Delhi District Court
Jai Prakash Aggarwal vs Sumitra Devi on 29 November, 2023
IN THE COURT OF MS. UPASANA SATIJA
JSCC/ASCJ/GJ (CENTRAL)
TIS HAZARI COURTS, DELHI
_______________________________________________________
CS SCJ 99558/16
CNR No.DLCT03-000510-2008
1. Jai Prakash Agarwal
S/o Late Shri M.P. Aggarwal
2. Shri Rajesh Aggarwal
S/o Late Shri M.P. Aggarwal
Both at Shop bearing No. 27,
in the property No. 5863, Swadeshi Market,
Sadar Bazar, Delhi. .....Plaintiffs
Versus
1. Smt. Sumitra Devi (now deceased)
2. Smt. Kiran Chawla
3. Sh. Sanjay Kalra
S/o Late Smt. Sumitra Devi
All of Shop No. 5863, Swadeshi Market,
Sadar Bazar, Delhi.
4. Sh. Ashok Kumar Vij
5. Shri Ramesh Kumar Vij
Both of Shop bearing No. 27,
In property No. 5863,
Swadeshi Market,
Sadar Bazar, Delhi.
6. Mr. Gaffar,
S/o Sh. Babu Khan
7151, Beriwala Bagh, Delhi
_____________________________________________________________________________
CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 1 of 29
7. Municipal Corporation of Delhi
Town Hall, Chandni Chowk, Delhi,
8. The Zonal Engineer (Building)
S.P. Zone, MCD Delhi.
9. S.H.O. Police Station
Sadar Bazar, Delhi
10. Sh. Ajay Kalra
S/o Sh. Raj Narain Kalra,
Shop bearing no. 25-26,
In property bearing no. 5863,
Swadeshi Market,
Sadar Bazar, Delhi. .......Defendants
Date of Institution : 20.07.2016
Date of Reserving the Judgment : 29.11.2023
Date of Decision : 29.11.2023
Decision : Suit Dismissed
Suit for Mandatory and Permanent Injunction
JUDGMENT
1. Present suit for permanent injunction is filed by Jai Prakash Agarwal and Rajesh Aggarwal (hereinafter referred to as 'plaintiff no. 1' and 'plaintiff no. 2' respectively and collectively as 'plaintiffs') against Shrimati Sumitra Devi (hereinafter referred to as 'defendant no. 1'), Shrimati Kiran Chawla (hereinafter referred to as 'defendant no. 2'), Shri Sanjay Kalra (hereinafter referred to as 'defendant no. 3'), Shri Ashok Kumar Vij (hereinafter referred to as 'defendant no. 4'), Shri Ramesh Kumar Vij (hereinafter referred to as 'defendant no. 5'), Mr. Gaffar (hereinafter referred to as 'defendant no. 6'), Municipal Corporation of Delhi (hereinafter referred to as 'defendant no. 7'), The Zonal Engineer (Building) (hereinafter referred to as 'defendant no. 8'), S.H.O. PS Sadar _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 2 of 29 Bazar, (hereinafter referred to as 'defendant no. 9') and Sh. Ajay Kalra (hereinafter referred to as 'defendant no. 10').
PLEADINGS Brief Facts pleaded in the plaint 2.1. The Plaintiffs are the tenants in respect of shop bearing private no. 27, in property No. 5863, Swadeshi Market, Sadar Bazar, Delhi, under the Defendants 1 & 2 since very long, at Rs. 93/- per month. A fire broke in the Swadeshi Market, Sadar Bazar, Delhi on 31-12-2001, in which the shop of the Plaintiff alongwith number of other shops was burnt and gutted in fire. A complaint regarding the same was made with the Police Station concerned i.e. Defendant No. 9. The matter for reconstruction of the shops which had gutted in fire was taken up; and discussed with M.C.D., Delhi Fire Services, DVB and Delhi Police and representatives of the Trader's Association, and in the said meeting MCD has opined that according to the section 6(4)(1) of the D.M.C. Act "Reconstruction of portions of buildings damaged by storms, rains, earthquake or any other natural calamity to the same extent and specification as existed prior to the damage, provided the use conform to the provisions of the Master Plan" and keeping in mind the public safety, the following conditions were imposed for reconstruction of the buildings gutted in fire at Swadeshi Market by order of Deputy Commissioner (North):-
1. The site Map of the area has been re-constructed by MCD on the basis of a site inspection, since the records available with the MCD did not have any description of the plinth area.
2. The building owners are directed that the width of the _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 3 of 29 Gali indicated in the site plan be maintained free of encroachment. This will require the existing building line to be pushed back to there-encroachment level. There will be no projections at any floor, with the exceptions of tempering sunshades with a maximum width of 2-1/2 over doors and windows.
3. Following structural standards should be maintained in the re-construction of the building:-
(i) Thickness of walls.....................9" width
(ii) Height of roof...........................9.00 high minimum
(iii) Pillars.......................................9"X9" RCC
(iv) Floors.......................................CC flooring
(v) Roofs.........................................CC roofing
(vi) Stair Case.................................3'-6"
4. The concerned architect engaged by the building owner will verify that said building incorporates the structural requirements for earthquake resistance as per the Indian Standard Code.
5. Each building must maintain fire safety measures as per recommendations of the Fire Department. This should be coordinated with the Fire Department once the building plans are ready.
6. M.C.D. should examine those shops partially damaged and affected by the fire and if they are found structurally unstable, they also be demolished for redevelopment.
