Delhi District Court
Horam (Deceased) Through Lrs vs Smt. Geeta Dhillon on 4 May, 2022
IN THE COURT OF SHRI PRITAM SINGH : ADDITIONAL
DISTRICT JUDGE: WEST THC DELHI
CNR no. DLWT01-002049-2015
Civ DJ No. 610628/16
1. Horam (deceased) through LRs:
a) Smt. Kusum Lata
W/o Late Horam
b) Purvanshi Gautam (aged 16 yrs)
D/o Late Horam Singh
Through her mother and natural guardian
Smt. Kusum Lata
c) Master Chetanya Gauta (aged 14 yrs)
S/o Late Horam Singh
Through her mother and natural guardian
Smt. Kusum Lata
d) Master Saumya Priya Gauta (aged 11yrs)
S/o Late Horam Singh
Through her mother and natural guardian
Smt. Kusum Lata
All R/o 7/53, Old Rajinder Nagar,
New Delhi-110060.
2. Smt. Kusum Lata
W/o Sh. Horam
R/o 7/53, Old Rajinder Nagar,
New Delhi-110060.
...........Counter claimants
VERSUS
1. Smt. Geeta Dhillon
Digitally signed
Suit No. 610628/16 by PRITAM Page No. 1/27
PRITAM SINGH
SINGH Date:
2022.05.09
15:35:06 +0530
W/o Late Sh. Muninder Singh Dhillon
2. Sh. Parmeet Singh
S/o Late Sh. Muninder Singh Dhillon
3. Sh. Sukhmeet Singh
S/o Late Sh. Muninder Singh Dhillon
All R/o WZ-27A, First Floor,
Ramgarh Colony, Najafgarh Road,
New Delhi-110015
4. Sh. Sukhvinder Singh
S/o Late Sh. Mohinder Singh
R/o A-3/30, Manav Apartment,
Paschim Vihar,
New Delhi-110063
5. South Delhi Municipal Corporation
Through Its commissioner,
Civic Centre, Minto Road,
New Delhi. .......Defendants
Date of institution of the suit : 14.01.2015
Date on which order was reserved : 27.04.2022
Date of decision : 04.05.2022
COUNTER CLAIM FOR RECOVERY FOR A SUM OF
RS.13,00,000/- FORM THE DEFENDANT NO. 1 TO 4,
PERMANENT AND MANDATORY INJUCTION AGAINST
DEFENDANT NO. 1 TO 5.
JUDGMENT
1. Before discussing the facts of this case it is important to mention here that a suit was filed by the defendant no. 1 to 4 herein and to counter that suit this counter claim has been filed by the counter claimant against the defendant no. 1 to 4. However, separate issues were Suit No. 610628/16 Page No. 2/27 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:35:21 +0530 framed in the said suit and the present counter claim and the evidence were also recorded separately, therefore the present counter claim is being disposed of separately.
2. The facts in brief, necessary for the disposal of the present counter claim are that defendant no. 1 to 4 entered into an agreement with counter claimant no. 1 for raising construction in property having municipal no. WZ-27A, also known as WZ-27-D, Ramgarh colony, village Basai Darapur, Najafgarh Road, New Delhi-110015 vide collaboration agreement dated 05.10.2005. The counter claimant no. 1 had to raise construction in the said property as per the terms of Collaboration Agreement dated 05.10.2005. The defendant no. 1 to 4 are owner of the said property.
3. It is further stated that counter claimant got sanctioned the site plan from MCD and in case the defendant would have been permitted the counter claimant to raise construction in accordance of sanctioned site plan then the counter claimant would have got the agreed area in his share as per the Collaboration Agreement dated 05.10.2005. But the defendant no. 1 to 4 not permitted the counter claimant to raise construction in accordance with sanctioned site plan resultantly the defendant no. 1 to 4 forced the counter claimant to raise construction as per their whims and fancies and same was declared unauthorized by MCD consequently coercive actions were initiated by the department of Municipal Corporation of Delhi vide file no. 3/UC/WZ/350 dated 19.07.2006 and the defendant no. 1 to 4 in an illegal move hatched a conspiracy with the officials of the defendant no. 5 and got regularized Suit No. 610628/16 Page No. 3/27 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:35:31 +0530 two floors by making the fee of Rs.31,500/- which was otherwise illegal and not permissible.
