S. Jamiat Singh S/O Late Shri ... vs Municipal Corporation Of Delhi ...
2004 Latest Caselaw 41 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is the Plaintiff in Suit No.66/1998 filed before the learned Additional District Judge, Delhi. The Appellant had filed a suit for permanent injunction for restraining Respondents No.2 to 4, their servants, relatives and associates from raising any unauthorised construction in their portion of the first floor as well as on the second floor of the suit property bearing No.147-148, E Block, Kamla Nagar, Delhi - 110 007. Along with the plaint, the Appellant had filed an application for grant of interim injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure. According to the Appellant, he was in occupation of a portion of the ground floor of the suit premises as a sub-tenant of one Naresh Kumar Jain who had taken the ground floor on lease from Respondent No.2. Respondent No.3 is the son of Respondent No.2 and he has argued this appeal in person. While disposing of the application for grant of interim injunction, by the impugned order dated 6th December 2000, the learned Additional District Judge came to the conclusion that the Appellant had no legal right to pray for an interim injunction in as much as that he had not been able to show his right on that part of the ground floor of the suit property over which he claimed to have possession. In fact, it was held that the possession of the Appellant was yet to be proved and on that basis it wield that the Appellant had not made out any prima facie case for the grant of interim injunction.On the question of balance of convenience, it was held by the learned Additional District Judge that Respondent No.2 had a sanctioned plan in her favor from the Municipal Corporation of Delhi (M.C.D.) and construction could be made in accordance with the sanctioned plan. As such, the balance of convenience was not in favor of the Appellant. It was further held that no irreparable loss or injury was being caused to the Appellant primarily because the Appellant had not been able to make out any primaacie case at least as regards possession of a part of ground floor of the suit property.

2. Learned counsel for the Appellant as well as Respondent No.3 who is appearing on his own behalf and on behalf of Respondent No.2, have taken me through the case papers as well as the records before the learned Additional District Judge. In the written statement filed by the M.C.D. (which appears to be the only disinterested party in the proceedings) it has been mentioned that action has already been initiated in respect of some unauthorized construction in the property in dispute vide File No.380/B/UC/CLZ/95 by issuing a show cause notice dated 13th July, 1995 to Respondent No.2. It is stated that further action will be taken as per law on the basis of the show cause notice. While Respondent No.3 has denied receipt of this notice, learned counsel appearing on behalf of the M.C.D. is unable to inform me what action, if any, has been taken on the basis of the show cause notice. Be that as it may, it does appear, at least at first blush, that there may be some unauthorized constructionin the property in dispute for which Respondents No.2 & 3 are apparently responsible. With regard to the question of possession of the Appellant, it is admitted that there is an eviction petition filed by Respondent No.2 against her tenant Naresh Kumar Jain being Eviction Petition No.225/1996.Naresh Kumar Jain has filed his written statement in the eviction petition in which he has stated that the landlady, that is, Respondent No.2 had authorised him to sublet the premises in his tenancy and that he had handed over possession of the premises to Mohinderjitt Singh alias Manjit Singh who, I am told, happens to be the son of the Appellant. Further in the written statement, it has been stated by Naresh Kumar Jain as follows:-

"The petitioner (that is the Eviction Petitioner) is fully aware of the fact that as to who is in possession of the property. In fact, the possession is with one Shri Jamiat Singh who is doing the business there and the premises had been given by thenswering respondent to the occupier of the building with the consent of the petitioner and the petitioner has consented for the same and the petitioner is a party to the said document, which fact has been admitted by the petitioner in para 14 of the eviction petition."

3. Quite clearly, Naresh Kumar Jain has stated that the Appellant is in possession of a portion of the ground floor which is as claimed by the Appellant. Additionally, in the eviction petition the Appellant had moved an application under Order 1 Rule 10 of the C.P.C. and by an order dated 2nd February, 2000, it was directed by the learned Additional Rent Controller that without prejudice to the pleas of the parties and without reflecting on the merits of the appeal, the application under Order 1 Rule 10 C.P.C. is allowed and Jamiat Singh is also imp leaded as a Respondent. Respondent No.3 has submitted before me that this order was passed on a concession given by his counsel but a perusal of the order dated 2nd February, 2000 does not indicate any concession having been given by the counsel for the Eviction Petitioner, that is his mother (Respondent No.2 herein).Prima facie, it appears from the material on record that the Appellant has been able to establish his possession on a part of the ground floor of the suit premises.

4. In what capacity he is in possession thereof is not an issue before me and that will, I am sure, be decided in the eviction petition filed by Respondent No.3. Suffice it to say that for the time being it is enough that the Appellant is shown to be in possession of a part of the ground floor of the suit premises. The learned Additional Ditrict Judge was, therefore, in error in having concluded that the possession of the Appellant has yet to be proved. I am of the view that since the Appellant is in possession of a part of the ground floor of the suit premises, if there is any construction carried out in respect of the suit premises, which may damage the portion in his occupation, he is certainly entitled to maintain a suit for injuncting such a construction either by the landlady or by anybody else. The locus of the Appellant, therefore, stands established. It appears from the pleadings that have been shown to me that there is an allegation of some unauthorized construction which is why the M.C.D. has issued a show cause notice to Respondents No.2 & 3, as already mentioned above. Consequently, it would be appropriate if Respondents No.2 & 3 is restrained from carrying out any construction in the suit premises without the permission of the M.C.D. so that any unauthorised construction, if carried out, does not damage any portion with the Appellant. Respondent No.2 has contended that the building plan was sanctioned as far back as in 1948 or 1949 and since it is an old construction, it requires repair and that there is no necessity of taking permission from the M.C.D. for carrying out any repair. While this may be so, it certainly cannot be permissible for any one to carry out any construction in the garb of any repair. This is not to say that Respondents No.2 & 3 are carrying out any unauthorised construction in the garb of repair but this is amatter which will require to be looked into by the M.C.D. It is for this reason that Respondents No.2 & 3 cannot be restrained from carrying out construction provided it has the approval of the M.C.D. If the said Respondents merely carry out repairs, rely the M.C.D. can have no objection to the same. But if the said Respondents carry out any unauthorised construction, the M.C.D. will be entitled to look into it and prohibit it. In view of the above, the impugned order dated 6th December 2000 is set aside. Respondents No.2 & 3 are injuncted from carrying out any unauthorized construction on the suit premises bearing No. 147-148, E Block, Kamla Nagar, Delhi. In the event that Respondents No.2 & 3 wish to carry out any construction in the suit premises, they will take the prior permission of the M.C.D. before doing so. Since it has been stated by Respondent No.2 that he has not received the show cause notice dated 13th July, 1995 issued by the M.C.D. intending to take action against the unauthorised construction alleged to have been carried out by Respondents No.2 & 3, the M.C.D. will ensure that a copy of the show cause notice dated 13th July, 1995 is served on Respondents No.2 & 3 immediately.

 5.   No further orders are required to be passed in this appeal and the same stands disposed of.        Issues in this case appear to have been framed by the learned Trial Court in February, 2002. The parties will lead their respective evidence for which they will appear before the learned Trial Court on 11th February, 2004        It is made clear that any observation made by me above is only for the purposes of disposal of the appeal and will not influence the learned Trial Judge.        Trial Court record be sent back immediately, along with a copy of this order, by a special messenger.         
 

 costs.