7. In all cases, the structures re-constructed will not exceed the dimensions and number of shops gutted in the fire. This will be as per records available with M.CD.
8. M.C.D. will ensure that these directions are followed in the process of re-construction.
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9. Each building owner will furnish an affidavit regarding compliance with these directions in the Court of the SDM (SB).
10. The same conditions will apply to the buildings gutted in the fire at Bari Market on 15-01-2002.
11. The conditions and site plan mentioned will not act as a general precedent in case of Sadar Bazar Area. In all other cases of construction/repair due permission will have to be obtained from the concerned civic agencies.
2.2. Defendants 1 to 3 and 10 deputed the Defendant No.6, who is a well known builder of unauthorized buildings in the area, with the work of re-construction of the building/property bearing no. 5863, Swadeshi Market, Sadar Bazar, Delhi. The Defendants 4 and 5 are the tenants in the adjoining shop bearing Pvt. No 26, in the said property, whereas the shop bearing Pvt. No. 27 in the same property is under the tenancy of the Plaintiff. When the reconstruction were to commence, all the tenants and the Defendants 1 to 6 and 10, mutually settled that the Pillars shall be raised as per specifications and conditions laid in this regard; and a common Lintel will be laid on the said pillars, and all the shops will be re-constructed with the same length and width, as they were existing earlier to Fire. The tenanted shop of the Plaintiff is shown in yellow color and it has its entrance/door straight from the street facing the street. The Defendants 1 to 6 and 10 raised the pillars at point Q, Q-1, Q-2 of 9" X 9" i.e. half of the said pillars are in the area of the shop of the Plaintiff. The Defendants 1 to 3, 6 and 10 encroached upon the part of the street shown in red colour in the plan and also pillars at point Q-4, made a very thick pillar which blocks the Gate-view of the shop of the Plaintiff.
_____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 5 of 29 2.3. Defendants 1 to 6 and 10 with malafide intentions after raising the said pillars at point Q to Q-2 and by encroaching upon the part of the street and by making the pillar at point Q-4, laid the Lintel leaving the shop of the Plaintiff and left no space on the said pillars for laying the lintel of the shop of the Plaintiff. Now if the Plaintiff lays his own lintel, he will have to make other pillars and wall within his shop area to lay roof/lintel thereby decreasing the considerable space of the shop of the Plaintiff. The shop of the Plaintiff is to be rebuilt of the same size and specifications as it was earlier to fire, but the Defendants 1 to 6 and 10 have illegally made pillars in the space of the Plaintiff's shop and laid the roof thereupon leaving no space on the pillars to lay the roof of the shop of the Plaintiff.
2.4. Defendants 1 to 3, 6 and 10 in collusion with other Defendants are intending to raise a 5 storey building, and they have and are continuously violating the conditions laid by the authorities, as detailed above. The said defendants have decreased the width of the Gali and have extended their building into the street and have encroached the said street. Further they have a pillar at point Q-4 of 1 feet diameter, which is directly in front of the door of the Plaintiff's shop and the door of the shop of the Plaintiff is hidden due to the said pillar. Earlier it was a building consisting of ground and first and second floor and now the said Defendants are intending to make a five storey building.
2.5. Plaintiff approached the said Defendants to remove the encroachment and provide the space on the pillars marked Q, Q-1 and Q-2 to lay RCC roof on the shop of the Plaintiff and further to remove the pillar at point Q-4, but they did not care. Plaintiff on 16- _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 6 of 29 03-2002, lodged a complaint with the SHO PS Sadar Bazar, that the builders of shop no. 21 to 26 in the aforesaid property are violating the directions given for reconstruction. It was complaint that the projection upto 8 feet have been extended in the street and have encroached upon the street. The Plaintiff again on 20-03-2002 made complaint to the Police that Defendant No.6/builder have made pillars in the shop of the plaintiff and has laid the lintel thereupon for the shops upto Pvt. No. 26, and left out the shop of the Plaintiff without leaving space on the said pillars for laying roof of the Plaintiff's shop.
2.6. Defendants/owners demolished the entire old structure, which was consisting of ground floor and first floor and second floor and are now commenced and are intending to raise five storey building, in violation of the law and commenced raising construction of illegal and unauthorized building thereupon, without first getting the building plan sanctioned and without following the aforesaid directives and without caring for the law. The Defendants have no legal right or authority to make or permitted to be made any kind of illegal and unauthorized constructions, even then they forcibly, illegally and in connivance with the staff of the Defendants 7-9 authorities have encroached upon the street/ Gali and have raised pillars in violation of the Directives and by infringing the rights of the Plaintiff and they are continuing with illegal and Unauthorized constructions thereupon and when the Plaintiff requested them to desist, they flouted at the Plaintiff and threatened to make illegal and unauthorized constructions. They threatened to make illegal and unauthorized constructions of ground floor, first floor, second floor, third floor and fourth floor. When the complaints made in this regard by the Plaintiff to the Defendant No.7 to 9 they _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 7 of 29 failed to take action, and from their conduct it came to light that the said Defendants are in league with the other Defendants and the Defendant No. 1 to 3. 6 and 10 being encouraged from such attitude of the Defendant No.7 to 9 have further brought the building material in huge quantity and are adamant to make the threatened constructions in the property and that too in violation of the directives issued in this regard by the authorities.