4. It is further submitted that thereafter to the hide and cover the illegal acts done with the officials of the defendant no. 5 MCD mounted pressure upon the counter claimant to regularize the left over portion of suit property to protect their skin. That to maintain the relations the counter claimant was forced to submit the fees of Rs.30,172/- for left over portion under pressure and compulsion on 29.08.2007. It is further submitted that other reason of submitting the fee for part regularization was that the defendant no. 1 to 4 agreed that they would permit the counter claimant to raise construction as per the Collaboration Agreement and it was agreed that the additional construction can be compounded thereafter for realization of the money so incurred by the counter claimant for raising construction as per the Collaboration Agreement dated 05.10.2005.
5. It is further stated that thereafter the defendant no. 1 to 4 in a ill manner and to grab the property of the Counter Claimant in a concealed manner illegally got cancelled the GPA, Agreement to Sell, Will and other documents so executed in favour of the Counter Claimant in consonance with the Collaboration Agreement dated 05.10.2005 when the defendant no. 1 to 4 preferred the suit bearing no. 405 of 2009 instituted in the then Hon'ble Court of Sh. Vinay Singhal, Civil Judge, Tis Hazari Courts, Delhi and the said documents of cancellation came in light of the Counter Claimant upon receipt of the summons of the said suit where possession of the portion of the counter claimant was sought.
Suit No. 610628/16 Page No. 4/27 Digitally signed PRITAM by PRITAM
SINGH
SINGH Date: 2022.05.09
15:35:39 +0530
The counter claimant instituted a counter claim seeking declaration of the said cancellation to be illegal.
6. It is further submitted that at the time of moving application by the defendants for regularization the excess construction so raised by them was demolished and all chajjas of the suit property were also demolished. The said facts can be verified by calling records from MCD and also to the fact that the Counter Claimant availed the loan from Indian Overseas Bank and survey was conducted by the surveyor of the bank after regularization and photograph of the property was taken by the Surveyor of the bank and as per the photographs so taken by the Surveyor in 2010 it is clearly reflected that no Chajjas were in existence in the suit property in possession of the defendants.
7. It is further submitted that after withdrawal of the suit of the defendant no. 1 to 4, they mounted pressure upon the counter claimant for entering into compromise and compromise was arrived in March 2013 that the counter claimant would raise additional construction in the floors of the defendants and further make payment of Rs. 5,00,000/- (Rupees Five Lacs only) to defendant no. 1 to 3 and Rs. 5,00,000/- (Rupees Five Lacs only) to defendant no. 4. It is further submitted that during the said tenure a compromise was arrived between the defendant no. 1 to 4 and counter claimant and as per compromise it was agreed that Counter Claimant should raise construction in two floors of the defendant no. 1 to 4 and the defendant no. 1 to 4 handed over the following work to be constructed in their floors i.e. Chajjas on all the Suit No. 610628/16 Page No. 5/27 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:35:49 +0530 floors by projecting on the public land related to proposed Defendant no. 1 to 4, demolition of front walls and front rooms for insertion of gatters for creation of chajjas, flooring and beautification of stairs were done apart from the other works and excess coverage of rear portion.
8. It is further submitted that the said construction work including construction of Chajjas by demolition, if the existing front structure of the suit property in 2013 and all the expenses of additional construction were to be borne by Counter Claimant. That in addition to the same the defendant no. 1 to 3 collectively and Defendant No. 4 demanded a sum of Rs. 5,00,000/- each and in turn it was agreed that the Counter Claimant can raise the construction on the terrace floor so that Counter Claimant can get space in suit property as per the mandate of collaboration agreement dated 05.10.2005.
9. It is further submitted that in raising construction as per wishes of the defendant the counter claimant incurred following expenses as under:-
Work which has been done by the Expense so incurred counter claimant For renovating the chajjas the Rs. 50,000/-
counter claimant has demolished the wall and floor.
For removing the malwa from suit Rs.30,000/-
property.
RCC slab madely help of Rs.5,50,000/-
shuttering, steel bars, cement, rord
badarpur, labour approximately 500
Suit No. 610628/16 Digitally signed
Page No. 6/27
PRITAM by PRITAM
SINGH
SINGH Date: 2022.05.09
15:36:00 +0530
sq. ft area @ Rs.1100/- per Sq. ft.
Marble flooring-marble, cement, Rs.75,000/-
bardarpur, labour on 500 sq ft. area.
Cement Plaster, on the fresh labour. Rs.22,500/-
Four doors (each Rs.15,000/-) Rs.60,000/-
Four railings on the floors & Grill Rs.16,000/- &Rs32,000/-
staircase.
Paint/ Repair/ Renovation. Rs.1,00,000/-
Misc. expenses incurred by the Rs.70,000/-
Counter Claimant.
