Delhi District Court
Kulwant Singh & Anr vs Suresh Chander Goyal & Ors on 12 April, 2010
In the court of Ashwani Sarpal, Addl. District Judge-05,
West District, Tis Hazari Court Delhi.
Kulwant Singh & anr.
------Appellants/Defendants
vs.
Suresh Chander Goyal & ors.
------Respondents/plaintiffs
(RCA no. 22/09)
Date of filing of appeal--26-11-2009
Date of decision------------12-4-2010
(Appeal against the judgment and decree passed
by ld. Civil Judge dated 21-10-2009 in suit no. 119/06)
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JUDGMENT:-
Respondents no. 1 to 3 (herein after referred to as plaintiffs) had filed a suit under section 91 CPC for declaration and permanent injunction on 12-2-1990 before the Hon'ble High Court which was subsequently transferred to lower court due to change of pecuniary jurisdiction. In their suit, plaintiffs claimed one relief of declaration, four different reliefs of permanent injunctions and five different types of reliefs of mandatory injunctions. This suit was partly decreed by the ld. Civil Judge on 21-10-2009 against which appellants (herein after referred to as defendants) have now come before this court in an appeal. It is important to mention here that plaintiffs neither filed any cross objections nor filed any counter appeal in respect of those issues or findings which had 2 gone against them. However on verbal request of counsel for plaintiffs, still I deem it proper to reconsider those findings of ld. Trial Court which have gone against them. I have heard counsels for both the parties and gone through the trial court record as well as case laws cited.
The present suit was filed by plaintiff no. 2 (a Private Limited Company) and plaintiff no. 3 (an individual) under section 91 CPC. Plaintiff no. 1 being the Managing Director of plaintiff no. 2 company was allegedly authorized to institute and prosecute the suit. From the averments made in paragraph no. 1 of the plaint, it is clear that plaintiff no. 1 had filed the suit not in his individual capacity but being the representative of plaintiff no. 2 company. Along with the suit an application under section 91 CPC was also filed for permission to institute the suit in representative capacity in public interest to prevent public nuisance or wrongful act effecting public at large. This application however could not be disposed off and when at final arguments stage, ld. Trial Court was informed about it then an order dated 13- 2-2009 was passed to decide the same along with the final judgment but perhaps ld. Trial Court forgot about it and the same could not be dealt with. Keeping in view the fact that matter is very old and remanding back would further delay the matter so I deem it proper to proceed with this appeal on merits.
The suit was instituted with allegations that defendants had encroached upon plots no. 7B/1 and 7B/2, Taimur Nagar, New Delhi belonging to DDA by demolishing its boundary wall and had started raising unauthorized construction upon it by procuring sanctioned plan from MCD through false averments and misrepresentations. They had also encroached upon the 80 feet public road abutting the houses of plaintiffs and stacked the building material/ debris etc. on that public road which amount to public nuisance. Ld. Trial Court on basis of pleadings, framed 10 different issues and after taking evidence of both parties, decreed the suit partly. On behalf of plaintiffs, only two witnesses were examined whereas defendant no. 2 examined himself. Statement of PW-3 being left incomplete cannot be read in evidence.
3First of all, before dealing with each and every relief claimed in the suit, the following important facts and point of law raised before this court are being dealt with one by one on the basis of evidence led in Trial Court. (A) To whom plots no. 7B/1 and 7B/2, Taimur Nagar belongs to:- Plaintiffs alleged that these two plots belonged to DDA and have been wrongfully encroached upon by the defendants who claimed that the same are owned by them. There is no dispute that these two plots falls in Khasra no. 809/1/1 of village Kilokri. It has come on record that this land in question belonging to Sh. Avtar Singh was notified by the govt. for acquisition vide award no. 26/1973- 74 which is Ex. PW1/2. However owner Sh. Avtar Singh challenged the acquisition proceedings in Hon'ble High Court and as per the certified copy of order of High Court dated 23-3-1992 Ex. D-2 passed in LPA no. 82/1978, this acquisition proceeding was quashed. Copy of sale deed Ex. D-1 produced on record shows the ownership of Sh. Avtar Singh in respect of these plots which is not refuted by the plaintiffs.