2.7. Defendants No. 1 to 3 and 10 while commencing and making the illegal and unauthorized constructions colluded with the Defendants 4 to 5 (the tenants of shop bearing Pvt. No. 26 in said property) raised illegal and unauthorized pillars within the space the shop of the Plaintiff with the assurance that the RCC roof will be laid on the said pillars including the roof of the shop No. 27, but they illegally and unauthorized did not lay the roof on the shop of the Plaintiff and in his way they have encroached upon the space of the shop of the Plaintiff, 2.8. Plaintiff again approached and requested the Defendants to stay their hands from raising or permitting to be raised any further constructions in the suit property, but the Defendants have paid no heed, and are adamant in their design. Hence, the plaintiff has filed the present suit against the defendants praying for following reliefs:
(i) Decree of Mandatory Injunction thereby directing the defendants to remove and demolish the entire illegal and unauthorized constructions including the pillars made on the area of the shop of the marked plaintiff Q to Q-2 and also to remove and demolish the encroachment shown in the red colour from the Gali/Street: and also to remove the Pillar made at point Q-4, as _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 8 of 29 shown in the site plan attached
(ii) Decree of Permanent Injunction, with cost, in the favour of the Plaintiff and against the Defendants from making or permitting to be made any construction in the suit property bearing no. 5863, Swadeshi Market, Sadar Bazar, Delhi.
Brief Facts pleaded in the Written Statement filed by Defendant no. 1 and 3 3.1. The plaintiff has not come to the court with clean hands and has suppressed the material facts which will disentitle them from claiming discretionary relief from the court. The suit is bad for non joinder and mis joinder of parties. The defendants no. 1 and 3 are not the owners of property No. 5861, Pvt. shop no 26 in which the defendants no 4 and 5 are the tenants under Mr. Ajay Kalra who is the sole and absolute owner /landlord of property No 5861, Pvt. shop no 26. Defendant no 1 and 2 are the owners of property No. 5863, in a portion of which 1.0 Pvt. shop no 27 plaintiffs are the tenant, however, the plaintiffs without any lawful Justification have impleaded them as a parties in the suit. It is further stated that the plaintiffs themselves are indulging in unauthorized construction of the shop and they are liable to be restrained from carrying out any construction except with the written consent of the landlord / owners.
3.2. The plaintiffs have not given the size of the shop in the site plan or in the plaint with malafide intention to grab other portions of the property.
3.3. They denied any mutual settlement between defendant no. 1 to 6 and their tenants that any common lintel will be laid. It _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 9 of 29 was further stated that the properties are owned by different owners and question of laying common pillars or lintel does not arise. Defendant no. 3 and Ajay Kalra intended to raise construction by providing common pillars and common lintel and it has nothing to do with property no. 5863. Pillars Q, Q1 and Q2 exist in property no. 5861 and are not common for property no. 5863 Brief Facts pleaded in the Written Statement filed by Defendant no. 4 and 5
4. The suit filed by the plaintiffs is false and malafide and the same has been filed to harass and blackmail the answering defendants who are poor persons and have already suffered huge losses due to the burning of their shop alongwith other shops and they are facing great hardships and the plaintiff or defendant Nos.1 to 3 may be directed to pay Rs.5,000/- per month to the answering respondent Nos.4 and 5and for their survival and maintenance.
Brief Facts pleaded in the Written Statement filed by Defendant no. 7 and 8 5.1. This Court has no jurisdiction to entertain the present suit, as the Appellate Tribunal MCD is only authority to entertain the suit under section 347 A of DMC Act whereas the demolition order has already been passed vide file No.148/B/UC/SPZ/2002 dated 9/7/2002 and part action has already been taken in the present suit for removal of the unauthorized construction. It is further stated that the suit of the Plaintiff is liable to be dismissed, as he has no locus standi to file the present suit and the suit of the Plaintiff is barred by the provisions of section 477/478 of DMC Act as the requisite notice have not been served up on the answering Defendant before instituting the present suit.
_____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 10 of 29 5.2. The suit of the Plaintiff is liable to be dismissed as there is no cause of action in favour of the Plaintiff and against the answering Defendant to file the present suit. Hence the suit is liable to be dismissed under order 7 rule 11 of CPC.
5.3. The order dated 14.02.2002 issued by Deputy Commissioner North cannot supersede/bypass the provisions of DMC Act and Building Bye-laws and anything which is contrary to Building Bye-Laws is not binding on the answering defendant.
5.4. Action against the unauthorized construction has already been taken by booking the same vide file No.148/B/UC/SPZ/2002 dated 9/7/2002 and after passing demolition order part action has already been taken by removing the pillars on the second floor, roof of the first floor, construction on the ground floor on the disputed four feet portion except the pillars on the front side. Six pillars erected on the disputed portions were also to be removed by the Defendant but the same were not removed because the roof of the building was resting on these six pillars and by removing these pillars without construction of pillars by pushing back by four feet from the existing position the building will collapse. The answering Defendant has not given any permission to erect the pillars by pushing back by four feet from the existing position to the owner/builders as there is a stay was granted by this Court against the raising of construction of any nature vide its order dated 2/4/2002 & 3/5/2002.
5.5. As per clause 6.4.1 of Building Bye-laws no notice and building permission is necessary in case of reconstruction of portion of building damaged by fire to the same extant and specification as _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 11 of 29 existed prior to the damage. The directions issued by the DC North vide order dated 14/2/2002 were only guidelines and any order in violation of Building Bye-laws is not required to be followed by the answering Defendant.
