties.

12. It is settled position of law one who comes before the court must come with clean hands. The relief sought herein being an equitable relief can only be granted if the plaintiff has also done equity. In view of the observations given above, this court is of the opinion that plaintiff has failed to discharge his onus to prove these issues, thus, not entitled to any equitable relief as prayed herein. Accordingly, all the above issues stands decided against the plaintiff and in favour of the defendant.

Relief:

13. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.

14. File be consigned to the record room after due compliance.

Announced in the open Court                                         (Vishal Pahuja)
on 7th April, 2016                                            CJ­02 (South)/Saket Courts
                                                                  New Delhi/07.04.2016  




CS No.  679/14                                                                  Page 9 of 9