Ld. Trial court held due to some discrepancies in the statement of DW-1 and his inability to read sale deed written in Urdu language that ownership of defendants is not proved qua these two plots and he could not prove the sale deed. The English translation of this sale deed is available on record. The certified copy of sale deed was placed on record by defendants but ld. Trial Court rejected the same and treated as only a photocopy and described it as inadmissible document. At page no. 3 of their written arguments lying on record of ld. Trial Court, plaintiffs themselves had admitted that plots in question belonged to Sh. Avtar Singh. Plaintiffs in the cross examination of DW-1 also admitted the ownership of Sh. Avtar Singh. Due to this admission of plaintiff, the ld. Trial Court was not correct to hold contrary while deciding issue no. 2. Even if certified copy of this sale deed is ignored being inadmissible in evidence then also from the copy of award Ex. PW1/2 produced by the plaintiffs themselves it can be found that the compensation was assessed in the name of Sh. Avtar Singh, owner of the acquired plots. Defendants are the sons of Sh. Avtar Singh. DDA in its written statement also specifically stated that it has no concern with these plots. MCD did not come forward to raise any right in these plots which admittedly are in possession of defendants as stated 4 by PW-1 in his cross examination. Plaintiffs have failed to prove from any revenue record or of any govt. agency that defendants had encroached upon any excess area beyond the boundaries of their plots situated in Khasra no. 809/1/1. Hence the version of the plaintiffs that defendants had encroached upon the plots no. 7B/1 and 2, Taimur Nagar belonging to DDA is held as a false fact. Defendants being the owner of these two plots had every right to occupy the same and to raise constructions as per law. Plaintiffs have made wrong statement in this regard in their plaint without verifying the correct facts and made reckless averments. In such circumstances, the findings of ld. Trial court in holding while dealing with issue no. 2 that defendants are not the owner of these two plots are liable to be reversed.
(B) Whether suit is maintainable being instituted u/s 91 CPC in representative capacity:- Suit was filed by plaintiff no. 2 and 3 in representative capacity for prevention of alleged public nuisance under section 91 CPC. Plaintiff no. 1 as per averments made in the plaint is only representing the plaintiff no. 2 company and not claiming any independent right in individual capacity though is resident of same locality. Contents of affidavit of PW-1 also show that the suit was filed by plaintiff no. 1 for and on behalf of plaintiff no. 2 company on basis of specific resolution Ex. PW1/1. In their written submissions filed in the court, plaintiffs also specifically stated that it was filed for benefit of public at large and not against any wrong done in individual capacity. From the averments made in the plaint, it can be said that this suit was filed only by plaintiff no. 2 and 3 purportedly under section 91 CPC and plaintiff no. 1 came into picture only as representative of plaintiff no. 2 and not for any other purpose.
Different consideration arises where a suit is filed in individual capacity and where it is filed in representative capacity under section 91 CPC. Section 91 requires institution of suit at least by minimum two persons with prior permission of the court. Plaintiffs never pressed their application for sue in representative capacity for about 20 years which leads to the inference that they never intended to invoke this provision. Plaintiff no. 3 did not step into the witness box to prove the allegations made in the plaint. PW-1 in his statement 5 specifically admitted that he was deposing only on behalf of plaintiff no. 2 company and not for plaintiff no.1 or 3. Plaintiff no. 1 also has not come forward to give any statement to show that he was also affected in any individual capacity. Thus keeping in view the deposition of PW-1, it can be held that the suit was never intended to be instituted in representative capacity but maximum for enforcing the individual rights of the plaintiff no. 2 company. Accordingly, it is held that suit was not instituted under section 91 CPC in any representative capacity but it was filed for enforcement of independent individual rights of plaintiff no. 2 and 3.
Otherwise also the lay out plan of the area shows that Maharani Bagh area was allotted to a society and the land upon which houses of plaintiff no. 1 and 3 were constructed were given on sublease. That society had not come forward to raise any objection so in such situation, plaintiffs who were merely a sub-lessee or occupier of the house as tenants had no right or locus standi to file the suit.