Brief Facts pleaded in the Written Statement filed by Defendant no. 9 6.1. The suit of plaintiff qua the answering defendant is without any cause of action and as such the same is liable to dismissed under order VII Rule 11 of the Code Civil Procedure. The suit of the Plaintiff is bad for mis-joinder of unnecessary parties. Answering defendant/SHO of Police Station Sadar Bazar, Delhi has got nothing to do with any authorised or unauthorised construction activities. As and when any information in the present case was received by the answering defendant from the Municipal Authority, the same was strictly looked into and the answering defendant shall also continue looking after the same strictly in accordance with law.
6.2. The suit against the answering defendant also bad in view of the provisions of section 140 of Delhi Police Act as no notice has been served nor any sanction or permission is taken from the administrator of N.C.T. before filing the suit. As such, the suit qua the answering defendant is bad for non-sanction of the prosecution. The suit of the Plaintiff is also bad impleading the answering defendant without impleading Ministry of Home Affairs to be as of the required party to the present suit and one on this sole ground alone, the suit of the Plaintiff is liable to be dismissed.
6.3. The suit of the Plaintiff is also not maintainable against the answering defendant as no cause of action has been shown in _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 12 of 29 para 22 of the suit filed by the Plaintiffs, the Plaintiff has also not sought any relief against the answering defendant in the prayer clause and the suit of the Plaintiff is liable to be dismissed as qua the answering defendant as no relief has been claimed by the Plaintiff qua answering defendant in the entire suit. The suit of the Plaintiff is mis-use of the legal process of law against the defendant. Defendant is duty bound to obey each and every order passed by this Hon'ble Court or as and when the answering defendant is called upon to maintain law and order problem by the Municipal Authority; however, in case of any violation of Building Bye law under Municipal Corporation Act notification, the answering defendant shall take all necessary legal action.
Brief Facts pleaded in the Written Statement filed by Defendant no. 10 Sh. Shri Ajay Kalra 7.1. Plaintiffs have got no cause of action in filing the present suit against the answering defendant and the suit on this short ground is liable to be dismissed. The defendant no. 10 is the owner of property no 5860 (Part) bearing Pvt Shop No 25 & 26 in Mp1. Ward No. XIII, Measuring 70 sq. yds. having purchased the same from one Mrs. Kiran Chawla in terms of sale deed 30.11.1990 whereas the plaintiffs claim themselves to be tenant in respect of shop bearing Pvt. 27 forming part of Property No. 5663, Swadeshi Market, Sadar Bazar, Delhi-110886. The answering defendant has nothing to do with the said shop and the suit filed by the plaintiff is thus not maintainable.
7.2. The subject matter of the suit as is clear from the plaint is shop no. 27 forming part of property no. 5863 owned by defendants no. 1 & 2. The plaintiffs with ulterior motives have _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 13 of 29 impleaded the answering defendant as party to the suit and have falsely shown shops no. 21 to 26 as part of property no 5863 by alleging an encroachments. The suit is liable to be dismissed.
7.3. He denied that shop no. 26 forms part of property no. 5863 and stated that shop no. 25 and 26 form part of property no. 5860.
7.4. He denied any mutual settlement between defendant no. 1 to 6 and their tenants that any common lintel will be laid. It was further stated that the properties are owned by different owners and question of laying common pillars or lintel does not arise. Defendant no. 3 and Defendant no. 10 intended to raise construction by providing common pillars and common lintel and it has nothing to do with property no. 5863. The plaintiffs have also filed a similar suit against Surinder Pal Jain along with site plan and the site plan so filed is completely different and inconsistent with the site plan filed in the present suit.
8. Replication to WS of defendant no. 4 and defendant no. 5 and to WS of defendant no. 10 was filed by the plaintiff.
9. In replication to WS of Defendant no. 10, it is stated that it is possible that shop no. 25 and 26 fall under property no. 5860.
ISSUES
10. On the basis of pleadings, the following issues were framed:
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1. Whether the suit is bad for non/mis-joinder of necessary parties? OPD
2. Whether the suit is barred
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the plaintiff is entitled for decree of permanent injunction as prayed? OPP.
5. Whether the plaintiff is entitled for decree of mandatory injunction as prayed? OPP.
4. Relief.
EVIDENCE Plaintiffs' Evidence
11. In support of their case, the plaintiffs examined plaintiff no. 2 as PW-1. He tendered his evidence by way of affidavit which was exhibited as Ex. PW-1/A wherein he stated and reiterated on oath the contents of the plaint. He relied upon the documents which were exhibited as Ex.PW-1/2, Ex.PW-1/5, Ex.PW-1/8, Ex.PW-1/9, Ex.PW-1/10, Ex.PW-1/11 (colly) i.e. 15 photographs, Ex.PW-1/12, Ex.PW-1/13, Ex.PW-1/14, Ex.PW-1/15 (colly) i.e. 13 photographs, Ex.PW-1/16, Ex.PW-1/17 (colly), Ex.PW-1/18, Ex.PW-1/21, Ex.PW-1/22. (The documents mentioned as Ex.PW 1/1, Ex.PW1/3, Ex.PW1/4, Ex.PW1/6 and Ex.PW1/7 in the affidavit were de- exhibited and marked as Mark A, Mark B, Mark C, Mark D and Mark E respectivel). The document Ex.PW1/13 is mentioned in the affidavit as Colly containing four documents, however only one document dated 19.06.2002 was exhibited as Ex.PW1/13). He further relied upon the documents which were exhibited as Ex.PW- 1/19 and Ex.PW1/20. He also relied upon the documents attached with Ex.PW1/13 which were marked as Mark F, Mark G and Mark H).
