Manvender Babbar vs Laxman Ahuja
2016 Latest Caselaw 2869 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment reserved on : 07.04.2016
                   Judgment delivered on : 19.04.2016
+   CM(M) 874/2015
    MANVENDER BABBAR
                                                         ..... Petitioner
                   Through     Mr. Yash Anand, Mr. Yash Singhal
                               and Mr. David A, Advs.
                   versus
    LAXMAN AHUJA
                                                      ..... Respondent
                   Through     Mr. Amar Khera, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The petitioners are aggrieved by the impugned order dated 08.07.2015

wherein the application filed by them under Order VII Rule 11 of the Code

of Civil Procedure, 1908 (hereinafter referred to as the 'Code') had been

dismissed. The Court was of the view that the averments contained in the

plaint did not make out a case for rejection of the plaint. The petitioners are

aggrieved by this finding.

2 Record shows that the present suit is a suit for declaration, permanent,

mandatory and prohibitory injunction restraining the defendants from raising

any unauthorised construction over the 2nd floor roof-top with a further

prayer that the illegal constructions already raised there be permitted to be

demolished. The three defendants before the Trial Court are parties who are

living on the first and second floor of the property (namely defendants No. 1

& 2). The municipal body i.e. East Delhi Municipal Corporation has been

arrayed as defendant No. 3. The averments in the plaint disclose that the two

plaintiffs are owners and in occupation of the first and the second floors of

the suit property i.e. property bearing No.A-1, Anand Vihar, Delhi. These are

undisputed facts. They have been living there peacefully since the year 2007

and there has been no tension whatsoever in this period of their inhabiting

this property. Defendants No. 1 & 2 in connivance with defendant No. 3

have illegally attempted to raise construction on the third floor; defendant

No. 2 claims herself to be the owner of the suit property; whether defendant

No. 1 is the owner or defendant No. 2 is the owner of that third floor/terrace

right is not clear; be that as it may, the contention of the plaintiffs is that

defendant No. 3 in connivance with defendants No. 1 & 2 has permitted the

illegal constructions in the suit property which is without a valid sanctioned

plan; necessary permissions of the Municipal body have not been obtained;

the rights of the plaintiffs who are owner of the first and second floor gets

affected; on repeated queries from the defendants, they have stated that they

have got the sanctioned plan but they have failed to produce this plan. The

complaints lodged by the plaintiffs before the Police Station have met with

no success. Defendant No. 1 is influential and he has put his locks on the

entrance of the second floor preventing access of the plaintiffs to the third

floor where their water tanks have been fixed and they are unable to check

these water tanks. Suit with a prayer directing defendants No. 1 & 2 to

demolish the illegal constructions already raised upon the terrace floor with a

further prayer that the defendants be restrained from carrying on any further

illegal construction has been made.

3 In the course of the proceedings, the present application under Order

VII Rule 11 of the CPC came to be filed. Contention of the defendants is that

no cause of action has been shown by the plaintiffs. Submission is that the

plaintiffs are trying to blackmail the defendants; attention has been drawn to

a show cause notice dated 21.11.2013 sent to defendants No. 1 & 2 qua the

first and second floors of the aforenoted property. A perusal of this notice

shows that this show cause notice issued by the EDMC is for the third floor

as well. By virtue of this notice, the DMC has asked the parties to show

cause as to why their sanctioned plan be not cancelled as they have made

false representations. Submission of the defendants is that there is a

sanctioned plan qua the property but the plaintiffs are not permitting the

defendants for ulterior purpose to carry out this construction. The suit in fact

discloses no cause of action. It is liable to be dismissed. Attention has also

been drawn to a Notification dated 05.12.2006 issued by the MCD (pursuant

to a judgment of a Bench of this Court) that wherever the property is

freehold, each individual owner is an owner in his own right and no

permission is required from other co-owners for any construction.

4      Arguments have been heard. Record has been perused.


5      The factual matrix has been noted afore. In this pending suit filed by

the plaintiffs, they had also filed an application seeking status quo of the suit

property which had been allowed on 22.04.2014. It was thereafter that the

present application under Order VII Rule 11 of the CPC came to be filed by

the defendants i.e. on 28.01.2015. They had sought rejection of the plaint.

6 Needless to reiterate that while dealing with an application under

Order VII Rule 11 of the CPC, it is only the averments which are made in the

plaint which have to be adhered to and not the defence sought to be raised by

the defendant. A detailed order had been passed by the Trial Court. The

Court has correctly noted that the averments as contained in the plaint, right

or wrong, do make out a cause of action and the submission of the

defendants, at this stage, that the plaint is liable to be rejected is an argument

worthy of no merit and the Trial Judge had thus rightly declined the prayer

made in the aforenoted application.

7 This Court endorses this view. The show cause notice sent by the

Department noted supra clearly gives a show cause to the parties including

the defendants as to why the regularization of existing structure be not

withdrawn and as to why this sanctioned plan be not withdrawn as it is based

on a fraud. Thus the sanctioned plan is in jeopardy. The additional

submission of the defendants that the plaintiffs are guilty of concealment of

facts, which make out a case of rejection of the plaint, is again only a

defence which cannot be examined at this stage.

8 The impugned order, in this background, suffers from no infirmity.

Petition is without any merit. Dismissed.

INDERMEET KAUR, J

APRIL 19, 2016 A