The findings of ld. Trial Court while deciding issues no. 1 and 6 together were erroneous and confusing as it was not sure whether suit was instituted for enforcement of individual rights or in representative capacity or both. Otherwise also, ld. Trial court has not given any findings that act of the defendants amounted to any nuisance and how and in which manner it was committed. In such situation it is held that the suit was not maintainable under section 91 CPC but was filed for the enforcement of individual rights only.
(C) Whether plaintiffs were able to show their individual private rights to institute the suit:- It is already held above that suit was infact not instituted in representative capacity but it was for enforcement of individual rights. Plaintiff no. 1 had not instituted the suit in any individual capacity but had signed the plaint in the capacity of authorized officer of plaintiff no. 2 company. Neither plaintiff no. 1 nor plaintiff no. 3 came in the witness box to prove their allegations in respect of alleged infringement of any of their individual private rights. Due to non examination of plaintiff no. 1 and 3, the averments made in the plaint regarding alleged infringements of their rights are not established 6 qua them because PW-1 specifically stated in his statement that he was deposing only on behalf of plaintiff no. 2 company and not for plaintiff no. 1 and 3. Only evidence was led by plaintiff no. 2 company to show the existence of right to file the suit in individual capacity. However if statement of PW-1 is read as a whole then it can be said that no individual right of the plaintiff no. 2 company was violated and thus the suit was infact not maintainable on behalf of this company also. The evidence led on record fails to show the existence of any independent right of plaintiff no. 2 company under section 91(2) CPC.
Ld. Trial Court while deciding issue no. 1 and 6 jointly is of the view that suit is maintainable as plaintiffs had locus standi to file it under their individual private rights. Plaintiff no. 2 was a company and it could only represent through its officers. In the plaint there is no reference of any specific resolution of the company authorizing plaintiff no. 1 its Managing Director to institute suit on behalf of company. No date of passing of any such resolution is given in the plaint. During evidence PW-1, original minutes book of the company was produced but from the cross examination of this witness it has come on record that this minute book has been manipulated. Lots of discrepancies in this minute book have been shown which create doubt about the genuineness and legality of the same. No presumption of correctness of this minute book can be raised in such circumstances. The resolution produced on record was passed on 7-9-1987 about three years prior to the date of institution of the suit and was inserted in the minute book lateron. This resolution gives general powers to plaintiff no. 1 to institute suits on behalf of plaintiff no. 2 company. No specific resolution dated 10-11-1989 was produced or proved on record authorizing to institute the present suit though copy of the same was filed on record by the plaintiffs. This resolution dated 10-11-1989 was even not relied upon by PW-1 in his evidence. Ld. Trial Court had also raised finger upon the genuineness of this minute book and resolution Ex. PW1/1 and those findings could not be rebutted by plaintiffs even during the arguments before this court. Accordingly it is held that at the time of institution of this suit, there was no legal and valid authorization in favour of plaintiff no. 1 to institute the suit on behalf of plaintiff no. 2 company and the 7 resolution Ex. PW1/1 inserted in minute book is fake and fabricated document.
Counsel for plaintiffs cited case laws Kingston Computers vs. State Bank of Travancore ILR (2009) II Delhi 1 and Capital Land & Builders Pvt. Ltd. vs. Tirath Singh CM(M) 1419/2006 decided by Delhi High Court on 12-7-2007 and argued that no director or managing director is required any power to institute any suit on behalf of company. In my view these case laws can be distinguished from the facts and circumstances of the present case. Here in this matter, no business transactions of the plaintiff no. 2 company was involved and the matter was sought to be instituted in public interest unconnected with any object and aim of the company. When plaintiff no. 2 had passed a specific resolution in this regard and alleged about it in the plaint then it was required to be proved.
PW-1 in his statement showed ignorance of various facts. His version on number of points was only hearsay evidence as he had no personal knowledge of the same. He showed ignorance upon number of material facts. Before giving statement, PW-1 did not tried to check what happened ultimately to the acquisition proceedings in respect of plots in question, whether show cause notice given by MCD to defendants was set aside or not, whether construction has already been completed much prior to the institution of the suit or not etc. In his affidavit of evidence he claimed to have knowledge of the facts of the case but from his cross examination, it has come on record that his knowledge was not personal in nature but based upon hearsay evidence or upon unverified facts. Moreover when plaintiff no. 2 company had already left from the area then continuation of the proceedings was nothing but a misuse of judicial process. Plaintiffs continued to prosecute the suit despite coming to know about the facts that defendants were the real owners of the plots and had raised constructions as per law with sanctioned plan and had permission of MCD to throw debris on the road/open space. In the present situation, the evidence of PW-1 is liable to be rejected as he had deposed on some facts which are not only contradictory to the plaint, his own affidavit of evidence but also beyond the same. Infact the allegations of existence of public road was changed 8 and modified by the plaintiffs in the evidence and converted into the open space.