10. It is further submitted that in meanwhile the defendants no. 1 to 4 have also taken a sum of Rs. 3,00,000/- in total from the Counter Claimant. Hence upon carrying the construction the entire suit property even otherwise violation the regularization mandate given to Defendant no. 5/MCD. It is further submitted that when the Defendants approached the counter claimant for compromising the issues and taken a sum of Rs.
3,00,000/- and renovation of chajjas and all other works in property in question has been getting done by the counter claimant as per the compromise so entered between the parties and the counter claimant has incurred expenses of Rs. 10,00,000/- in construction.
11. It has been prayed that a decree be passed against the defendant no. 1 to 4 for a sum of Rs.13,00,000/- along with interest @ 15.75% from the date of institution of present counterclaim till its actual realization. It is further prayed that a decree of permanent and mandatory injunction thereby restraining the defendants, their agent, servants, asignees and their legal heirs from causing hindrance in the peaceful Suit No. 610628/16 Page No. Digitally signed 7/27 by PRITAM PRITAM SINGH SINGH Date:
2022.05.09 15:36:08 +0530 possession of the counter claimants in the suit property bearing municipal no. WZ-27A, also known as WZ-27-D, Ramgarh Colony, Village Basai Darapur, Najafgarh Road, New Delhi.110015. It is further is prayed that a decree of mandatory injunction thereby directing defendant no. 5 to conduct inquiry as to how order dated 07.06.2006 and 29.08.2007 has been passed in violation of the mandate of the act whereby regularization has been done in part. It is further prayed that a decree of mandatory injunction directing the defendant no.5 to entertain the regularization application of the counter claimant and defendants only in accordance with the mandate of the act and not otherwise. It is further prayed that a decree of mandatory injunction there by directing the defendant no. 5 to demolish the unauthorized construction raised by the defendant no. 1 to 4 in violation of their affidavit so submitted at the time of regularization vide order dated 29.08.2007.
12. A joint written statement was filed on behalf of defendant no. 1 to 4. It is admitted in the written statement that the counter claimants and defendant no. 1 to 4 entered into an agreement dated 05.10.2005. It is denied that the counter claimant were not permitted to raise the construction in accordance with the sanctioned plan. It is stated that the counter claimant raised unauthorized construction by not stricting to the sanctioned plan by the MCD in order to grab the more portion of the property in question. It is further stated that due to the unauthorized construction raised by the counter claimant MCD sealed the property vide order dated 09.07.2006.Suit No. 610628/16 Digitally signed Page No. 8/27
by PRITAM PRITAM SINGH SINGH Date:
2022.05.09 15:36:18 +0530
13. It is further stated that the sanctioned plan was for the basement, ground floor and first floor and as per provisions of builiding by-laws at the relevant time the FAR (floor area ratio) was 300 and the maximum height of the building could be raised upto 15 mtrs. The counter claimant instead of raising the construction as per the sanctioned plan covered 100 per cent area instead of 75 per cent and raised the ground floor, first floor and second floor and then tried to raise the third floor for which the defendant no. 1 to 4 complained to the concerned authorities for the unauthorized construction. It is further stated that the application for the sanctioned plan and other relevant applications were not signed by the defendant no. 1 to 4, who were owner of the property in question rather their signatures were forged by the counter claimant in collusion with the architect/ the person who prepared the proposed sanctioned plan.
14. It is further stated that that counter claimants have filed a counter claim in the previous suit filed by the defendant no. 1 to 4 but they have not disclosed this fact in order to suppress the facts from the Court. It is admitted that the previous suit filed by the defendant no. 1 to 4 against the counter claimant was returned by the Court of Sh. Lokesh Kumar Sharma the then Ld. Civil Judge vide order dated 18.04.2012. It is admitted that all the chajjas were removed by the MCD. It is denied that a compromise was effected between the parties allowing the counter claimant to raise additional construction in the floors of the defendant no. 1 to 4 and would make further payment of Rs. 5 lakhs to the defendant no. 1 to 3 and Rs. 5 lakhs to the defendant no. 4. In fact, the claimant Suit No. 610628/16 Digitally signed Page No. 9/27 by PRITAM PRITAM SINGH Date:
SINGH 2022.05.09
15:36:39
+0530
paid only Rs. 1 lakh to the defendant no. 1 to 3 and Rs. 1 lakh to defendant no. 4 due to the reason that the chajjas of the defendant no. 1 to 3 were pulled down by the MCD and the damage was caused to the roof of the ground floor and walls and also to the roof of the first floor as well as to the walls of the portion in possession of the defendant no. 1 to 3 i.e first floor.
