Kamal Ghansala & Anr vs Amit Kumar & Ors
2015 Latest Caselaw 1433 Del

$~20.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 1215/2013 and I.A. 10822/2013, 12516/2013
      KAMAL GHANSALA & ANR                     ..... Plaintiffs
                   Through: Mr. Tarique Sidduqui, Advocate with
                   Ms. Rakhshan Ahmed, Advocate

                        versus


      AMIT KUMAR & ORS                         ..... Defendants
                    Through: Ms. Neeharika Aggarwal, Advocate
                    for D-1 and D-2.

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI

                        ORDER

% 19.02.2015

1. The present suit has been instituted by the plaintiffs praying

inter alia for passing a decree of permanent and mandatory injunction

against the defendants No.1 and 2 in respect of the construction being

undertaken by them above the second floor of premises No.B-6/11,

Safdarjung Enclave, New Delhi. Further, the plaintiffs have sought

damages against the defendants No.1 and 2 for allegedly raising illegal

construction on top of the second floor.

2. It is an undisputed position that the plaintiffs are the owners in

occupation of the basement, ground floor and first floor of the suit

premises and the defendants No.1 and 2 are the owners in occupation

of the second floor and terrace above the second floor excluding the

servant quarters and the toilet built on the terrace. As per the

averments made in the plaint, the cause of action for instituting the

present suit arose when the defendants No.1 & 2 had allegedly started

raising construction of a dwelling unit on the terrace of the second

floor without obtaining sanctioned building plans from the defendant

No.3/SDMC.

3. It is stated by the counsel for the defendants No.1 and 2 that

the sanctioned building plans were obtained and were valid till

September, 2013 but thereafter, they have not got them revalidated

due to the pendency of the present proceedings. She states that as

the only relief sought by the plaintiffs herein is to restrain the

defendants No.1 and 2 from raising any construction above the second

floor of the suit premises except in accordance with law, she is willing

to make a statement that the defendants No.1 and 2 shall not raise

any construction on the terrace of the second floor of the suit premises

without obtaining sanctioned building plans from the defendant

No.3/SDMC.

4. Counsel for the defendants No.1 and 2 also draws the attention

of the Court to the order dated 12.02.2014, wherein the statement of

the counsel for the defendants No.1 and 2 was recorded to the effect

that the present suit is not maintainable in view of the provisions of

Section 347-B read with Section 347-E of the Delhi Municipal

Corporation Act, 1957.

5. Learned counsel for the plaintiffs states that in view of the

submission made by the counsel for the defendants No.1 and 2 as

noted above, the present suit may be disposed of, while binding the

said defendants to the statement made on their behalf. He further

states that his clients reserve their right to approach the defendant

No.3/SDMC for seeking demolition of the partial construction

undertaken by the defendants No.1 and 2 on the terrace of the suit

premises in accordance with law.

6. Leave, as prayed for, is granted. The right of the plaintiffs to

approach the defendant No.3/SDMC for passing appropriate orders in

accordance with law, is reserved.

7. The suit is disposed of alongwith the pending applications, while

binding the defendants No.1 & 2 to the statement made on their

behalf and recorded above.

8. Parties are left to bear their own cost.

HIMA KOHLI, J FEBRUARY 19, 2015 rkb