The office of plaintiff no. 2 company never remained in the vicinity of the suit property because as per plaint it was in Connaught Place. Only residential accommodation bearing no. B-45, Maharani Bagh of its MD i.e. plaintiff no. 1 was there which was taken on lease by the company and given for use of MD. Otherwise also, even if for the sake of arguments, it is presumed that office of plaintiff no. 2 company was in existence near the suit property at one time as stated by PW-1 and its some individual right was affected but according to admission of PW-1, its office had now been closed. Thus the cause of action for plaintiff no. 2 even if for the sake of arguments once existed had now been extinguished. PW-1 admittedly not deposing on behalf of plaintiff no. 1 and 3 and they have not examined themselves so plaintiff no. 1 and 3 have failed to establish the existence of any cause of action in respect of their own individual independent rights. Suit on these grounds was liable to be dismissed.
Moreover plaintiffs on the last page of their written submissions filed in the Trial Court have specifically stated that the suit was not filed for any private wrong but for a cause affecting the community and public in general. In view of this admission made on behalf of the plaintiff, this suit is liable to be dismissed on this ground as suit under section 91 CPC was not maintainable and infringement of private right is not claimed. Accordingly, it is held that the suit was not maintainable even instituted on basis of enforcement of private individual rights. In such circumstances, granting of reliefs by the ld. Trial Court while holding that plaintiffs have locus standi to file the suit in their private individual rights is liable to be set aside.
(D) Constructions on plots no. 7B/1 and 7B/2 whether illegal:- Plaintiffs admitted in their plaint itself that defendants had obtained sanctioned site plan for raising constructions upon these two plots from competent authority i.e. MCD. The question whether it was obtained legally or in illegal manner by making misrepresentations and false averments is not to be seen by this court as remedy lies somewhere else. Plaintiffs had no authority to challenge the 9 incorrect or wrongful sanctioning of site plan in favour of defendants in this proceedings.
Plaintiffs alleged that MCD had issued show cause notice Ex. PW1/3 to the defendants for cancellation of the sanctioned plan Ex. DW1/P-1 and P-2 but what happened thereafter is not known to PW-1, witness of the plaintiffs. DW-1 has placed on record the certified copy of order of MCD Ex. D- 11 which shows that show cause notice issued to the defendants was withdrawn and authenticity of sanctioned site plan was confirmed. PW-3 was summoned from the office of MCD by the plaintiffs but his statement was left incomplete and he was not recalled lateron. The best evidence to show that sanctioned plan was procured by the defendants illegally and by playing fraud has not been produced by the plaintiffs which compels the court to draw adverse inference against them. Non taking of any steps till date by the MCD against defendants further proves the fact that construction raised by them was in accordance with the proper and duly sanctioned site plan. Moreover the completion certificate issued by MCD Ex. D-3 and D-4 dated 1-2-1990 and 19- 2-1990 further establish that construction raised was in accordance with the sanctioned plan and had already been completed as such certificate is issued after verification of construction raised. This certificate was issued much prior to the date of institution of the suit and thus plaintiffs had no cause of action to challenge the construction already raised and were not competent to claim relief of restraining defendants from raising any construction which infact had already completed. PW-1 had also admitted in his cross examination that no construction was going on at the time of his giving statement in court.
