Nathu???S Pastry Shop & Anr vs Suhas Chand Gupta & Ors
2010 Latest Caselaw 2039 Del

                                                              UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 FAO No.335-36/2006

                                           Date of Decision: April 19, 2010


       NATHU'S PASTRY SHOP & ANR          ..... Appellants
                    Through Mr. Lalit Gupta, Advocate

                        versus


       SUHAS CHAND GUPTA & ORS           ..... Respondents
                    Through Mr. P.K.Rawal, Advocate with
                    Mr. Ajay Bahl, Advocate for R-1.
                    Mr. Ashutosh Lohia, Advocate for R-2.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

This appeal has been preferred against the order of Additional

District Judge, Shri Daya Prakash dated August 04, 2006 whereby the

learned Judge on an application under Order 39 Rules 1 & 2 read with

Section 151 of the Code of Civil Procedure filed in a suit for

permanent injunction has restrained the appellants herein from

making any addition, alteration or from raising any illegal

construction or changing the nature of existing construction in

respect of two shops No.12 & 13 and residential quarter No.58, plot

No.4, Block No.205, Bengali Mal Market, Delhi. The learned Judge

has also directed the NDMC who is defendant No.4 in the suit, not to

allow the appellants and not to grant any permission to them to make

any addition, alteration or raise illegal construction or change the

nature of existing construction in the said shops as well as in the

residential quarter till the final disposal of the suit. The learned Judge

has further directed that a copy of the order so passed be sent to the

Chairperson, NDMC for taking action against the persons who have

given false information to the Court and has not taken any action

against unauthorized construction in the suit property.

It is submitted by learned counsel for the appellants that the

suit in which the impugned order has been passed by the trial Court,

has no merit and that the plaint is liable to be rejected, for the reason

that respondent No.1 herein had earlier filed a similar suit and

therein had also prayed for a similar relief by way of an application

under Order 39 Rules 1 & 2 of the Code of Civil Procedure and while

the said application is yet to be disposed of, the suit giving rise to the

present appeal has been filed praying for a relief that the appellants

be restrained from raising unauthorized construction.

Having heard learned counsels for the parties, I am of the view

that assuming, the suit which has given rise to the impugned order is

not maintainable and the plaint is liable to be rejected, the remedy

that lies with the appellants is to file an appropriate application before

the trial Court. In so far as the impugned order is concerned, it

merely restrains the appellants from raising any illegal construction

on the suit property which, in my view, is a fully justified order. No

person, be it a tenant or a landlord, has a right to raise any kind of

illegal construction in any property and if any such construction is

being raised, the authority which in the present case is the NDMC is

duty bound to take action against such person. There is no infirmity

in the order passed by the learned trial Judge. The appeal is

dismissed.

REKHA SHARMA, J.

APRIL 19, 2010 ka