Final Order 9

Order Details: COPY OF ORDER
Pdf Text: CS SCJ-852/2025 Mohd. Danish Vs. Mohd. Asif & Anr.
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IN THE COURT OF SH. MILAN GOEL: CIVIL JUDGE – 08
(CENTRAL), TIS HAZARI COURTS,DELHI
SUIT NO: 852/25
CNR NO.DLCT03-002896-2025
IN THE MATTER OF: -
Mohd. Danish
S/o Mohd. Rais
R/o T-564, Chamelian Road,
Sadar Bazar, Delhi-110006.
...PLAINTIFF
VERSUS
1. Asif @ Mohd. Ashif
R/o 6631/32, Ahmad Complex,
Chamelian Road, Bara Hindu Rao,
Sadar Bazar, Delhi-110006.
2.Kashif @ Mohd. Kashif
R/o 6631/32, Ahmad Complex,
Chamelian Road, Bara Hindu Rao,
Sadar Bazar, Delhi-110006.
...DEFENDANT(s)
Date of Institution : 13.05.2025
Date of Judgment : 15.04.2026
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SUIT FOR PERMANENT AND MANDATORY INJUNCTION
E X – P A R T E J U D G M E N T
1. By way of this judgment, I shall dispose of the present suit filed by the
plaintiff seeking permanent and mandatory injunction against Sh. Asif
@ Mohd. Ashif and Sh. Kashif @ Mohd. Kashif (hereinafter referred
to as “the defendants”).
BRIEF FACTS OF THE PLAINT
2. The case of the plaintiff is that he is in lawful possession of property
bearing No. H. No. T-564, Fourth Floor, Chamelian Road, Ahata
Kidara, Sadar Bazar, Ward No. 81, Quresh Nagar, Delhi–110006, and is
residing therein along with his family members.
3. It is further the case of the plaintiff that on 06.03.2025, Defendant Nos.
1 and 2, along with certain labourers, arrived at the terrace/rooftop of
the aforesaid property and placed a pile of bricks thereon under the
pretext that the same were leftover materials from one of their
construction sites.
4. It is also the case of the plaintiff that on 08.03.2025, during the afternoon
hours, certain masons and labourers entered the terrace of the suit
property and began chipping/paring the boundary wall. When the
plaintiff and other occupants of the property objected to such acts, the
associates of the defendants threatened the plaintiff with dire
consequences.
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5. Thereafter, the plaintiff approached the concerned police station and
lodged a complaint on 08.03.2025. However, despite the said complaint,
on 15.04.2025, the defendants forcibly broke open the locks placed by
the plaintiff. On the same night, i.e., 15.04.2025, the false ceiling of the
plaintiff’s floor collapsed, as a result of which the plaintiff’s brother
sustained injuries.Hence, the present suit.
PROCEEDINGS IN THE SUIT
6. Summons of the suit were duly issued to the defendants and were served
upon them through their employee on 21.06.2025. The record further
reveals that, despite service, the defendants failed to appear before this
Hon’ble Court and did not file their written statement. Consequently,
they were proceeded against ex parte vide order dated 06.08.2025.
7. As per Order VIII Rule 5(1) of the Code of Civil Procedure, 1908, in the
absence of denial of the allegations made in the plaint, the Court may
presume the facts to be admitted. Section 58 of the Indian Evidence Act
provides that facts admitted need not be proved. However, both the
provisions empower the Court to require proof of admitted facts. Order
VIII Rule 10 CPC also vests discretion in the Court either to pronounce
judgment or to pass such other order as it deems fit in the absence of a
written statement.
8. In Balraj Taneja & Anr. v. Sunil Madan & Anr. [(1999) 8 SCC 396], the
Hon’ble Supreme Court held that the Court cannot act blindly or
mechanically. In exercise of the said powers and as a matter of caution,
this Court required the plaintiff to prove its case by leading evidence.
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PLAINTIFF’S EVIDENCE
9. In support of its case, the plaintiff examined himself and tendered his
affidavit in evidence, exhibited as Ex.PW-1/A and relied upon the
following documents:
S No. Type of Document Exhibit
1. Aadhar Card of the plaintiff PW1/1 (OSR)
2. Photographs of the suit property PW1/2 (colly)
3. Photographs of false ceiling PW1/4
4. Copy of medical documents of
brother of the plaintiff
Mark-A
10.PW-1 was duly examined and discharged, the defendants having already
been proceeded ex parte. Thereafter, the plaintiff’s evidence was closed
on 20.12.2025.
APPRECIATION OF EVIDENCE AND FINDINGS
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11.I have heard the counsel for the plaintiff and carefully perused the
record.
12.It is settled law that in the absence of cross-examination, the testimony
of a witness remains unrebutted and can be relied upon. In this regard,
reference may be made to the judgment of the Hon’ble High Court of
Delhi in M/s Eco Lab Inc. v. Eco Labs Ltd., 2011 (185) DLT 664,
wherein it was held that when the defendant fails to cross-examine the
plaintiff’s witness, the evidence led by the plaintiff is liable to be taken
as correct.
13.Since the defendant failed to appear despite service, the averments made
in the plaint as well as the evidence adduced by the plaintiff have gone
unchallenged.
14.From the unrebutted testimony of PW-1 and the documents placed on
record, this Court finds that the plaintiff has been able to establish his
lawful possession over the suit property. The identity and residence of
the plaintiff stand corroborated from the Aadhar Card exhibited as Ex.
PW1/1 (OSR). The photographs of the suit property exhibited as Ex.
PW1/2 (colly) clearly depict the terrace area and support the version of
the plaintiff regarding interference by the defendants. Further, the
photographs of the damaged/false ceiling exhibited as Ex. PW1/4
substantiates the allegation that damage was caused to the plaintiff’s
portion of the property. The medical documents of the plaintiff’s brother
marked as Mark-A also lend support to the case of the plaintiff
regarding the injuries sustained due to the said incident.
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15.The testimony of PW-1 has remained unchallenged and uncontroverted,
as the defendants chose not to appear and contest the present suit. There
is nothing on record to discredit the version of the plaintiff. Accordingly,
in the absence of any rebuttal, this Court finds no reason to disbelieve
the evidence led by the plaintiff.
RELIEF
16.In view of the aforesaid discussion and findings, the present suit is
decreed in favour of the plaintiff and against the defendants.
17.The defendants are restrained from raising any illegal or unauthorized
construction on the terrace of the fourth floor of property bearing No.
T-564, Chamelian Road, Ahata Kidara, Sadar Bazar, Ward No. 81
(Quresh Nagar), Delhi–110006.
18.The defendants are further directed, by way of a decree of mandatory
injunction, to remove the bricks and any other construction material, if
lying on the terrace/rooftop of the suit property.
19.Decree sheet be prepared accordingly.
20.File be consigned to the Record Room.
(This judgment contains 6 pages
and each page has been signed by me.)
Announced in the open court (MILAN GOEL)
on 15.04.2026 Civil Judge-08
(Central)/Delhi
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