Manoj Kumar Gupta vs Rakesh Kumar Jindal And Ors.
1995 Latest Caselaw 620 Del

JUDGMENT

Devinder Gupta, J.

(1) This is plaintiff's application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure (for short "C.P.C.") seeking directing against the defendants for demolition of the portion, alleged to have been constructed after the passing of the order of status quo.

(2) On 26th August, 1993, the plaintiff filed suit seeking injunction against Rakesh Jindal, defendant No. 1 not to construct the first and second floor of the rear portions of premises House No. W-106, Greater Kailash-1, New Delhi without mutation or probate and without proper sanction of site plan and except with due process of law. Plaintiff also prayed injunction against defendant No. 1 not to break/damage the stair case. No relief was claimed against the second defendant, namely, Vinay Kumar Jindal. Other two defendants imploded in the suit are, Commissioner, and Zonal Engineer, Municipal Corporation of Delhi.

(3) It was alleged that plot bearing No. W-10 was purchased by Om Prakash Gupta, plaintiff's uncle from D.L.F, Housing and Construction Pvt. Ltd., who died in the year 1985. Before his death, Om Prakash Gupta had got a building plan sanctioned from Municipal Corporation of Delhi and also built up a single storey house in the year 1963-64. It was also alleged that Om Prakash Gupta was married to one Smt. Shakuntla Devi but the said property had devolved upon the three nephews of Om Prakash Gupta, namely, plaintiff and defendants 1 and 2 on the basis of a will, alleged to have been executed by 0m Prakash Gupta on 30th September, 1981. As per the Will, Shakuntla Devi has a right to reside in the house without any title in the property. Shakuntla Devi was not imploded initially as party. Along with the suit the plaintiff filed an application (IA.7593/93) for temporary injunction restraining defendant No. 1 not to carry on construction activity without,proper sanctioned plan.

(4) On 30th August, 1993, while issuing notice on the application. Court directed status quo to be maintained in order to ascertain the state of construction a local Commissioner was also appointed on the same day.

(5) On 18th May, 1994, the plaintiff moved an application (I.A.4792/94) under Order 1 Rule 10 Civil Procedure Code . for impleading Smt. Shakuntla Devi as defendant No. 5 in the suit. He also sought directions against her not to raise any additional construction in the property. On 20th May, 1994, notice of this application was directed to be issued to Smt. Shakuntla Devi for 20th September, 1994. It was also directed that status quo order regarding construction of the suit property shall continue to operate. On 4th July, 1994,when the case was taken up again notice was again directed to be issued to Smt. Shakuntla Devi for 24th August, 1994 and in view of the order passed on 20th May, 1994, it was directed that Shakuntla Devi shall also stand restrained from raising any construction in the suit property until further orders. It is not in dispute that Shakuntla Devi was added as a party by ' virtue of the order passed on 13th September, 1994. In the aforementioned background, plaintiff has moved this application alleging that after the passing of the two orders of status quo aforementioned, namely, on 30th August, 1993 and 20th May, 1994, defendants 1 and 2, in collusion with Shakuntla Devi on 1st July, 1994 carried out considerable construction in addition to the construction which had been carried out prior to institution of the suit from 18th August, 1993 onwards. In the application it is alleged that the construction carried out from 1st July, 1994 onwards, being in contravention of the Court's order is liable to be demolished and defendants are liable to be punished in accordance with law.

(6) Defendant No. 2 filed his reply and stated that he had or has nothing to do with the construction, if any, carried out in the disputed property. He also pointed out that no relief has been claimed against him in the suit. He has in fact supported the will and alleged that he is in peaceful enjoyment of the property which has been bequeathed to him by late Shri Om Prakash Gupta.

(7) Defendant No. 3 (Shakuntla Devi) also filed a separate reply in which she has specifically refuted the plaintiff's claim and had also challenged the legality and validity of the will. She has claimed that on the death of her husband, which took place on 28th January, 1985, she has inherited the entire suit property as an absolute owner. Plaintiff has no right, title or interest in any part of the suit property. It has also been alleged that construction of the first floor was carried out by her in the year 1987 and no objection was raised at that stage by the plaintiff. The construction on the second floor was commenced by her in 1993, which was objected to by the plaintiff. She had neither any knowledge of the order of injunction, alleged to have been passed on 30th August, 1993, nor she was imploded as a party defendant to the suit. She also claimed that the order passed on 20th May, 1994 was also not served upon her. The order passed on 4th July, 1994 was served upon her only on 18th July, 1994. She has claimed that the entire construction has been carried out by her prior to the receipt of the order of injunction in the first week of July, 1994. She has utmost regard to the orders of the Court and there has been no violation of the Court's order. No construction was carried out after 1st week of July, 1994.

(8) I have heard learned Counsel for the parties, who have taken me through the entire record.

(9) It is not disputed that Smt. Shakuntla Devi was not added as a party initially, therefore, she was not served with Court's order dated 30th August, 1993 and 20th May, 1994. It is also not in dispute that the order passed on 4th July, 1994 was also not served personally on Shakuntla Devi but was served upon one Raj Kumar. The order was served upon Shakuntla Devi only on 18th July, 1994 as per the report on the summons and notice on record. As per the earlier report dated 12th July, 1994, notice was served upon one Raj Kumar and not on Shakuntla Devi. There is nothing on record to suggest that construction has been carried out by defendants 1 and 2. Smt. Shakuntla Devi has admitted that the entire construction has been carried out by her in the first week of July, 1994 in assertion of her rights as an owner. It is not shown on record that any construction was carried out after 18th July, 1994, when admittedly notice was served upon Shakuntla Devi. There is no material on record to suggest that Smt. Shakuntla Devi has in any manner willfully disobeyed the orders passed by the Court on three occasions.

(10) In view of the above, the prayer made by the plaintiff for demolition cannot be allowed and the application deserves to be dismissed, which is hereby dismissed. It is, however, made clear that observations made herein will not affect the fair trial of the suit on merits. No costs. C.C.P.104/94

(11) In view of the dismissal of the application (I.A.724/94) holding that orders passed on 30th August, 1993 and 20th May, 1994 were not served upon Smt. Shakuntla Devi and that she had no knowledge thereof and there is no question of any willful disobedience on her part for the construction carried out by her in the disputed property. The notice is hereby discharged and the application stands disposed of. S. 3957/93 List for framing of issues on 17th August, 1995.