Order 16

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. RAKESH KUMAR SHARMA:
DISTRICT JUDGE-8 (CENTRAL), EXTN. BLOCK, TIS
HAZARI, DELHI
Suit No. 944/2024
In the matter of:
Sh. Radhey Shyam
….........Plaintiff
VERSUS
Deputy Commissioner Civil Line Zone & Ors.
…….....Defendants
ORDER
1. By this order, I shall dispose of the application under
Order XXXIX Rule 1 and 2 CPC r/w Section 151 CPC filed by the
plaintiff seeking to restrain defendants no. 4 to 7 from raising any
illegal and unauthorized construction in the property no. D-12/473,
Surender Colony, Sani Bazaar Road, Jharoda Part-1, Delhi-110084
(hereinafter “the suit property”) till final disposal of the suit.
2. Brief facts are that the plaintiff has filed the present suit
for permanent and mandatory injunction and damages of Rs.4,34,700/-
against the defendants. It is stated in the plaint that the plaintiff
purchased one shop no. 2, measuring 8ft. x 12 ft. on the southern side
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portion on the ground floor attached with the road 18 ft. wide and
entire first floor without roof rights of shop area measuring 12ft. x 31
ft. along with right handed corner staircase to each floor from khasra
no. 23/5 situated in the area of Village Jharoda Majra, Burari,
Delhi-110084 known as Gali No. D-12/473/1, Surender Colony, Sani
Bazar Road, Part-I, Jharoda Majra, Burari, Delhi-110084 (hereinafter
“suit property”) from one Sh. Rakesh Kumar. The property is
constructed upto ground and first floor. The construction is more than
30 years old and the property is in dilapidated condition. On
27.08.2024 in the morning, the defendants no. 4 to 7 started raising
construction of the second floor in the property without any sanction
plan. When the plaintiff asked them whey they are raising the
construction, they told the plaintiff that they had purchased the roof
from one Smt. Anju Kumari. When the plaintiff asked defendant no. 4
to stop the construction, the defendants threatened the plaintiff of dire
consequences. When the plaintiff told them that the construction of
the building is very old and it will fall down if construction is raised
by the defendants, the defendants no. 4 to 7 told the plaintiff that they
will raise the construction at any cost. The plaintiff gave complaints
to defendants no. 1 to 3 but no action has been taken. Due to illegal
construction raised by defendants no. 4 to 7, the property has suffered
damage and the life of the plaintiff and other persons living in the
property is in danger.
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3. Defendants no. 1 and 2 have contested the present suit by
filing a joint written statement. It is submitted that the suit property
was inspected on 25.10.2024. It was noticed that owner of the roof of
the first floor has carried out construction in the shape of entire second
floor without obtaining any sanctioned building plan. Hence, the
unauthorized construction was booked. A show cause notice has
already been issued. The further action shall be taken by the
department as per DMC Act after following due process of law. A
Work Stop Notice dated 25.10.2024 was also issued to the SHO PS
Burari to stop the construction.
4. One Action Taken Report was filed on behalf of
defendant no.3 SHO, PS Wazirabad stating that the complaint given
by the plaintiff was handed over to Beat Officer, HC Nekiran who
lodged a complaint dated 31.08.2024 with MCD for unauthorized
construction, filled the form of unauthorized construction and sent the
same on 04.09.2024. Further action will be taken by MCD.
5. Defendants no. 4 to 7 have also contested the suit by
filing a joint written statement. As preliminary objections, it is
submitted that both the plaintiff and defendants no. 4 to 7 purchased
the suit premises in the year 2020. Defendant no. 4 purchased the built
up second floor with roof rights of the suit premises from one Smt.
Anju Garg w/o Sh. Rakesh Kumar and possession of the second floor
with roof rights was handed over to defendant no. 4. The defendants
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no. 4 to 7 started the construction of the second floor and the plaintiff
renovated his portion of the suit premises at the same time. The
defendants no. 4 to 7 are currently residing on the second floor of the
suit property. Since the plaintiff has no roof rights in the suit premises,
he has no locus standi to file the present suit. On merits, it is
submitted that the suit premises is already constructed on the second
floor and defendant no. 4 to 7 are currently residing in the same. The
other contents of the plaint are denied by defendants no. 4 to 7. The
defendants have sought dismissal of the suit as well as the application.
6. In his replication to the written statement of defendants
no. 4 to 7, it is admitted that the plaintiff had purchased the property in
the year 2020. The other contents of the written statement are denied
by the plaintiff. It is submitted by the plaintiff that no second floor
existed in the suit property prior to the year 2020. The defendants no.
4 to 7 have let out the second floor to 3rd party and are not residing in
the same. Smt. Anju Garg had no right in the suit property. There
were no presence of the second floor in the suit property before the
monsoon of the year 2024.
7. Counsels for plaintiff and defendants no. 1, 2, 4 to 7
advanced arguments as per their respective pleadings. None appeared
for defendant no. 3 to advance arguments.
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8. In addition it was contended by Ld Counsel for plaintiff
that photographs showing unauthorized construction have been placed
on record. She further contended that as per reply filed by the
defendants no. 1 and 2 also, there is unauthorized construction on the
2nd Floor of the suit premises. As per defendants no. 1 and 2 the
unauthorized construction was booked on 25.10.2024. However,
except for issuing show cause notice and work stop notice on
25.10.2024, no action has been taken by the defendants no. 1 and 2.
