Interim Order 6

Order Details: COPY OF ORDER
Pdf Text: CS SCJ 1873/23
CNR No. DLCT030053882023
RAM PRAKASH Vs. BABITA VERMA
29.05.2024
Present : None.
Vide this order, the application filed by the plaintiffs
under order 39 Rule 1 & 2 CPC and the application filed by the
defendant No. 1 and 2 under order 7 Rule 11 CPC shall be
decided.
The plaintiffs have filed the present suit seeking
permanent injunction against defendant No. 1 thereby restraining
them from interfering in the peaceful possession of the plaintiff
and use of the suit property i.e. property No. 1546, Gali Jair
Satta, near Marwari School, Nai Sarak, Delhi. The plaintiffs have
also sought mandatory injunction against defendant No. 1 to 4
directing defendant No. 1 to 4 to remove the debris, garbage etc.
from the roof of the shops in the suit property and that defendant
No. 1 and 2 be directed to repair the roof of the shops.
In the interim application, plaintiffs are seeking
interim injunction against defendant No. 1 and 2 thereby
restraining them from dumping the garbage on the roof of the suit
property or damaging the suit property or causing interference in
the use and occupation of the plaintiffs of the suit property till the
pendency of the present suit.
In the plaint, it is pleaded by the plaintiffs that
plaintiffs are tenants under the tenancy of Smt. Bashanti Devi in
respect of shops at 1546, ground floor, Gali Jair Satta, near
Marwari School, Nai Sarak, Delhi (hereinafter referred to as suit
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property). That defendant No. 1 and 2 are residing at property
No. 1544, third floor, Gali Jair Satta, near Marwari School, Nai
Sarak, Delhi. That defendants have been throwing debris,
garbage etc. on the roof of the shops of the plaintiffs for the last
one year. That the debris and garbage have been accumulated
which led to retention of the rainy water. That the water makes
breading ground for mosquitoes and dengue larva. That due to
the retention of the water, seepage has occurred in the roof and
walls of the shops of the plaintiffs which has caused damage to
the shops and the business of the plaintiffs. That whenever the
plaintiffs had attempted to remove debris from the roof of the
shops, defendant No. 1 used to stop the plaintiffs and threatened
with dire consequences. That the plaintiffs have made complaint
to defendant No. 3 /MCD but no action was taken. That
complaint was also made to the local police. Hence, the present
suit.
Defendant No.1 and 2 have filed WS stating that the
plaintiffs have concealed that there were old tenants namely Smt.
Rama Devi and Sh. Suresh Sharma who occupied the temporary
shed at the roof of the suit property and when they vacated the
suit property, their shelter got damaged due to natural calamity
leaving their waste material and belongings on the roof. That the
plaintiffs have dragged the defendants in the present suit only to
harass them. That no proof has been brought on record to show
that defendant No. 1 and 2 have been throwing garbage etc. on
the roof of the suit property. That the present suit is a counter
blast of the notice dated 25.07.2023 whereby the tenancy of the
plaintiffs was terminated.
Defendant No. 3/MCD has filed its WS stating that
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the suit property was visited on 20.11.2023 by the officials of
defendant No. 3/MCD and removed all the garbage and debris
etc.
Arguments heard. Record perused.
There is no prima facie material to hold that
defendant No. 1 and 2 have been throwing garbage on the roof of
the suit property. It is a question of fact that whether defendant
No. 1 and 2 have been deliberately throwing garbage on the roof
of the suit property and the same can only be decided after the
parties have led evidences during the trial. A prima facie view
cannot be taken in favour of the plaintiffs on a disputed question
of facts.
Accordingly, the plaintiffs have failed to establish a
prima facie case in their favour. Consequently, the application
under order 39 Rule 1 & 2 CPC is dismissed.
Nothing in this order shall tantamount to an
expression on the merits of the case.
In the application under order 7 Rule 11 CPC, it is
stated by defendant No. 1 and 2 that the present suit is without
any cause of action and that the plaintiffs have concealed
material facts. It is further stated that many objections have been
taken by defendant No. 1 and 2 in their WS. That the present suit
is based on false and concocted story and is a counter blast to the
notice issued by defendants No. 1 and 2 on 25.07.2023 for
termination of the tenancy of the plaintiffs.
In the entire application, it is not mentioned as to
how the present suit does not disclose any cause of action.
Nothing has been mentioned as to why the present suit is not
maintainable and liable to be rejected under order 7 Rule 11
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CPC. It is settled law that for deciding whether or not the plaint
discloses cause of action, only the averments made in the plaint
are to be considered. After perusal of the plaint, it does not
appear that the present suit is without any cause of action. There
are specific allegations made by the plaintiffs against defendant
No. 1 and 2 that they are throwing garbage on the roof of the suit
property due to which the property under the possession of the
plaintiffs has suffered damage.
Accordingly, the application under order 7 Rule 11
CPC is dismissed.
Put up for admission-denial of documents and
framing of issues on 22.08.2024.
(Pranav Joshi)
ASCJ (Central)/Delhi
29.05.2024
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