It is already held above that the suit was neither filed in representative capacity nor any of the individual rights of the plaintiffs were found violated due to any evidence. Counsel for plaintiffs relied upon case law Onkar Nath vs. Ram Nath AIR 1985 Delhi 293 and argued that any citizen can raise objection against illegal construction and suit for injunction filed by such citizen shall be maintainable. However this decision is not applicable in the present facts and circumstances of the present case because no illegal construction was raised by the defendants as they had obtained sanctioned site plan from MCD. No evidence is brought on record that construction raised 10 by defendants was contrary to or deviated from the sanctioned plan. Otherwise also as per this judgment, only immediate neighbrourer who directly suffer has a right to challenge the illegal construction. Plaintiffs by no stretch of imagination can be held as neighbrour of the defendants as they were resident of different localities and their houses are situated at a distance of minimum 80 feet. Plaintiffs have not leveled any allegations of infringement of their privacy or obstruction of air or light due to this construction. Hence in such situation, plaintiffs otherwise had no right to challenge the construction being not affecting directly to them or violating any of their individual independent right. Accordingly it is held that plaintiffs have failed to show that defendants had raised any illegal construction or violated the sanctioned plan. The findings of the ld. Trial Court that plaintiffs had locus standi to institute suit as an individual and could challenge the construction was not correct.
(E) Whether there is 80 feet road or 80 feet open space:- Case of plaintiffs since beginning as per plaint is that there is a 80 feet public road in between the plots of plaintiffs and defendants which was being encroached upon by the defendants but in this regard, the version was changed during trial and that 80 feet road was described as 80 feet open space by PW-1. This witness admitted in his cross examination that description of this space as a road in the plaint was infact an incorrect fact.
PW-1 admitted in his cross examination that no encroachment of this open space has been done by the defendants. No evidence is brought on record that this open space was ever allotted to the plaintiffs or to Maharani Bagh Co-op House Building Society. This space separate areas of Maharani Bagh and Taimur Nagar and is not shown in the lay out plan of both areas placed on record. Keeping in view that no one or any agency has come forward to raise any claim over this space, so it can be said as 'no men's land' upon which residents of both areas can approach or utilize. As it is not brought on record by any evidence that this open space was earmarked for any public purpose so restriction under section 313 DMC Act is not attracted and defendants cannot be prohibited from using the same for their ingress-outgress purposes. Moreover when as per PW-1, plaintiff no. 2 company is not working 11 from the area and had already left as well as plaintiff no. 1 and 3 have not come forward to prove the infringements of their individual rights, then in that circumstances, suit is liable to be dismissed as cause of action does not survive even if presumed to be in existence at one time. Due to admission made on the part of the plaintiffs, it is held that defendants had not encroached upon any public road as alleged in the plaint.
(F) Whether for opening of doors and windows any permission of MCD is required:- Defendants had obtained sanctioned site plan from MCD for the purpose of raising constructions over their plots. Their plots are situated adjacent to open space towards which plaintiff had already have doors and windows. There is a gap of minimum 80 feet in between houses of plaintiffs and defendants. It is not the case of plaintiffs that their privacy had been violated due to alleged opening of windows and doors towards that open space which is lying unutilized and not being used by any public person except by the residents of only few houses. Neither DDA nor MCD came forward to claim this space belonging to them.
Admittedly this space also did not belong to the plaintiffs. PW-1 in his cross examination has admitted this fact. When plaintiffs can open their doors and windows towards this open space then they cannot obstruct the defendants from doing so, as it was not the exclusive property of the plaintiffs. No evidence is brought on record by the plaintiffs that any govt. agency had raised any objection about it. This open space does not belong exclusively to the plaintiffs but every resident of locality has a right to use the same until the land owning agency or rightful owner has any objection. Defendants have not denied the right of the plaintiffs to use this space but also have claimed similar rights. The parties can use the open space for ingress and outgress purposes in respect of their respective properties but no one can encroach upon the same and treat it exclusively belonging to them until the competent authority or rightful owner of the same objects. Otherwise also some photographs placed on record by the defendants clearly show that old doors existed in their boundary wall towards the open space. In the report of local commissioner which was not 12 challenged or disputed at all, it was found that defendants had the necessity to open the doors towards the open space in question.