15. It is further stated that the chajjas were required in the portion of the second floor but the same cannot be done by raising the chajja at the first floor due to that reason the expenses have to be borne by the counter claimant as it was the need of the counter claimant to raise the chajja at the second floor. It is further denied that the defendant no. 1 to 4 have taken a sum of Rs. 3 lakhs form the counter claimant. It is further stated that the counter claimant wanted to raise illegal construction on the third floor to which the defendant no. 1 to 4 were not agreed and it was against the sanctioned plan. It is further stated that as per the new building by-laws the FAR cannot be more than 350 and in that case there can be fourth floor in addition to the ground floor and basement with the proviso that ground floor will be used for parking purpose and the height of the building should not increase 15 mtrs. It is further denied that the defendant no. 1 to 4 are liable to pay Rs.13 lakhs along with interest @ 15.75 per cent to the counter claimant. All other averments made in the counter claimant are denied.
16. Defendant no. 5 failed to file written statement within time, therefore, the defence of the defendant no. 5 was struck off vide order Suit No. 610628/16 Digitally signed Page No. 10/27 by PRITAM PRITAM SINGH Date:
SINGH 2022.05.09
15:36:55
+0530
dated 03.08.2016 by the Ld. Predecessor of this Court. An application under Section 151 CPC for recalling of order dated 03.08.2016 was filed on behalf of defendant no. 5 but the said application was dismissed on 29.03.2017 by the Ld. Predecessor of this Court.
17. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor of this court:-
1 Whether plaintiff/counter claimant is entitled for recovery for a sum of Rs.13,00,000/- (Rupees Thirteen Lacs) from the defendant no. 1 to 4? OPP 2 Whether plaintiff/ counter claimant is entitled for permanent injunction as claimed for? OPP 3 Whether plaintiff/ counter claimant is entitled for mandatory injunction as claimed for? OPP
4. Whether the claim of the plaintiff/ counter claimant is barred by Section 2 Rule 2 CPC? OPD no. 1 to 4.
5. Whether suit of the plaintiff/ counter claimant is barred by limitation?OPD no. 1 to 4.
6 Whether the contract relied upon the plaintiff/ counter claimant dated 05.10.2005 is not enforceable? OPD no. 1 to 4.
7 Whether this Court is not having jurisdiction to declare the regularization of the building bearing no. WZ-27A, Ramgarh Colony, Village Basai Darapur, Najafgarh, New Delhi-110015 being barred by MCD laws? OPD no. 5
8. Relief.Digitally signed
Suit No. 610628/16 PRITAM by PRITAM SINGH Page No. 11/27 SINGH Date: 2022.05.09 15:37:06 +0530
18. It is important to mention here that during the pendency of the suit/ counter claim the counter claimant no. 1 Sh. Ho Ram expired on 21.08.2019 and his LRs were brought on record vide order dated 30.01.2020.
19. In order to prove their case, the counter claimant no. 1 has examined himself as PW1 and his evidence by way of affidavit Ex.P1/A, PW1 has reiterated and reaffirmed the stand taken by the counter claimant in the counter claim. The counter claimant have relied upon the following documents:-
(i) Copy of Collaboration Agreement dated 05.10.2005. Ex. P1(OSR)
(ii) Regularization order dated 07.06.2006. Ex.P2(OSR)
(iii) Letter dated 27.07.2007 for part regularization along with payment receipt dated 29.08.2007. Ex.P3(OSR)
(iv) Site plan showing the access coverage. Ex.P4
(v) Original Bills pertaining to Chajjas of the said premises. Ex.P5
(vi) Payment receipts of Rs.3 lacs given to the defendant. Ex.P6(OSR)
(vii) Payment of Rs.1 lac received by one of the defendant Geeta Dhilon, Sukhmeet and Parmeet, which is shown in Ex.PW1/X2 dated 20.12.2017 in another file titled as Suit No. 610628/16 Digitally signed by PRITAM Page No. 12/27 PRITAM SINGH Date:
SINGH 2022.05.09
15:37:26
+0530
Geeta Dhillon vs. Horam. Ex.P7
(viii) Complaint dated 23.05.2013. 02.06.2013 02.06.2013. Ex.P8(Colly)
(ix) Copy of regularized plan fee receipt dated 02.02.2007. Mark A
(x) Copy of counter claim filed by the counter claimant in the first suit of the defendant. Mark B
(xi) Copy of order dated 18.04.2012.