Since it is not disputed by the MCD that construction raised by
defendants no. 4 to 7 is unauthorized, the plaintiff has prima facie
case. The balance of convenience lies in his favour and he shall suffer
an irreparable loss and injury in case defendants no. 4 to 7 are not
restrained from raising unauthorized construction till disposal of the
suit.
9. Ld Counsel for defendants no. 1 and 2 additionally relied
upon judgment dated 16.10.2017 passed by the Hon’ble High Court in
RSA No. 243/2017, Rajendra Motwani and Anr. v. MCD and Ors.
10. Ld Counsel for defendants no. 4 to 7 additionally
submitted that defendants no. 1 and 2 have already taken cognizance
of the construction raised by defendants no. 4 to 7 and they are
proceedings as per law. He relied upon one judgment dated
12.07.2024 passed by Ms. Swati Sharma, Senior Civil Judge-cum-
Rent Controller, South East District, Saket Court, New Delhi in suit
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no. 1178/2020 titled as Smt. Poonam Devi and Ors. v. Smt. Hemlata
and Ors, to contend that the plaintiff has not come to the Court with
clean hands and hence he is not entitled to the relief claimed. He
contended that the suit filed by the plaintiff is for blackmailing
defendants no. 4 to 7 and to extort money from them.
11. I have heard counsel for the parties and also gone through
the record as well as authorities/judgments relied upon by them.
12. It is a settled law that to succeed an application under
Order 39 Rules 1 and 2 CPC plaintiff has to show that he has a prima
facie case in which he is most likely to succeed, the balance of
convenience lies in his favour and that he shall suffer irreparable loss
and injury in case relief as prayed by him is not granted. It is also
settled law that grant of injunction is in the discretion of the Court and
a party who does not come to the Court with clean hands is not
entitled to exercise of discretion in his favour.
13. In Para-2 of the preliminary objections of the written
statement of defendants no. 4 to 7 it is stated that “….it is submitted
that the defendants started the construction of the 2nd Floor….”
14. Similarly, in Para-4 of the preliminary objections of the
written statement it is submitted by defendants no. 4 to 7 that “…..
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when defendant no. 4 purchased the 2nd Floor of the suit property and
started constructing the same….”
15. It is clear that it is not disputed by the defendants that
defendants no. 4 to 7 are raising construction on the 2nd Floor of the
suit premises. In the entire written statement, it is nowhere the case of
defendants no. 4 to 7 that they have taken any permission/sanction
from defendants no. 1 and 2 for raising such construction. On the
contrary, as per the written statement filed by defendants no. 1 and 2
the constructions raised by defendants no. 4 to 7 on the 2nd Floor is
illegal and unauthorized. This contention of defendants no. 1 and 2
was not at all contested by the Ld Counsel for defendants no. 4 to 7
during arguments. Hence, it is clear that the construction raised by
defendants no. 4 to 7 on the 2nd Floor of the suit premises is illegal and
unauthorized. Hence there cannot be any doubt that plaintiff has prima
facie case. The balance of convenience lies in favour of the plaintiff
and against the defendant and the plaintiff shall suffer an irreparable
loss and injury in case defendants no. 4 to 7 are not restrained from
raising any unauthorized construction on the 2nd Floor of the suit
premises.
16. However, as noted above, for succeed in the application it
is necessary that plaintiff should come to the Court with clean hands.
The entire plaint read as a whole gives the impression that prior of
raising of construction by defendants no. 4 to 7 there was no
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construction on the 2nd Floor i.e. on the roof of the first floor. In Para 2
of the plaint it is stated that “That the above said property constructed
upto ground and first floor….” Similarly, in Para-4 of the plaint it is
specifically stated by the plaintiff that defendant no. 4 told him that
she purchased this “roof” from one Anju Kumari. Significantly, in
Para-2 of the reply to the preliminary objections in his replication, it is
submitted by the plaintiff that “…. the plaintiff specifically contents
the assertion of defendants no. 4 to 7 regarding the alleged sale of the
second floor property as no such structure existed in the suit property
prior to 2020….” Hence, the statement made by the plaintiff in the
plaint that prior to the present construction raised by defendants no. 4
to 7, there was no 2nd Floor is false to his knowledge.
17. Not only this, in Para-3 of the reply on merits of his
replication it is submitted by the plaintiff that “….there were no
presence of 2nd Floor on the suit property before monsoon of 2024”
There cannot be any doubt that this statement is contrary to the
statement of the plaintiff that there was no 2nd Floor prior to 2020.
18. It is clear that the plaintiff has not come to the Court with
clean hands and has made averments false to his knowledge. Hence,
he is not entitled to exercise of any discretion in his favour.
19. In view of the above discussion, the application is
dismissed.
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20. However, nothing stated herein above shall:-
(a) tantamount to expression of final opinion on the merits of the
case.
(b) debar defendants no. 1 and 2 from taking any action against
defendants no. 4 to 7 for raising unauthorized construction by them.
Pronounced in the open court (RAKESH KUMAR SHARMA)
on 25th October, 2025 District Judge-08 (Central),
Extn. Block, Tis Hazari Courts
New Delhi
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