Admittedly in the sanctioned site plans, no rear entrance towards this open space or existence of any service road is shown but it does not mean that defendants cannot open their doors and windows towards the same. Sanctioned plan is mainly issued only in respect of construction of building, its nature and extent. Section 2 (3) of DMC Act does not include boundary wall with the definition of 'building'. Bye law no. 6.4.1(d) of DMC Act says that no permission is required for opening door and windows which do not open towards other's property. The doors and windows which defendants made were towards the open space at a distance of more then 80 feet from the property of the plaintiffs and thus they had not caused any interference or obstruction in the enjoyment of plaintiffs in their respective properties. Defendants had thus right to open door and window toward western side of their plots towards open space which did not belong to plaintiffs or to anyone. The findings of ld. Trial Court that since in the sanctioned plan no doors and windows towards western side were shown so defendants had no right to open the same is not correct as sanctioned plan is issued for building and not boundary walls.
It has come on record that building of defendants was constructed inside beyond the boundary wall at a distance of about 5 feet as admitted by PW-1. Even if in the sanctioned plan no door is shown towards western side then that was in the building and there was no prohibition for opening of doors in the boundary wall. Defendants have not changed or altered sanctioned site plan in any manner by opening of door towards open space in the main building but it was done in the boundary wall for which no permission was required under Building Byelaws no. 6.4.1 (d).
From the evidence led by the defendants, it is revealed that plaintiffs are infact trying to use this open space exclusively for their own purpose when the same does not belong to them. Report of local commissioner Ex. PW1/D-2 and various photographs Ex. PW1/3, PW1/4 and PW1/D-3 to D-12 placed on record by the defendants clearly point out that to grab this open space and to use it exclusively, this suit was instituted. Plaintiffs have put the barricade around this open space and using the same for parties etc. The correctness of 13 these photographs were not challenged by the plaintiffs. From the same, it can be held that plaintiffs wanted to use this open space exclusively for their own purposes which did not belong to them and thus infact had encroached the same. They had fear in their minds that they would be deprived of use of this space had defendants opened their doors and windows towards it. The ulterior motive and bad intention behind filing of this false suit is clearly made out from this evidence. There is no hesitation to say that plaintiffs filed this false and baseless suit with lot of incorrect averments for their own ulterior motives in order to grab the open space and caused unnecessary harassments to the defendants for years. Accordingly it is held that defendants had every right to open doors and windows towards the open space of 80 feet situated on western side of their plots and injunction granted by ld. Trial Court was not correct.
(G) Use of open space by throwing debris/building material by defendant whether amounts to encroachment:- Defendants had obtained sanctioned plan from MCD for raising construction in their houses and plots. Naturally when any construction is raised then building material is collected at the spot and debris/waste material also is kept and collected near the spot for few days. Defendants have brought on record documentary evidence that they had sought permission of MCD to throw debris etc. while raising constructions and in this regard also deposited the necessary stacking charges with MCD vide Ex. D-8. The permission of MCD does not specify at which particular place, this waste material/debris was required to be stored or thrown. It was not probable and feasible for defendants to throw the same on the road situated on eastern side of the plot which was a heavily used road known as Holy Family Hospital Road and a distance of about 300-400 feet was required to be covered from the construction site to reach eastern side while taking a round of number of houses. There was no illegality committed by defendants in throwing or dumping this material in open space behind their plots which was lying unutilized instead of dumping the same upon a busy public road existing towards eastern side at a long distance.
14Moreover PW-1 in his cross examination admitted that now no building material or debris are lying in the open space. Thus the relief in respect of this aspect has already become infructuous.
(H) Concealment of real facts and filing false claim disentitle plaintiffs any relief:- Law is well settled that relief of injunctions are discretionary reliefs and if plaintiff comes to the court with unclean hands and base its claim on wrong facts or suppress the real facts then his suit can be dismissed straightway without even considering any merits. In this regard reliance can be placed upon the decision given in cases Paramount Publicity vs. MCD 1995 I AD (Delhi) 91, Rohit Dhawan vs. G.K. Malhotra AIR 2002 Delhi 151 and M/s Seemax Construciton vs. State Bank of India AIR 1992 Delhi 197M/s Seemax Construciton vs. State Bank of India AIR 1992 Delhi 197.
Plaintiffs since beginning claiming that defendants had encroached upon the 80 feet public road but as per admission of PW-1, it was not a road but was only an open space. During cross examination, PW-1 admitted that mentioning of road in the plaint was an incorrect fact. If plaintiffs had a right to open their doors towards this open space then defendants had equal rights as their property was also situated adjacent towards this open space as this space was not owned by any govt. agency and no private individual has come forward to raise any claim over it.