Mark C
(xii) Copy of photographs showing the property in dispute. Mark D
(xiii) Copies of photographs showing the excess coverage done in the suit property. Mark E
20. In the cross examination, PW1 deposed that the building in dispute is 133 Sq. yards and in the papers, it has been shows as 40x30 feet. He had not calculated the expenditure done on the property in dispute, however, it will be Rs.1500 per sq. feet. He had subjected this contract to another contractor with material. PW1 has denied the suggestion that in his counterclaim he had not mentioned that the contract was handed over by him to another sub-contractor. By way of volunteer he stated that he had not mentioned in his counter-claim that the bills are the bills of the sub-contractor. PW-1 admitted the suggestion that in the written statement (filed in main suit) filed on record by him, it has not been mentioned that the Collaboration agreement dated 05.10.2005 was contained an arbitration clause. PW1 admitted the suggestion that he had to get sanctioned the site plan form the MCD. By Suit No. 610628/16 Page No. 13/27 Digitally signed by PRITAM PRITAM SINGH SINGH Date:
2022.05.09 15:37:55 +0530 way of volunteer he stated that he had got sanctioned the site plan form the MCD. PW 1 admitted that fact that the alleged sanctioned site plan which was allegedly got sanctioned by him has not been placed on record. He further admitted that the application for getting sanctioned the site plan has to be signed by the owner of the property. He further stated that he did not lodge any complaint with MCD when the defendants did not permit him to raise the construction in accordance with the sanctioned site plan. No notice was served upon the owner of the property that the owner was not allowing the construction as per the site plan.
21. PW1 admitted the suggestion that he had deposited that compounding fee with the MCD for regularization of left over portion of the suit property. He further admitted the suggestion that no subsequent agreement ever took place in between him and the owner of the property with regard to the portion from point A to A1 in para no. 3 of his affidavit.
22. PW-1 was further cross-examined by Ld. Counsel for the defendants on 04.10.2018. PW1 had pointed out Ex.P3 is the letter in protest which was submitted by him with MCD. PW1 answered the question that the said building was constructed in two parts in the year 2005 and in the year 2013. The site plan was got sanctioned in the year 2006. PW1 answered the question that he had already placed on record the photocopies of the sanctioned site plan and the regularization plan.
The site plan for the construction of the building which was got done in the year 2013 was not sanctioned from the MCD. By way of volunteer Suit No. 610628/16 Page No. 14/27 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:38:03 +0530 the construction in the year 2013 was done with the consent and approval of the defendants. He had not placed on record any such document in writing to show the consent and approval of the defendants for the additional construction raised by him in the year 2013.
23. PW1 further deposed that the chajjas were completely demolished. The iron rods which were used for construction of the chajjas were also broken. For construction of the chajjas again, beams were laid again on the roof of the building. The beam of the chajja which was intruding was almost 6 feet. When the chajjas were broken, the roof was already laid. The beams were laid on the roof and the roof was not broken. The thickness of the roof did not increase even after the laying down of the beams as there was already a margin in the beams. PW1 denied the suggestion that after the laying down of the roof with the help of a beam, no scope was left out for laying down another beam.
24. PW1 answered the question that the roof was not broken and only the margin level was clear. The chajjas were constructed on the roofs of the ground floor, first floor and second floor. The above said floors are there in Ex.P4 are not therein in the sanctioned site plan of the MCD. PW1 admitted the fact that the chajjas wer constructed not only in the front but in the back portions also. PW1 further admitted the fact that the rates of the construction which are being provided includes the costs of the flooring, doors, bath fittings, electricity fittings, windows etc. PW1 answered the question that the defendants had assured him not to raise any objection but the defendatns loged the complaint with MCD and his construction was got demolished and that is why he filed the counter Suit No. 610628/16 Page No. 15/27 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:38:09 +0530 claim. He did not issue any notice to the defendants terminating the contract. No document in writing was given by the defendatns to him asking him to raise the additional construction. PW1 admitted the suggestion that he used to make the payment to the sub contractor. He did not maintain any record of the payment done by him to the sub- contractor. The total area of the chajjas of the floors of the defendants constructed by him must be around 400-500 sq, feet. The rates of the cement per bag as on date are Rs.300 to Rs.350 varying as per the different brands. PW-1 admitted the fact that in the bill dated 10.04.2012, the rates of cement of Rs.300/- per bag in the year 2012 have been mentioned. PW1 admitted the suggestion that the building was constructed by one and the plasting of the building and marvel fixing and other fittings were done by different sub-contractors. PW1 further admitted the fact that the record of the expenditure of the chhajas is in the file of the court. PW1 further admitted the fact that other bills pertaining to the rest of the building have not been placed on record.
25. PW1 denied the suggestion that only the roof of the second floor was punctured by the MCD. By way of volunteer he stated that the roof of the third floor of the building was punctured by the MCD. PW1 answered the question that the defendants had raised the constructions upto 100% whereas the site plan was sanctioned only for 66%. The defendants saved their unauthorized constructions in collusion with MCD official namely Naveen Verma but his unauthorized construction was demolished.