_____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 15 of 29 PW-1 was duly cross-examined by Sh. S.K. Gupta, Ld. counsel for defendant no. 1, 3 & 10. During his cross-examination, PW1 stated that the property no. 5863, Swadeshi Market, Sadar Bazaar, Delhi was built up upto second Floor i.e. ground floor, first floor and second floor at the time of fire took place on 31.12.2001. The property in which shop nos. 21 to 26 in property no. 5857-5862 at Swadeshi Market was built up upto second floor i.e. ground floor, first floor and second floor at the time of fire took place on 31.12.2001. He admitted that that in the site plan Ex. PW1/5, neither the size of any shop nor the upper floor portion has been shown nor the width of gali is mentioned. He had not taken measurements of the width of the gali at the entry of Swadeshi Market. He could not say whether the width of the gali at the entry point of the market is only 4 ft. wide as he had not measured the same. He further admitted that the fire tenders cannot enter in the gali of the Swadeshi Market on account of less width of gali. He further stated that he was not aware if any site plan was prepared by DC North in respect of the shops destroyed in fire on 31.12.2001. He denied that the site plan Ex. PW-1/5 is not correct as per site and no direction was made to push back the properties to their original place in the order passed by the DC. However, he admitted that the plaintiffs in the present suit had also filed another suit for injunction against Sh. Surender Pal Jain. He did not remember if the site plan mark D1 had been filed in the said suit against Sh. Surender Pal Jain. He admitted that the suit against Sh. Surender Pal Jain has been dismissed and no appeal has been filed and he has seen the certified copy of the plaint filed by the plaintiffs against Surender Pal Jain, which bears his signatures and that of Jai Prakash Aggarwal on the plaint at point A and B. The witness after going through the complete plaint admits that the certified copy Ex. PW-1/D1 is the same plaint which was _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 16 of 29 filed by the plaintiffs against Surender Pal Jain. He did not remember that mark D1 is the same site plan filed alongwith the said plaint.
He further denied that the present suit is only in respect of property no. 5863, Swadeshi Market, Sadar Bazaar, Delhi. He voluntarily said that the suit is also with respect to other properties. He further stated that he has seen the plaint dated 22.03.2002 and there is no mention of any number of any other property. He admitted that in Ex. PW-1/13, there is no mention of property no. 5863, Swadeshi Market, Sadar Bazaar, Delhi and whatever the permission granted by AE Hari Prakash and filed as mark F, G and H does not mention the property no. 5863, Swadesh Market, Sadar Bazaar, Delhi. The photographs Ex.PW-1/15 were taken in June, 2002 by his brother i.e. plaintiff no. 1 Jai Prakash Aggarwal. He was not in possession of negatives as the photographs were taken from polo right camera and he denied that the photographs are not of the suit property. He was not aware who had applied for the permission for raising construction but it was granted in the name of builder and landlord. He further denied that the occupants/tenants had sought permission of AE Building for re-construction as per building bye laws and landlord never applied for any permission. However he admitted that no name of the owner/builder is mentioned in the permissions/withdrawal of permissions. He voluntary said that the word owner/builder is mentioned in the said communication. He did not know if any such permission was sought orally or in writing. He admitted that he had not filed any document on record showing that any permission was sought by the owner/ builder and the photographs Ex. PW-1/11 are not of property no. 5863, Swadeshi Market, Sadar Bazaar, Delhi. He further stated that the photographs are in respect of shops no. 21-26, Swadeshi Market, Sadar Bazaar, _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 17 of 29 Delhi. He further denied that the same does not pertain to the same shops. He was not aware about the width of the gali in front of properties no. 5853-56, Swadeshi Market, Sadar Bazaar, Delhi. The width of the gali in front of properties no. 5857-62, Swadeshi Market, Sadar Bazaar, Delhi was more than the width of gali in front of properties no. 5853-56, Swadeshi Market, Sadar Bazaar, Delhi. He futher denied that defendants no. 1 & 3 are not the owners of property no. 5857-62, Swadeshi Market, Sadar Bazaar, Delhi. It is correct that shop no. 27 falls in property no. 5863, Swadeshi Market, Sadar Bazaar, Delhi. He admitted that defendant no. 3 & 10 are not the owners of shop no. 27. He had not seen the site plan prepared by DC North after the fire took place on 31.12.2001.
