Avtar Narain Behl vs Municipal Corporation Of Delhi & ...
2010 Latest Caselaw 2719 Del

                                                     UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                           FAO No.209/2010


                                    Date of Decision: May 21, 2010


       AVTAR NARAIN BEHL                 ..... Appellant
                     Through Mr. Sanjeev Mahajan, Advocate

                  versus


       MUNICIPAL CORPORATION OF DELHI & ANR
                                   ..... Respondents
                    through None

       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 directed against the order of Additional

District Judge, Shri Sunil Rana dated January 28, 2010 dismissing the

application of the appellant under Order 39 Rules 1 & 2 of the Code of

Civil Procedure (hereinafter referred to as the „Code‟). The main suit,

in which the application in question was filed and which is still pending

before the trial Court, the appellant/plaintiff has amongst other reliefs

prayed for a direction to respondent No.1 to demolish unauthorized

shops in the suit property bearing No.D-60, Kirti Nagar, New Delhi

which is alleged to have been raised by respondent No.2 without

sanctioned plan. This very relief was also claimed in the application

under Order 39 Rules 1 & 2 of the Code.

It is alleged by the appellant that because of the unauthorized

construction having been raised by respondent No.2, he who initially

had a separate entrance to his portion of the suit property is now using

the entrance which is exclusively meant for the appellant by describing

the same as "common passage" for the use of both of them.

The trial Court in the impugned order has held that the appellant

failed to make out a prima-facie case in his favour and was unable to

bring his case within the ingredients of Order 39 Rules 1 & 2 of the

Code. Hence, as noticed at the outset, the relief claimed by way of an

interim measure was declined.

The Municipal Corporation of Delhi who is respondent No.1 herein

in response to the summons of the suit had filed written statement

before the trial Court and therein has not disputed that the

construction raised by respondent No.2 is unauthorized but has stated

that under the new Master Plan - 2021, if a construction is 10 years

old, it can be compounded. The learned counsel for the appellant

before me has disputed the claim of respondent No.1/Municipal

Corporation of Delhi that the construction raised by respondent No.2 is

liable to be compounded or that the construction is 10 years old.

Having heard the learned counsels for the parties, I feel that the

question whether the construction is 10 years old and, therefore, is

liable to be compounded, is a matter of trial and may require evidence.

The trial Court, therefore, was not wrong in holding that no relief

sought by the appellant by way of interim measure could be granted.

In view of the above, I find no merit in the appeal. The same is

dismissed. However, the trial Court is directed to dispose of the suit

as expeditiously as possible, preferably within one year from now. The

Municipal Corporation of Delhi is also directed to place on the record of

the trial Court the report of the inspection carried out by it with regard

to the shops in question.

REKHA SHARMA, J.

MAY 21, 2010 ka