26. The defendant no. 1 to 4 in their evidence examined Smt. Suit No. 610628/16 Page No. 16/27 Digitally signed by PRITAM PRITAM SINGH SINGH Date: 2022.05.09 15:38:16 +0530 Geeta Dhillon W/o Late Sh. Muninde Singh (defendant no. 1) as DW1 and his evidence by way of affidavit Ex.DW-1/A. The defendants relied upon the following documents:-
(i) Applicaiton of Horam under Order IX Rule 9 moved in suit no. 406/2009. Ex.DW1/3
(ii) Certified copy of the ordersheet of the Court of Pooja Talwar, Civil Judge, Delhi. Ex.DW1/2
(iii) Certified copy of written statement of defendant no. 1 & 2. Ex.DW1/1
27. The counter claimants failed to cross-examine the DW1 despite opportunity was granted.
28. Arguments heard. Entire record perused and considered.
29. The findings on the above said issues are as under:
I am of the view that the issue no. 4 to 7 should be considered prior to issue no. 1 to 3 as the issue no. 4 to 7 are legal issues to be determined on the basis of concerned law.
Issue no. 4
4. Whether the claim of the plaintiff/ counter claimant is barred by Section 2 Rule 2 CPC? OPD no. 1 to 4.
30. Order II Rule 2 reads as under:-
Suit No. 610628/16 Page No. 17/27 Digitally signed PRITAM by PRITAM
SINGH
SINGH Date: 2022.05.09
15:38:24 +0530
1. Suit to include the whole claim:- Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
2. Relinquishment of part of claim:- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
3.xxxxxxxxxxxxxxxxx
31. A bare reading of Order II Rule 2 makes it clear that this Rule bars the plaintiff to file a suit in respect of any portion of his claim regarding which he has earlier filed a suit or which he intentionally relinquishes by not claiming the same in his earlier suit. The burden to prove this issue was on the defendant no. 1 to 4 and they have to establish that the counter claimant earlier filed a suit in which he could have sought the claim that he is seeking in the present suit. However, the defendant no. 1 to 4 have not brought anything on record to show that in the suit filed earlier by the counter claimant against them, the counter claimant omitted to sue in respect of the claim he is seeking in the present suit or he intentionally relinquishes the said claim in the earlier suit. It is also important to mention here that during the course of argument Ld. Counsel for defendant no. 1 to 4 have conceded that the counter claim is not hit by the provisions of Order II Rule 2 CPC, therefore, he is not pressing issue no. 4. Accordingly, this issue no. 4 is decided in favour of the counter claimant and against the defendants.
Digitally signedSuit No. 610628/16 by PRITAM
Page No. 18/27
PRITAM SINGH
Date:
SINGH 2022.05.09
15:38:34
+0530
Issue no. 5.
5. Whether suit of the plaintiff/ counter claimant is barred by limitation?OPD no. 1 to 4.
32. Ld. Counsel for the defendant no. 1 to 4 during the course of the arguments submitted that he is conceding that the suit is not hit by the law of limitation, therefore, he is not pressing issue no. 5. Accordingly, issue no. 5 is decided in favour of the counter claimants and against the defendants.
Issue no. 6 6 Whether the contract relied upon the plaintiff/ counter claimant dated 05.10.2005 is not enforceable? OPD no. 1 to 4.
33. The burden to prove this issue was on the defendant no. 1 to
4. Ld. Counsel for the defendant no. 1 to 4 argued during the course of the arguments that the Collaboration Agreement dated 05.10.2005 entered into between the plaintiff and defendant no. 1 to 4 is hit by Section 23 of the Indian Contract Act, 1872. Ld. Counsel for the defendant no. 1 to 4 further argued that as per Collaboration Agreement dated 05.10.2005 Ex.P.1 it was agreed between the parties that the plaintiff Horam would construct the entire Ground floor, entire Upper Ground floor (first unit from the ground level), entire first floor (second unit from the ground floor) and the entire second floor (third unit form the ground floor) two flats on each floor. Ld. counsel for the defendant Suit No. 610628/16 Page No. 19/27 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:38:45 +0530 no. 1 to 4 further argued that as per the MCD laws prevalent at the time of entering into Collaboration Agreement Ex.P.1 the sanctioned building plan could be sanctioned for basement, ground floor, first floor and second floor and the FAR (floor area ratio) was 300 but the counter claimant raised the construction of ground, first, second and third floor and, therefore, it was contrary to the laws of the MCD, and accordingly, the Collaboration Agreement was hit by provisions of the Section 23 of the Contract Act.
