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12. Plaintiff has filed the WS to the counter claim rebutting the contentions raised by defendant no.1/counter claimant in his counter claim.

Application under Order 39 Rule 1 and 2 CPC

13. Pleadings were already completed when an application u/o 39 rule 1 & 2 CPC was filed by the counter claimant /defendant no. 1 on 18.04.2016 wherein it has been claimed that the plaintiff has deliberately and willfully raised the unauthorized construction over the portion of the suit property in his possession during the period from end of February­ 6 of 14 2016 to second week of April 2016 in collusion with the officials of the MCD. The plaintiff had demolished the parda wall to the extent of 10 ft in the front courtyard and had raised a fresh pucca room in the front courtyard with brick masonry with RCC roof and parapet wall of 4 ft height. Plaintiff has also made structural changes in the existing structure of the suit property causing danger to the structural safety of 50 year old building by removing the windows of the kitchen and making fresh openings in the mumty leading to the roof of the old structure. Photographs of ongoing and unauthorized construction have been placed on record alongwith the application. The counter claimant/defendant no.1 is further apprehending that plaintiff is likely to make further structural changes in the old construction leading to danger to the structural safety of the entire building. Hence, the application has been filed seeking a restraint against the plaintiff from making any further construction/structural changes in the portion of the suit property presently in his occupation.

REPLY TO THE APPLICATION:

14. Reply to the application was filed by the plaintiff admitting raising of construction by him but denying the same to be unauthorized construction affecting the structural stability of the suit property.

IMPUGNED ORDER:

7 of 14

15. After hearing the arguments on the application, Ld. Trial court dismissed the application vide impugned order 06.07.2017 observing that in the counter claim, defendant no.1 has not mentioned about any structural changes having been carried out in the suit property by the plaintiff. Since the alleged construction has been raised by the plaintiff subsequent to the filing of the counter claim by defendant no.1, therefore, the facts are beyond the pleadings of the counter claim. No amendment has been made in the pleadings in order to incorporate these subsequent facts. Accordingly, no relief whether final or interim can be granted on the basis of the facts which are not a part of pleadings and accordingly, no prima facie case is made out against the counter claimant/defendant no.1.

66. In his written statement to the said counter claim, plaintiff has merely denied the entire contents of paragraph no. 17 without specifically mentioning as to what is the status of the construction in the portion of the suit property in his possession. Accordingly, the denial is merely vague

10 of 14 and in a routine manner and not specific.

20. Defendant no.1/counter claimant had also sought a specific relief in his counter claim being relief no.(IV) i.e. a decree of permanent injunction restraining the non­claimant , his nominees, assignees, heirs from raising any sort of construction,modification, heavy repairs and / or changing the character of the existing structure in and above any portion of the suit property presently in his unauthorized possession. In the application u/o 39 rule 1 & 2 CPC, the defendant no.1/counter claimant is seeking a restraint against the plaintiff /non claimant restraining him from raising any further construction or making any further structural changes in the portion of the suit property presently in his occupation. Accordingly, in my opinion the interim relief sought by the plaintiff is in consonance with the main relief sought by him in his counter claim.

23. Let us now consider the facts of the present case. In the application under consideration defendant no.1/counter claimant had alleged that plaintiff had raised unauthorized construction and made structural changes in the portion of the suit property in his possession.

24. The fact that the construction has been raised by the plaintiff after filing of the counter claim is admitted by him in para no.6 of his reply filed to the application u/o 39 rule 1 & 2 CPC. Thus the fact that the construction has been raised by plaintiff is not in dispute. Plaintiff is alleging that the construction is authorized while as per defendant no 1, it is unauthorized. Plaintiff has not filed any document alongwith his reply to show that he had taken permission from the municipal authorities prior to the raising of the construction by him. Admittedly, the suit property is very old having being constructed in the year 1965­66. Making random construction/structural changes in such an old property without obtaining 12 of 14 proper sanctions and approval from structural engineer is likely to effect the structural stability of the property. Accordingly, a prima­facie case is made out in favour of the appellant/defendant no.1/counter claimant. For the same reason balance of convenience also lies in his favour. In case the unauthorized construction /structural changes made by the plaintiff in the portion of the suit property in his possession result in structural damage to the suit property, the defendant no. 1/counter claimant who is also joint owner and in possession of a larger portion of the suit property is likely to suffer damages which cannot be compensated in terms of money.