Plaintiffs filed site plan Ex. PW1/D-4 along with the plaint and their witness PW-1 admitted in his cross examination that it was wrong. Plaintiffs have not come to the court with clean hands and based their claim on wrong and incorrect documents. The suit was instituted much after the construction had already been completed and defendants had already obtained completion certificate from MCD. The averment made in the plaint that defendants were not the owner of the plots in question was also found wrong. Due to concealment of real facts and basing claim on incorrect facts, suit of the plaintiffs was required to be dismissed straightway without even considering any merits.
Plaintiffs in their written submissions filed in Trial court took various stands regarding violation of the Zonal plans, layout plans, alleged 15 manipulations of documents by Sh. Avtar Singh to frustrate acquisition proceedings, allotment of open space for Maharani Bagh Association, illegality of sanctioned plan due to sub division of plots, dispute about the exact area owned and possessed by defendants, status of Taimur Nagar as of unauthorized regularized colony etc. which were never alleged in the plaint nor established sufficiently through evidence and thus totally gone beyond their pleadings. Such submissions raised first time in written arguments cannot be taken into consideration. Some of facts alleged in this regard in the evidence of PW-1 are liable to be discarded on the ground of beyond pleadings.
Reliefs/decrees claimed by the plaintiffs in their suit:- After considering the above facts, the reliefs/decree claimed by the plaintiffs are being dealt with as under one by one.
(i) For declaration to declare that defendants have no right over the plots no. 7B/1 and 2, Taimur Nagar:- Plaintiffs have no concern with these plots which were owned and possessed by the predecessor in interest of the defendants. The version of plaintiffs that it belonged to DDA is found false. In view of the findings given above in paragraph no. (A), no decree of declaration as prayed for by the plaintiffs can be granted. The finding given by ld. Trial Court is hereby upheld.
(ii) For permanent injunction restraining defendants from encroaching upon public road situated on the western side of plots no. 7B/1 and 2:- Since it is held above in paragraph no. (E) and (G) that no public road exists and it is infact an open space which is not belonging to any of the parties, DDA or any other authority so defendants have also equal right to use the same as was being used by the plaintiffs until the rightful owner of the same raises any objection. The relief of injunction as prayed for by the plaintiffs can otherwise also liable to be rejected due to concealment of real facts and making false averments in the plaint. The injunction granted by ld. Trial Court in this regard is set aside.
16(iii) For permanent injunction restraining defendants from raising construction over the plots no. 7B/1 and 2:- Ld. Trial Court has restrained the defendants with blanket order which cannot be sustained. The rightful owner of these plots can raise construction by obtaining sanctioned site plan from MCD. Otherwise also, plaintiffs have failed to show that construction raised on these plots was unauthorized or illegal. Defendants had obtained sanctioned site plan and thus was having legal right to raise constructions. Moreover from the completion certificate issued much prior to the date of institution of the suit, it has been proved that construction had already been completed and thus injunction relief did not survive being without any cause of action. The non granting of any relief to the plaintiffs by ld. Trial Court under this relief is hereby confirmed in view of the findings given above in paragraph no. (D).
(iv) For permanent injunction restraining defendants from throwing debris or storing building material on the public road:- This relief had already become infructuous as no building material or debris was lying as admitted by PW-1. Otherwise also for future also, ld. Trial Court was not justified in passing blanket order as competent authority can grant permission to throw debris in the open space under municipal laws. The decree of injunction passed by ld. Trial Court in this regard is set aside.
(v) For permanent injunction restraining defendant no. 3 from digging or raising any construction on public road:- This relief was claimed against defendant no. 3 who never appeared and became exparte. No specific allegations against him were made in the evidence of PW-1 how and in which manner he had dug the open space or what construction he had raised or to what an extent he spread over the soil on the public road. No injunction in this regard can be granted to the plaintiffs on basis of vague and general type of averments made in the plaint and not supported in the evidence of PW-1. It appears that defendant no. 3 was wrongly made a party in this proceeding as if any cause of action existed against him, it was an independent and separate cause of action. The 17 decree of injunction passed by ld. Trial Court under this prayer is also set aside.