34. Section 23 of the Contract Act reads are under:-
What consideration and objects are lawful, and what not.-- The consideration or object of an agreement is lawful, unless--
it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law; or involves or implies injury to the person or property of another; or the Court regards it as immoral or opposed to public policy.
In each of these cases, the consideration or object of an agreement of which the object or consideration is unlawful is void.Digitally signed Suit No. 610628/16 by PRITAM Page No. 20/27
PRITAM SINGH
Date:
SINGH 2022.05.09
15:38:58
+0530
35. From a plain reading of Section 23 of the contract Act it is clear that if an agreement is entered into between the parties but the said agreement is forbidden by law or it would defeat the provisions of any law or is fraudulent or invoking or implies injury to person or property of another or Court regards it immoral or it is oppose to public policy then in each of these cases consideration or object of the agreement/ contract would be unlawful and void.
36. In the case in hand the counter claimant and defendant no. 1 to 4 willfully entered into the Collaboration Agreement dated 05.10.2005 Ex.P.1 and the counter claimant also started the construction in terms of the Collaboration Agreement, however, the counter claimant had not obtained or got approved the sanctioned building plan from the MCD due to which property in question was sealed. The defendant no. 1 to 4 made representations for regularization of the unauthorized construction and got sanction from the authorities by depositing the development charges as demanded by the MCD. The act of the counter claimant raising the construction has agreed between the parties in the Collaboration Agreement dated 05.10.2005. The absence of sanctioned building plan does not make the Collaboration Agreement dated 05.10.2005 unlawful.
When the Collaboration Agreement dated 05.10.2005 was executed, it was neither forbidden by law nor have defeated provisions of any law nor it was fraudulent. It is not fit by any of the grounds mentioned in the Section 23 of the Indian Contract Act, 1872. In simple words, the act of raising construction in the absence of sanctioned building plan by the plaintiff does not make the Collaboration Agreement unenforceable or Suit No. 610628/16 Digitally signed Page by PRITAM No. 21/27 PRITAM SINGH SINGH Date:
2022.05.09 15:39:05 +0530 unlawful. Hence, this issue is decided in favour of the plaintiff and against the defendant no. 1 to 4.
Issue no. 7 7 Whether this Court is not having jurisdiction to declare the regularization of the building bearing no. WZ-27A, Ramgarh Colony, Village Basai Darapur, Najafgarh, New Delhi-110015 being barred by MCD laws? OPD no. 5
37. Ld. Counsel for the defendants argued that the civil Court is not having jurisdiction to declare null and void the regularization of the property in question as the same is barred by the Section 343, sub-
Section 2 and 4 of the Delhi Municipal Corporation Act.
38. Section 343 sub-Section 2 and 4 reads as under:-
(2) Any person aggrieved by an order of the Commissioner made under sub-Section (1) may prefer an appeal against the order to the Appellate Tribunal within the period specified in the order of the demolition of the erection or work to which it relates.
(4) No Court shall entertain any suit, application or order proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.Suit No. 610628/16 Page No. 22/27 Digitally signed
PRITAM by PRITAM
SINGH
SINGH Date: 2022.05.09
15:39:13 +0530
39. From a plain reading of sub-Section 2 of Section 343 of Delhi Municipal Corporation Act it is clear that any person who is aggrieved by order of MCD Commissioner may prefer an appeal against the order to the Appellate Tribunal. Sub-Section 4 of Section 343 of the Delhi Municipal Corporation Act clearly bars the jurisdiction of Civil Court by stating that no Court shall entertain any suit, application or order proceeding for injunction or other relief against the MCD Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of Section 343. If the counter claimants are aggrieved by the order of MCD (defendant no. 5) whereby the ground and first floor of the property were regularized then they have to file appeal before the Appellate Tribunal of MCD but they can not challenge the regularization order before the Civil Court.
Accordingly, this issue is decided in favour of defendants and against the counter claimant.
Issue no. 1 1 Whether plaintiff/counter claimant is entitled for recovery for a sum of Rs.13,00,000/- (Rupees Thirteen Lacs) from the defendant no. 1 to 4? OPP
40. The burden to prove this issue is on the counter claimant. PW1 admitted the suggestion that no subsequent agreement ever took place between him and the owner of the property (defendant no. 1 to 4) with regard to the portion from A to A1 in para no. 3 of his affidavit.