Shop no. 27, Swadeshi Market, Sadar Bazar forming part of property no. 5863 was let out initially by its owners to his father, late Shri M.P Aggarwal prior to year 1950-1960. On the roof of said shop, there was a small room and the remaining portion was open and he was not aware what was constructed at the time of letting out the said shop to his father. The position he mentioned as at the time when fire took place. He was not aware who was in possession of the room at the second floor over the shop no. 27. However he admitted that a room on the second floor was existing when the fire took place on 31.12.2001. He filed the certified copy of the site plan attached with the sale deed dated 24.11.1966 on court record which was marked as Mark D. He further denied that the construction raised over the shops no. 21 to 26 were not raised by the owners or that the said construction was carried out by the tenants/occupants of the portions over the said shops. He was not aware if the shopkeepers or their Association sought permission to construct their respective shops from the MCD. He was also not aware that the MCD officials had replied that no permission is _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 18 of 29 required to carry out the construction which was damaged in fire. He was not aware if the DC, North, MCD had prepared a list in respect of the properties gutted in the fire or about the persons who were sufferers in the said fire. He did not remember who were the occupants/tenants of shops no. 21 to 25 at the time when the fire took place and he did not know if at the time of institution of the suit, plaintiffs were aware about the names of tenants/occupants of the said shops no. 21 to 25. However, he was aware that who were the owners of the said shops. He admitted that plaintiffs have not made parties to the present suit to the occupants/tenants of Shop no. 21 to 25 and plaintiffs have not impleaded the occupants/tenants of shops in the first floor and the second floor over the said shops no. 21 to 25. He further admitted that over the roof of Shop no. 26 also, there was construction of first floor and second floor and the occupants of the said floors over shop no. 26 have also not been made party in the present suit. He was not aware if on 24.02.1971, earlier a fire took place in shop no.21 to 25. He voluntarily said that he was a child at that time. He was also not aware the Municipal Property numbers in which shops no. 21 to 26 exists. There are various shops which forms port of property no. 5863. He had not filed any document or site plan showing the various shop, existing in property no. 5863, as deposed by him today. He voluntarily said that he had filed the site plan of shop no. 27 which forms part of property no. 5863, Swadeshi Market, Sadar Bazar, Delhi. He was not aware about the exact number of the properties adjoining property no. 5863. He denied that defendants no. 1 & 2 are not the owners of shop no. 26, Swedeshi Market, Sadar Bazar, Delhi. He was also not aware if Shop no. 26 forms part of property no. 5861, Swedesh Market, Sadar Bazar, Delhi. He further denied that the pillars shown at Point Q, QI and Q2 in site plan Ex.PW1/5 exists in _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 19 of 29 property no.5861. He voluntarily said that these pillars are common for shops no. 26 and 27. He denied that said pillars do not exist or form part of shop no. 27, forming part of property no. 5863 and the defendants no. 1, 3 and 10 have not encroached in any public street as alleged in para no. 9 of my affidavit. However he admitted that pillar Q4 shown in Ex.PW1/5 has already been removed by MCD. He admitted that when the construction of the pillars Q. Q1 and Q2 was commenced by the builder, the same was with his consent. He denied that he had deliberately concealed this fact in his present plaint. He did not remember if the fact regarding his consent as stated above, was mentioned in the plaint or not. He did not understand the plan Mark D-1. He further denied that said plan Mark D-1 was got prepared by him. He did not remember if Mark D-1 was enclosed with the suit filed by himself and his brother Jai Prakash Aggarwal against Mr. Surender Pal Jain. The builders as well as Kalaraji were threatening to raise five storey building. He admitted that when the fire took place on 31.12.2001, the width of the gali in front of shops no. 21 to 26 was 9 feet and Mr. Surender Pal Jain had a portion in his tenancy over the roof of the shops no. 23 & 24.
He was shown the original record file titled "Jai Prakash Aggarwal v. Surender Pal Jain" CS No.101/9/03 decided on 24.05.2012 by the Court of Shri N.K. Malhotra, then JSCC-ASCJ brought by summoned witness, Shri Rajesh, JJA, from the Record Room (Civil), Tis Hazari Courts, Delhi. After seeing the same, he admitted his signature as well as signature of Jai Prakash Aggarwal on the plaint. The certified copy of the said plaint was already exhibited as Ex.PW1/D-1 and signatures of Jai Prakash Aggarwal is at point 'A' and his signatures are at point B. Witness was also shown the original site plan filed in the case filed bearing CS _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 20 of 29 No.101/9/03 brought the summoned witness. After seeing the same, witness admits that he had filed the said site plan. Certified copy of the said site plan which was earlier marked as D-1 was Exb. PW1/D-2. He admitted that said suit bearing no.101/9/03 was dismissed and no appeal against the judgment passed in the said suit has been filed till date. However, he denied that the present suit has been filed only to harass the defendants. He further stated that pillar at point Q4 has already been demolished by the MCD and there is no shop in existence over the red colour portion shown in the site plan Ex.PWI/5. He further denied that earlier there were shops over the red colour portion. He further admitted that the MCD in order to clear the passage had pushed back the shop of Swaroop Singh about 4 feet. He voluntarily said that he has temporarily put the structure on the said space of 4 feet. He did not know the size of shop of Swaroop Singh prior to the fire took place and even after that. He further admitted that MCD had pushed back all the shops no. 21 to
26. He voluntarily said that they have however again put temporary structure on the said space.
PW-1 was also cross-examined by Sh. Umesh Gupta, Ld. Counsel for defendant no. 7 and 8. During his cross- examination, PW1 admitted that MCD has booked the unauthorized construction in the suit property vide UC file no. 148/B/UC/SPZ/2002 dt. 09.07.2002 and after passing demolition order MCD has taken part demolition action. He did not remember if MCD has removed the pillars on the second floor on the roof of the first floor and construction on the ground floor on the disputed 4 ft. portion. PW1 was questioned that MCD could not remove the six pillars erected on the disputed portion as the roof of the building is resting on the said pillars; to which he replied that the said pillars have also been removed by the MCD under the direction of Hon'ble _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 21 of 29 High Court during the pendency of the present suit and thus, roof on the said pillars was also removed from the disputed area. However, the defendants no. 1 to 5 and 10 are still encroaching the 4 ft. disputed area in the form of temporary tin sheds, putting Almihras and takht etc. He further denied that MCD is taking time to time action, if any encroachment is found in the gali in front of the suit property. However, he admitted that if any guideline given by the DC North, Govt. of NCT of Delhi, vide order dt. 14.02.2002 is in violation with the building bye laws, the building bye law will prevail. He further admitted that prior to filing of the present suit he had not served with any legal notice to the MCD.
