Final Order 2

Order Details: COPY OF ORDER
Pdf Text: CS SCJ 2286/25
KULWINDER SINGH Vs. MCD NORTH THROUGH ITS COMMISSIONER
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18.12.2025
CS SCJ 2286/25
KULWINDER SINGH Vs. MCD NORTH THROUGH ITS
COMMISSIONER & Anr.
CNR No. DLCT030076502025
18.12.2025
ORDER
1. Brief facts, as per the plaint, are that defendant no.2 is
residing at property bearing H. No. 674, Ground Floor, Street no.
19 (back side) and Street No. 20 (Front side), Joshi Road, Karol
Bagh, New Delhi -110005 (hereinafter referred as ‘suit property’)
and plaintiff is the neighbour of the defendant no.2. It is further
indicated that the defendant no.2 without obtaining any sanction
from the completent authority has started constructing staircases
on the back side of his property, which is encroaching 2-3 ft.
space of the gali, which is not much wide and due to which, the
street is getting blocked and creating difficulty in turning the
vehicle for parking it inside the gali.
2. Therefore, the plaintiff has filed the present suit seeking
permanent injunction against defendant no.2 to the effect that he
be restrained from carrying out any further illegal and
unauthorized construction in the suit property. Plaintiff has
further sought mandatory injunction against defendant no.1/MCD
to the effect that defendant no.1/MCD be directed to demolish
the already raised unauthorized construction in the suit property.
3. From the aforesaid facts, it is clear that the plaintiff is
aggrieved by the construction of stair cases by the defendant no.2
on the back side of suit property, which as per the plaintiff is
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causing grave nuisance in the gali. But since the plaintiff has
filed this suit in his individual capacity, therefore, clarifications
were sought from the plaintiff on the maintainability of the
present suit on account of locus/ cause of action of the plaintiff to
file this suit in view of judgment of Hon’ble High Court of Delhi
passed in
Rajendra Motwani & Ors. vs. MCD & Ors., RSA
No.243/17 dated 16.10.2017.
4. Submissions of the Ld. Counsel for the plaintiff has
been heard on the aforesaid aspects. During the course of
arguments, it is submitted by Ld. Counsel for the plaintiff that
due to the alleged unauthorized construction of staircase in the
back side of the suit property, grave inconvenience is being
caused in the movement of the vehicles in the gali. At the end, it
is requested that the suit is maintainable in the present form and
be proceeded further as per law.
5. As highlighted above, the plaintiff has filed the present suit
feeling aggrieved by public nuisance in the form of part blockage
caused by the alleged unauthorized staircases constructed by
defendant no.2 in the back side of suit property. Interestingly, in
the site plan depicting the suit property, as attached with the
plain, plaintiff’s property is not finding mention on either side of
the four boundaries of the suit property. Further, in the entire
plaint, the plaintiff has not even mentioned his own property
number and has not indicated as to where his property is situated
qua the suit property. Though, in the memo of parties, the
plaintiff has indicated his residence as house bearing no. 632,
Gali No.18, Joshi Road, Karol Bagh, New Delhi (whereas in the
affidavit attached with the plaint, house number is indicated as
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642 instead of 632). These facts only indicate that plaintiff’s
house is not even situated adjacent to the suit property.
6. Since in the site plan attached with the petition, the
property of the plaintiff has not been highlighted, therefore,
counsel for plaintiff was even asked to clarify as to how much
distance is there in between the house of the plaintiff and the
alleged staircases constructed by the defendant no.2 in the suit
property, whereupon, Ld. counsel submitted that house of the
plaintiff is situated around 40 to 50 metres away from said
staircases.
7. Therefore, from the perusal of the plaint as well as
documents attached including site plan and photographs, as also
the submissions made by Ld. Counsel for the plaintiff, it is clear
that the plaint of the plaintiff is not disclosing any specific injury
to the plaintiff on account of said alleged construction and the
plaintiff is only feeling aggrieved by reduction of the width of the
gali by 2-3 feet only at a particular portion.
8. At this stage it is apt to refer to the following observations
of Hon’ble Delhi High Court passed in
Rajendra Motwani & Ors.
vs. MCD & Ors., RSA No.243/17 decided on 16.10.2017 -
“
8. The second reason for rejecting the argument
urged on behalf of the appellants/plaintiffs is that
an illegal construction in itself does not give any
legal right to a neighbor. An illegal construction
always no doubt gives locus standi to the local
municipal authorities to seek removal of the illegal
construction, but, a right of a neighbor only arises
if the legal rights of light and air or any other legal
right is affected by virtue of the illegal construction
of the neighbor. Legal right to light and air is only
in terms of Section 15 of the Easements Act, 1882
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which requires a cause of action to be laid out and
proved that right to light and air has been enjoyed
for 20 years and only on completion of 20 years
there is a right to acquisition by prescription in the
easementary rights. It is relevant to note that even
after acquisition of easementary rights of
prescription, yet, right to injunction for a neighbor
is not absolute and is covered by Section 33 of the
Easements Act which requires that disturbance to
the easementary rights must actually cause
substantial damage to a neighbor and the infraction
materially diminishes the value of the dominant
heritage with the fact that there is material
interference in the physical comfort of the neighbor
of living in his own house or prevents the neighbor
from carrying on his accustomed business in the
dominant heritage/his own house. All these are
factual aspects and admittedly there is no cause of
action which is laid out in the plaint in terms of
Sections 15 and 33 of the Easements Act that right
to easement of the appellants/plaintiffs has become
absolute as it has been enjoyed for 20 years and
that in fact after rights to easement are acquired by
prescription there is also a substantial damage to
the appellants/plaintiffs or there is material
interference in the physical comfort of the
appellants/plaintiffs or the appellants/plaintiffs
being prevented from carrying on his accustomed
business in their own dominant heritage/own
property.”
9. In view of the law laid down by Hon’ble Delhi High
Court as discussed above, it is clear that plaintiff can not claim
that any cause of action has arisen in his favour to file the present
suit before this Court only on account alleged unauthorized
construction unless he shows specific injuries to any of his rights.
10. In view of the aforesaid discussion, this Court
comes to an irresistible conclusion that there is no cause of action
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in favour of the plaintiff and therefore, the plaint of the plaintiff
stands rejected in terms of Order 7 Rule 11 (a) of CPC.
Ordered accordingly.
(Gopal Krishan)
ASCJ-01 (Central)/Delhi
18.12.2025
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