Suit No. 610628/16 Page No. 23/27 Digitally signed by PRITAM PRITAM SINGH
SINGH Date: 2022.05.09
15:39:33 +0530
PW1 further deposed that the site plan for the construction of the building which was got done in the year 2013 was not got sanctioned from the MCD. By way of volunteer PW1 deposed that the construction in the year 2013 was done with the consent and approval of the defendants. PW1 further deposed he had not placed any such document in writing to show the consent and approval of the defendants for the additional construction raised by him in the year 2013. PW1 further deposed that the defendants had assured him that they would not to raise any objections but they lodged the complaint with the MCD and his construction was got demolished and due to that he filed the counter claim. PW1 further deposed that no document in writing was given by the defendants to him asking him to raise the additional construction. PW1 further deposed that the construction included flooring, door, bath fittings, electricity fittings, window etc. PW1 admitted the suggestion that he had stated in para 9 of his affidavit that he had to bear the expenses for the construction but he filed counter claim due to the complaint by the owner (defendant no. 1 to 4) to the MCD.
41. The testimony of PW1 is full of contradictions, therefore, it does not inspire the confidence of the Court. PW 1 admitted that he has stated in para 9 of his affidavit that he had to bear the expenses of the construction and he filed the present counter claim as the owner (defendant no. 1 to 4) filed complaint to the MCD. If the expenses of the construction were to be borne by the counter claimant, then how he can claim the same just on the ground that the defendant no. 1 to 4 made a complaint to the MCD. PW1 deposed that he sublet the contract but no Suit No. 610628/16 Digitally signed Page No. 24/27 PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:39:42 +0530 such plea was taken by the counter claimant in the counter claim.
42. The counter claimant raised construction in the year 2013 without getting the sanction from the MCD. The counter claimants have also not filed any thing on record to show that the defendant no. 1 to 4 gave their consent and approval to raise construction. Thus, the counter claimants have failed to prove that they are entitled for recovery of Rs.13,00,000/- from defendant no. 1 to 4. It is also important to mention here that defendant no. 1 to 4 have challenged and rebutted the testimony of PW1, however, the counter claimant failed to cross-examine DW-1, therefore, the testimony of DW-1 goes unchallenged and unrebutted and there is hardly anything on record to doubt the testimony of DW1. DW1 deposed that the defendant no. 1 to 4 are not liable to make any payment to the counter claimant. Hence, this issue is decided in favour of the defendant no. 1 to 4 and against the counter claimant.
Issue no. 2.
2 Whether plaintiff/ counter claimant is entitled for permanent injunction as claimed for? OPP
43. The burden to prove this issue was on the counter claimant. The counter claimants are seeking the decree of permanent injunction against the defendant no. 1 to 4 that they be restrained from causing any hindrance in their peaceful possession in the suit property in question. However, the counter claimant has not established in which portion of the property in question they are in peaceful possession. The ground and first Suit No. 610628/16 Digitally signed Page No. 25/27 by PRITAM PRITAM SINGH SINGH Date:
2022.05.09 15:39:51 +0530 floor of the property in question are in possession of the defendant no. 1 to 4 and they also got regularized the ground and first floor portions from the MCD. Before seeking relief of permanent injunction the counter claimants first need to establish in which portion of the property in question they are in peaceful possession. In the absence of established possession of the counter claimant in the property, the defendant no. 1 to 4 cannot be restrained from causing hindrance in the peaceful possession of counter claimant. Hence, this issue is decided in favour of the defendants and against the counter claimant.
Issue no. 3 3 Whether plaintiff/ counter claimant is entitled for mandatory injunction as claimed for? OPP
44. As discussed above while considering the findings on issue no. 7, it has been found that the Civil Court is not having jurisdiction to declare null and void the regularization of any building done by the MCD. As the civil Courts have no jurisdiction to declare null and void the regularization of any building done by the MCD, therefore, this issue is decided in favour of the defendants and against the counter claimant.
RELIEF:
45. As per the findings on issues no. 1, 2 & 3, the counter claimants have failed to established that they are entitled to recover Suit No. 610628/16 Page No. 26/27 Digitally signed by PRITAM PRITAM SINGH SINGH Date:
2022.05.09 15:40:10 +0530 Rs.13 lakhs from the defendant no. 1 to 4. They further failed to establish that they are entitled for permanent injunctions and mandatory injunctions as claimed by them in the counter claim. Accordingly, the counter claim is dismissed. No orders as to costs.
File be consigned to record room.Digitally signed
PRITAM by PRITAM SINGH SINGH Date: 2022.05.09 15:40:17 +0530 Announced in the open court (PRITAM SINGH) on this 4th day of May, 2022 ADJ (WEST) Tis Hazari Courts, Delhi. Suit No. 610628/16 Page No. 27/27