12. No other witness was examined on behalf of plaintiff and right of the plaintiff to lead further evidence was closed on 19.05.2016.
Defendant's Evidence
13. Defendant no. 3 was examined as DW-1. He tendered his evidence by way of affidavit which was Ex.DW1/A. He affirmed the contents of his affidavit. The said witness was not cross- examined and his evidence cannot be taken into consideration.
14. No other witness was examined on behalf of defendants and defendant evidence was closed on 30.11.2017.
15. During the course of proceedings, defendant no. 1 passed away and Ld. Predecessor of this court was of the opinion that two of the LRs of deceased defendant no. 1 namely Ajay Kalra and Sanjay Kalra are already defendants and cause of action does _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 22 of 29 not survive with respect to remaining LRs. Accordingly, application under Order XXII Rule 4 CPC was allowed with respect to LRs Ajay Kalra and Sanjay Kalra but was dismissed with respect to remaining LR.
16. Vide order dated 09.12.2019, the defendant no 2, 4, 5 and 6 were proceeded ex-parte.
17. Final arguments were heard. Written arguments were filed on behalf of plaintiff as well as defendant no. 3 &10. Entire record is perused.
ISSUE WISE FINDINGS Issue 1: Whether the suit is bad for non/mis-joinder of necessary parties?
18. The onus to prove said issue was upon the defendants. No evidence was led on behalf of any of the defendants.
19. Accordingly, Issue 1 is decided in favour of the plaintiffs and against the defendants.
Issue 2: Whether the suit is barred?
20. The onus to prove said issue was upon the defendants. No evidence was led on behalf of any of the defendants. On behalf of defendant no. 7&8/MCD, it was pleaded that present suit is barred under Section 347A of the DMC Act as demolition order is already passed. However, from the entire plaint it is not made out that plaintiffs are aggrieved by the demolition order or they have filed the present suit challenging said demolition order. Hence, present suit is not barred by Section 347A of DMC Act. _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 23 of 29
21. Accordingly, Issue 2 is decided in favour of the plaintiffs and against the defendants.
Issue 3: Whether the suit is not maintainable in the present form?
22. The onus to prove said issue was upon the defendants. No evidence was led on behalf of any of the defendants.
23. Accordingly, Issue 3 is decided in favour of the plaintiffs and against the defendants.
Issue 4: Whether the plaintiff is entitled for decree of permanent injunction as prayed?
& Issue 5: Whether the plaintiff is entitled for decree of permanent injunction as prayed?
24. The burden to prove aforesaid issues was on the plaintiffs.
25. The plaintiffs have sought decree of Mandatory Injunction thereby directing the defendants to remove and demolish the entire illegal and unauthorized constructions including the pillars made on the area of the shop of the marked plaintiff Q to Q-2 and also to remove and demolish the encroachment shown in the red colour from the Gali/Street: and also to remove the Pillar made at point Q-4, as shown in the site plan attached The plaintiffs have further sought decree of Permanent Injunction, with cost, in the favour of the Plaintiff and against the Defendants from making or permitting to be made any construction _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 24 of 29 in the suit property bearing no. 5863, Swadeshi Market, Sadar Bazar, Delhi.
26. As regards, pillar at Q4 is concerned, the said pillar has already been demolished and hence, the plaintiff is no longer required to discharge his onus regarding the relief pertaining to removal of said pillar.
27. Plaintiff no. 2 testified that the Plaintiffs are the tenants in respect of shop bearing private no. 27, in property No. 5863, Swadeshi Market, Sadar Bazar, Delhi, under the Defendants 1 & 2 since very long, at Rs. 93/- per month. A fire broke in the Swadeshi Market, Sadar Bazar, Delhi on 31-12-2001, in which the shop of the Plaintiff alongwith number of other shops was burnt and gutted in fire. Keeping in mind the public safety, conditions were imposed for reconstruction of the buildings gutted in fire at Swadeshi Market by order of Deputy Commissioner (North). Defendants 1 to 3 and 10 deputed the Defendant No.6, who is a well known builder of unauthorized buildings in the area, with the work of re-construction of the building/property bearing no. 5863, Swadeshi Market, Sadar Bazar, Delhi. When the reconstruction were to commence, all the tenants and the Defendants 1 to 6 and 10, mutually settled that the Pillars shall be raised as per specifications and conditions laid in this regard; and a common Lintel will be laid on the said pillars, and all the shops will be re-constructed with the same length and width, as they were existing earlier to Fire. The Defendants 1 to 6 and 10 raised the pillars at point Q, Q-1, Q-2 of 9" X 9" i.e. half of the said pillars are in the area of the shop of the Plaintiff. The Defendants 1 to 3, 6 and 10 encroached upon the part of the street shown in red colour in the plan and also pillars at point Q-4, made a very thick _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 25 of 29 pillar which blocks the Gate-view of the shop of the Plaintiff. Defendants 1 to 6 and 10 with malafide intentions after raising the said pillars at point Q to Q-2 and by encroaching upon the part of the street and by making the pillar at point Q-4, laid the Lintel leaving the shop of the Plaintiff and left no space on the said pillars for laying the lintel of the shop of the Plaintiff. Now if the Plaintiff lays his own lintel, he will have to make other pillars and wall within his shop area to lay roof/lintel thereby decreasing the considerable space of the shop of the Plaintiff. The shop of the Plaintiff is to be rebuilt of the same size and specifications as it was earlier to fire, but the Defendants 1 to 6 and 10 have illegally made pillars in the space of the Plaintiff's shop and laid the roof thereupon leaving no space on the pillars to lay the roof of the shop of the Plaintiff. Defendants 1 to 3, 6 and 10 in collusion with other Defendants are intending to raise a 5 storey building, and they have and are continuously violating the conditions laid by the authorities, as detailed above. The said defendants have decreased the width of the Gali and have extended their building into the street and have encroached the said street. Further they have a pillar at point Q-4 of 1 feet diameter, which is directly in front of the door of the Plaintiff's shop and the door of the shop of the Plaintiff is hidden due to the said pillar. Earlier it was a building consisting of ground and first and second floor and now the said Defendants are intending to make a five storey building.