(vi) For mandatory injunction directing MCD and DDA to perform their duties:- This relief does not survive as no cause of action had arisen in favour of plaintiffs regarding any illegal or unauthorized act done by the defendants. When no illegal action was done on the part of defendants then no directions can be given to these agencies. Otherwise also no blanket order can be issued by the court. The decree of mandatory injunction passed by ld. Trial Court under this relief is set aside.
(vii) For mandatory injunction directing defendants to remove the soil, debris, building material from the public road:- When now no such material if found lying at the spot as admitted by PW-1 then this relief does not survive and has become infructuous. The non granting of any injunction by the ld. Trial Court in this regard is confirmed.
(viii) For mandatory injunction directing defendants to demolish the illegal construction raised on plots no. 7B/1 and 2:- Defendants had raised constructions as per sanctioned plan duly issued by MCD. Plaintiffs have failed to show from any single evidence that construction raised was contrary to the sanctioned plan. Opening of doors and windows towards the open space even though not mentioned in the site plan were not prohibited under municipal byelaws. Hence no direction can be given for demolition of any such construction which has not been proved on record as illegal. The non granting of any directions in this regard by ld. Trial Court is confirmed.
(ix) For mandatory injunction to construct the building as per sanctioned plan and not to open door and window towards western side of the building:- This relief being connected with the relief no. (viii) mentioned above also cannot be granted as nothing is brought on record that raising of construction by the defendants was contrary to the sanctioned site plan or opening of window and doors towards western side was illegal. Plaintiffs could not be effected by this opening in any manner except that their intention to grab the open space becomes 18 frustrated in view of findings given above in paragraphs no. (D) and (F). The decree granted by ld. Trial Court under this relief is set aside.
(x) For mandatory injunction directing defendants to raise brick wall towards west of plots no. 7B/1 and 2:- Defendants cannot be compelled to raise boundary wall of their plots as it is their discretion whether to construct bricks boundary wall or not keeping in view their own security. When no nuisance is shown having been caused to the plaintiffs due to non construction of boundary wall then no such directions can be given. Building byelaws does not compel any owner to construct boundary wall. Hence no such directions can be given. The relief of mandatory injunction granted by the ld. Trial Court in this regard is set aside.
In view of the findings given above, the appeal is allowed and judgment and decree passed by ld. Trial court is set aside accordingly qua the reliefs granted against the defendants. The suit filed is ordered to be dismissed. It is held above that plaintiffs had filed suit with false averments by concealing real and correct facts and dragged the litigation for about 20 years and their real intention was infact to grab the open space lying unused not belonging to any person and due to this ulterior motive they instituted the suit without verifying actual and real facts. This was nothing but a false, frivolous and vexatious litigation instituted by the plaintiffs. From the deposition of PW-1 it has also come on record that plaintiffs filed the suit unnecessarily which caused lot of harassment to the defendants and might have wasted their lot of hardened money during this period of 20 years. PW-1 deposed various facts which were contrary to the plaint and case of the plaintiffs. Number of facts deposed by PW-1 on behalf of plaintiff no. 2 company were either hearsay or unverified and he had no personal knowledge about the same. The minutes book produced by plaintiffs was found fabricated and manipulated. According to Delhi High Court in Prithipal Singh vs. Board of Control of Cricket 1992 RLR 404 the plaintiff can be held liable for perjury due to concealment and suppression of material facts. For these wrongful acts and conduct, plaintiffs can be prosecuted for criminal offences but keeping in view that plaintiff no. 2 is a company and it is not known whether it still exists or not as well as the 19 fact that plaintiffs no. 1 and 3 have not come forward to establish their own individual rights, I instead of taking criminal action order all the three plaintiffs (respondents no. 1 to 3 in the present appeal) to pay jointly and severally heavy compensatory costs of Rs. 1,00,000/- (Rs. one lakh) to the defendants no. 1 and 2 (Appellants no. 1 and 2 in the present appeal). Trial Court record with copy of this judgment be sent for information. Decree sheet be prepared and appeal file be consigned to record room.
(Ashwani Sarpal)
Dt. 12-4-2010 Additional District Judge