Jathedar Rachpal Singh vs Kirpalchand And Ors.
1997 Latest Caselaw 190 Del

JUDGMENT

Devinder Gupta, J.

(1) His appeal by defendant No. 3- appellant is against an order passed on 11.10.1996 by learned Single Judge of this Court directing the Commissioner, Municipal Corporation of Delhi that in case defendants, including third defendant, on or before 1.11.1996 are able to produce occupancy certificate, their possession be not disturbed, failing which to seal the premises. The Commissioner, Municipal Corporation of Delhi was called upon to file his report of compliance by 5.11.1996.

(2) The facts in brief are that plaintiffs-respondents 1 to 4 on 12.1.1996 filed a suit impleading respondents 5 & 6 as defendants 1 & 2 in the suit and the appellant as defendant No. 3 praying the following reliefs :

"(I)A decree of possession in favour of the plaintiffs and against defendant No. 3 directing the defendant No. 3 to hand over forthwith vacant, peaceful possession to the plaintiffs of all portions of the suit property namely 10, Jamuna Road, Civil Lines, Delhi, occupied by him and by others at his instance;

(II)A decree for recovery in favour of the plaintiffs and against defendants No. 1 & 2 of Rs. 9,92,000.00 (Rupees nine lacs ninety-two thousand) together with pendente lite and future interest @ 18% p.a.

(III)A decree of permanent injunction restraining the defendants from in any manner obstructing or interfering with the peaceful use, occupation, enjoyment and possession by the plaintiffs of the suit property No. 10, Jamuna Road, Civil Lines, Delhi, and the free ingress to and egress therefrom of the plaintiffs;

(IV)A decree of permanent injunction in favour of the plaintiffs and against the defendants restraining the defendants from in any manner alienating, dealing with, parting with possession of any part of whole of the suit property or any right, title or interest therein.

(V)Decree of permanent injunction in favour of the plaintiffs and against the defendants No. 1 & 2 and their agents, servants, representatives, or officers, prohibiting them from in any manner entering into or remaining on any part or whole of the suit property.

(VI)Such other relief, order and direction as may be deemed just and necessary in the facts of the case in favour of the plaintiffs."

(3) Along with the suit an application (IA 448/96) was filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking an injunction against the defendants from obstructing or interfering with the plaintiffs' peaceful use, occupation and enjoyment of the possession of the property and from selling, transferring or otherwise parting with possession otherwise than to plaintiffs or encumbering or creating any charge on the property.

(4) On 15.1.1996 summons in the suit and notice in the misc. application were directed to be issued to the defendants. In the meanwhile defendants were res trained from creating third party interest in the suit property and from interfering with plaintiff's ingress and egress to the suit property. On 6.5.1996, appearance was shown on behalf of defendants 1 to 3. Time was allowed to file written statement. Defendants were directed not to sell, alienate or part with the property or create third party interest. A statement was made on behalf of the plaintiff that his client will not interfere with possession of defendant No. 3. Case was adjourned to 11.10.1996. None of the defendants filed written statements or reply to the application. On the adjourned date the Court proceeded to pass the impugned order, relying upon an order passed on 10.3.1986 in Cw 2354/83. Operative part of the order reads : ".....From the bare reading of above said section it is clear that no person can occupy a building unless permission has been granted by the Commissioner in this behalf in accordance with the bye-laws made under the Act. When asked as to whether completion certificate has been issued by the concerned authority, Mr. Garg stated that he was not aware. In the plaint it is specifically pleaded that the Commissioner has not granted any permission to occupy the building. In case the claim of the third defendant that the written statement is ready is to be believed then Mr. Garg should have been aware of the fact whether or not the Commissioner, M.C.D., had granted permission to occupy the building. Before any person occupies the building it is his duty to ascertain as to whether or not the concerned authority had granted the requisite permission under Section 346 of the Act. Learned Counsel for the third defendant submits that in Delhi this provision is not being complied with and the buildings are being occupied without any occupancy certificate. This is no ground for the defendants for not complying with the statute. The statutes are meant to be complied with and not to be disregarded and flouted. It is also the duty of the M.C.D. to ensure that the provisions of law are complied with. Having regard to the provisions of Section 346 of the Act and also keeping in view the order of the Division Bench dated March 10, 1986 it is directed that in case the defendants including the third defendant are able to produce the occupancy certificate before the Commissioner, M.C.D., on or before November 1, 1996, then their possession be not disturbed. But in case they fail to produce the same before the above said date, the Commissioner, M.C.D., will be duty bound to seal the premises. The Commissioner, M.C.D., will file a report of compliance on November 5, 1996. List the matter on November 5, 1996. This order be communicated to the Commissioner, M.C.D.. for compliance. A copy of this order be given Dasti to learned Counsel for the parties."

(5) Feeling aggrieved against the last part of the order, defendant No. 3 has preferred this appeal. On 31.10.1996, when the appeal was taken up, it was directed that effect be not given to the impugned order to the extent to which it directs the sealing of the premises in occupation of defendant No. 3-appellant by the Commissioner, M.C.D. The said interim order has continued thereafter.

(6) We have heard learned Counsel for the parties and been taken through the entire record.

(7) It is not disputed before us that the appellant was not a party to writ petition No. 2354/83. .

(8) In case the plaintiff in the main suit claimed only a decree for possession against defendant No. 3 alleging that defendants 1 & 2 had unauthorisedly let defendant No. 3 occupy a portion of the ground floor and had sought only a decree for injunction against defendant No. 3 not to transfer, alienate or encumber the property, besides a decree for possession; passing of an order beyond the relief prayed for by the plaintiff in the suit or in the application, directing the property to be sealed, pursuant to some directions in a civil writ petition to which the appellant was not a party, renders the order qua the appellant illegal and liable to beset aside.

(9) Under the agreement dated 3.4.1991 between the plaintiff and defendant No. 1, the latter agreed to develop the property by raising construction thereon, namely, residential flats. On completion of construction, the plaintiffs were to be entitled to 40% built up area and defendant No. 1 to 60% area. Defendant No. 3 is in occupation of only a fraction of the ground floor, which has been specified by the plaintiff in the plan attached to the plaint. Question that Whether the plaintiff would or would not be entitled to get possession of the portion of the property in occupation of defendant No. 3 is yet to be gone into. Municipal authorities are,not parties to the suit. No relief is sought in the suit for sealing of the property. Rather the relief prayed for in the suit is that no interference be caused by the defendants in free access to the property by the plaintiffs. In these circumstances, it was not permissible to have passed the impugned order on an application of the plaintiff against defendant No. 3 in which relief sought against defendant No. 3 was only that he should not transfer, alienate or part with possession thereof. Resultantly the impugned order, in so far as it concerns the appellant is liable to be set aside.

(10) Appeal accordingly is allowed. Impugned order in so far as it pertains to that part of the property, which is in occupation of defendant No. 3, directing the Commissioner, Municipal Corporation of Delhi to seal the same is set aside. The appellant, however, during the pendency of the suit shall not transfer, alienate or part with possession or create third party's interest in the property in his occupation. This of course will be subject to the appellant's right to seek variation, if any, after the pleadings in the suit are complete.