28. The facts that emerge from the testimony of plaintiff no. 2 are that Plaintiffs are the tenants in respect of shop bearing private no. 27, in property No. 5863, Swadeshi Market, Sadar Bazar, Delhi. The said fact is not disputed. The property under tenancy of the plaintiff alongwith number of other shops in Swadeshi Market, _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 26 of 29 Sadar Bazar, Delhi were burnt and gutted in fire on 31-12-2001. The said fact is also not disputed.
29. The plaintiff further claims that while reconstructing the damaged shops, all the tenants and the Defendants 1 to 6 and 10, mutually settled that the Pillars shall be raised as per specifications and conditions laid in this regard; and a common Lintel will be laid on the said pillars, and all the shops will be re-constructed with the same length and width, as they were existing earlier to Fire. Defendants 1 to 6 and 10 with malafide intentions after raising the said pillars at point Q to Q-2 and by encroaching upon the part of the street and by making the pillar at point Q-4, laid the Lintel leaving the shop of the Plaintiff and left no space on the said pillars for laying the lintel of the shop of the Plaintiff. Now if the Plaintiff lays his own lintel, he will have to make other pillars and wall within his shop area to lay roof/lintel thereby decreasing the considerable space of the shop of the Plaintiff. The shop of the Plaintiff is to be rebuilt of the same size and specifications as it was earlier to fire, but the Defendants 1 to 6 and 10 have illegally made pillars in the space of the Plaintiff's shop and laid the roof thereupon leaving no space on the pillars to lay the roof of the shop of the Plaintiff.
The said facts are disputed and onus to prove the same was on the plaintiffs.
30. The plaintiffs claim that defendants 1 to 6 and 10 have encroached upon their shop by building the pillars at point Q, Q1 and Q2 thereby decreasing the size of their shop. However, no document is placed on record by the plaintiffs to show the size of their shop prior to fire incident or thereafter. Even there is no _____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 27 of 29 averment regarding the same. In the absence of the same, the truthfulness of plaintiffs' claim cannot be tested.
31. The plaintiffs have failed to establish the size of the shop. Without establishing the size of the shop, it cannot be said that any right of the plaintiffs is violated by construction of pillars at point Q, Q1 and Q2.
32. Further the plaintiffs have sought removal of unauthorized construction from gali/street as shown in red colour. Plaintiffs have merely averred that Defendants 1 to 3, 6 and 10 have decreased the width of the gali and have extended their building into the street and have encroached the said street without specifying the extent of encroachment or the width of gali prior to encroachment. The plaintiffs have also failed to specify as to which of their rights are being violated by alleged unauthorized construction.
33. As regards relief of decree of permanent injunction as sought by the plaintiffs is concerned; the plaintiffs are only tenant with respect to one shop in the property bearing no. 5863, Swadeshi Market, Sadar Bazar, Delhi. It is not specified as under which right they are claiming the aforesaid relief to restrain the defendants from carrying any construction in the property.
34. Injunction is in the nature of preventive relief to prevent violation of any right existing in favour of the plaintiffs. Since the plaintiffs have failed to establish existence of any right in them, question of its violation does not arise. Since the plaintiffs have failed to establish the existence of any cause of action, they are not entitled to any relief.
_____________________________________________________________________________ CS No. 99558/16 Jai Prakash Aggarwal Vs. Sumitra Devi Page no. 28 of 29
35. Accordingly Issue 4 and Issue No. 5 are decided against the plaintiffs and in favour of the defendants.
CONCLUSION
36. On the basis of the findings given on Issue 4 and 5, it is concluded that plaintiffs have failed to establish their case. Accordingly, the suit of plaintiffs is hereby dismissed.
37. No order as to costs.
38. Decree sheet be prepared.
39. File be consigned to Record Room as per rules.
Announced in open Court Digitally
signed by
th
On this 29 day of November, 2023 UPASANA UPASANA
SATIJA
This Judgment contains 29 pages SATIJA Date:
2023.11.29
16:49:33
and each page is signed by me. +0530
(UPASANA SATIJA)
JSCC/ASCJ/GJ (CENTRAL)
TIS HAZARI COURTS/DELHI
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