Interim Order 7

Order Details: COPY OF ORDER
Pdf Text: Civ Suit 339/26
CNR No. DLNE03-000587-2026
MOHD JAVED
Vs.
SHAHZAD MALIK AND ANR
03.09.2026
Present: Sh. A.S. Khan, Ld. counsel for plaintiff alongwith
plaintiff.
Sh. Amit Kain, Ld. counsel for D-1/Shahzad Malik.
Sh. Vijay Tyagi & Ms. Tanishka, Ld. counsel for
D-2/MCD.
1. Vide this order, I shall dispose off the application u/o 39
Rule 1 & 2 CPC filed on behalf of the plaintiff for restraining the
defendant no. 1, his associates, representatives, assignees etc.
from carrying out further illegal and unauthorized construction
over the suit property no. 162, Gali No. 2, Khasra No. 342, near
Anar Masjid, Old Mustafabad, Delhi-110094 measuring about 67
sq. yds. as shown in Red Colour in Site Plan.
2. In brief, it is the case of the plaintiff that father of the
plaintiff namely Shri Haji Bhullan was the owner of built up
property bearing no. 161, Gali No. 2, Near Anar Masjid, Old
Mustafabad, Delhi-110094, who was expired on 11.05.2025 at
Dharamshila Hospital, Vasundhara, Delhi leaving behind the
plaintiff and other legal heirs. It is further stated that plaintiff
alongwith his mother, minor son are residing in the adjacent
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building bearing no. 161, Gali No. 2, Near Anar Masjid, Old
Mustafabad, Delhi-110094. It is further stated that defendant has
constructed the illegal and unauthorized construction over the
suit property bearing no. 162, Gali No. 2, Khasra No. 342, Near
Anar Masjid, Old Mustafabad, Delhi-110094 measuring about 67
sq. yds. without getting sanctioned building site plan or without
permission from the competent authority/D-2. It is further stated
that on 03.05.2026, plaintiff made complaint to police but no
action has been taken. It is further stated that due to illegal and
unauthorized construction over the suit property, minor and
major cracks and seepage have been appearing in the walls as
well as floors of the property of the plaintiff. It is further stated
that on 07.07.2026 & 08.07.2026, plaintiff lodged a written
complaint to the office of D-2 as well as to the SHO, PS
Dayalpur, Delhi but no action has been taken.
3. In reply/WS filed by defendant no. 1, it is stated that
plaintiff has concealed the material & true facts. It is further
stated that plaintiff recently constructed his house bearing no.
161, Gali No. 2, near Anar Masjid, Old Mustafabad, Delhi-94
without obtaining any sanction plan. It is further stated that
plaintiff encroached government land by raising chhajja about 4
feet. It is further stated that ground floor, first floor, second floor,
third floor & fourth floor constructed by plaintiff in the year
2024. It is further stated that present suit has been filed without
any cause of action. It is further stated that defendant no. 1 had
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purchased the property bearing no. 162, Gali No. 2, Khasra No.
342, near Anar Masjid, Old Mustafabad, Delhi-110094 from its
previous owner and plaintiff was mediator(property dealer) in
said deal of suit property and put his signature as a witness. It is
further stated that present suit is barred by Section 477 & 478 of
Delhi Municipal Act, 1957. It is further stated that plaintiff has
no locus standi to file the suit and same is liable to be dismissed
u/o VII Rule 11 CPC. It is further stated that suit is not properly
valued and plaintiff has not paid proper court fee. Defendant
relied upon various judgments.
4. In reply/WS filed by D-2/MCD, it is stated that the
concerned official of answering defendant has inspected the
subject property bearing No. 162, Gali no. 2, Kh. No. 342, Near
Anar Masjid, Old Mustafabad, Delhi-110094 on 07.08.2026 and
it was noticed that the owner/occupier has raised the
unauthorized construction over the above said property.
Thereafter, the property was booked vide file No. 45/B-I/UC/SH-
N/2026 dated 07.08.2026 U/s 343 & 344 (1) of DMC Act, 1957,
unauthorized construction of ground floor. Hence, a show cause
notice vide No. 17478 dated 07.08.2026 U/s 343 & 344 of DMC
Act, 1957 was issued to Sh. Shahzad Malik/owner/builder
(Defendant No. 1) of the suit property and reply of the same is
awaited. Further course of action will be taken as per provisions
of DMC Act. It is further stated that present suit is barred by
Section 477/478 of DMC Act for want of service of statutory
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notice prior to filing the present suit. It is further stated that there
is no cause of action arose in favour of plaintiff. It is further
stated that plaintiff has concealed the material facts that
answering defendant has already initiated action against
unauthorized construction.
5. Submissions heard. File perused.
6. For deciding the injunction application, status report/WS
filed by the MCD is very important. The MCD has filed the WS
thereby stating that the subject property bearing No. 162, Gali no.
2, Kh. No. 342, Near Anar Masjid, Old Mustafabad,
Delhi-110094 was inspected by concerned official on 07.08.2026
and it was noticed that the owner/occupier has raised the
unauthorized construction over the above said property.
Thereafter, the property was booked vide file No. 45/B-I/UC/SH-
N/2026 dated 07.08.2026 U/s 343 & 344 (1) of DMC Act, 1957,
unauthorized construction of ground floor. Hence, a show cause
notice vide No. 17478 dated 07.08.2026 U/s 343 & 344 of DMC
Act, 1957 was issued to Sh. Shahzad Malik/owner/builder
(Defendant No. 1) of the suit property and reply of the same is
awaited. Further course of action will be taken as per provisions
of DMC Act. Since the MCD has already booked the
unauthorized construction at the suit property u/s 343 & 344 of
the DMC Act and a show cause notice has also been issued to
the owner/occupier. In these circumstances, I am of the
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considered opinion that the plaintiff has established a prima-facie
case in his favour. Since, the present suit pertains to immovable
property, so plaintiff will suffer irreparable loss and injury which
cannot be compensated in terms of money, if the present
application is not allowed. Accordingly, balance of convenience
also tilts in favour of plaintiff and against the defendant. In view
of above, the application u/o 39 Rules 1 & 2 CPC filed by
plaintiff is allowed and the defendant no. 1 is hereby restrained
from carrying any sort of unauthorized construction over the suit
property bearing no. 162, Gali No. 2, Khasra No. 342, near Anar
Masjid, Old Mustafabad, Delhi-110094 measuring about 67 sq.
yds. Nothing stated herein above shall tantamount to be my
expression on merits of the case.
Application disposed off accordingly.
AJAY KUMAR MALIK
JSCC/ASCJ/G.JUDGE (N/E)
03.09.2026
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