Suit No. 27193/16                                     Page 1 of 19

         IN THE COURT OF DR. JAGMINDER SINGH
       JSCC-cum-ADDITIONAL SENIOR CIVIL JUDGE
     cum-GUARDIAN JUDGE, DWARKA COURTS, DELHI

Suit No. : 27193/16

In the matter of :
1)    Smt. Vimla @ Nikky,
      W/o Sh. Kailash,
      R/o C-805, Shiv Vihar,
      J.J. Colony, Hastsal, New Delhi.
                                            ........Plaintif

                              Versus
1)    Sh. Kuldeep,
      S/o Sh. Satyanarayan,
      R/o C-807, Shiv Vihar,
      J.J. Colony, Hastsal, New Delhi.

2)    Sh. Naresh,
      S/o Sh. Kalu Ram,
      R/o C-808, Shiv Vihar,
      J.J. Colony, Hastsal, New Delhi.

3)    Sh. Reenu,
      S/o Sh. Khachedu,
      R/o C-810, Shiv Vihar,
      J.J. Colony, Hastsal, New Delhi.

4)    The Dy. Municipal Commissioner
      West Delhi,
      Tagore Garden, Rajouri Garden,
      New Delhi-110027.

5)    The Sub-Divisional Magistrate
      (Patel Nagar),
      Old Middle School Building, Rampura, Delhi.

Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.
 Suit No. 27193/16                                    Page 2 of 19

6)     Delhi Pollution Control Committee,
       ISBT Building, Kashmere Gate, Delhi.

                                            ......Defendants

Date of institution of the suit             :   05.08.2016
Final Arguments Heard on                    :   06.07.2019
Date of Judgment                            :   06.07.2019
Final Decision                              :   DISMISSED

     SUIT FOR PERMANENT & MANDATORY INJUNCTION

JUDGMENT :-
1.

This is a suit for permanent & mandatory injunction.

2. Brief facts necessary for the disposal of the present suit as mentioned in the plaint are that plaintiff is residing on above mentioned address since past many years and defendants no. 1 to 3 are residing just adjacent to the residence of the plaintiff and defendants no. 1 to 3 are doing an industrial activities absolutely in the residential area i.e. properties no. C-807, C-808 & C-810, J.J. Colony, Shiv Vihar, Uttam Nagar, New Delhi without obtaining any permission or license from authorities concerned i.e. defendants no. 4 to 6 or any other competent authority. Plaintiff's husband has Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

given a written complaint to SDM, West and SHO, PS Uttam Nagar in respect of industrial activities being carried out by the defendants no.1 to 3 on 06.12.2010 but no concrete action was taken by the defendant no.5 and SHO PS Uttam Nagar. Defendants no. 1 to 3 are doing the work of making hammers, chisels and for that purpose, they have also installed heavey machines in their premises and also used to burn heavy quantity of coals and also used to heavy force on hot iron rods and thereby they create so much pollution i.e. noise as well as air pollution in the locality. Thereafter, plaintiff's husband filed a civil suit against the defendants no. 1 to 5. Hon'ble Court had allowed the application under Order 39 Rules 1 & 2 CPC and thereby restrained the defendants no. 1 to 3 from doing any illegal and unlawful industrial activities from their premises. Later on, the husband of plaintiff and his counsel could not look after properly the case. Therefore, the civil suit filed by plaintiff's husband has been dismissed in default and the restoration application has also been dismissed by by the Court vide Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

order dated 06.04.2016. After dismissal of the suit, defendants no. 1 to 3 have again started illegal & unlawful industrial activities form their abovesaid premises. Plaintiff is in the clutches of various types of elements and she is not having good health and on account of the illegal and unlawful industrial activities carried out by the defendants no. 1 to 3, the health of the plaintiff is also deteriorated day by day. Plaintiff has also personally requested to defendants no. 1 to 3 on various dates i.e. 25.06.2016, 15.07.2016 & 24.07.2016, but defendants no. 1 to 3 clearly refused to stop the illegal industrial work carried out by them. Therefore, plaintiff has filed the present suit. Cause of action to file the present suit firstly arose when defendants no.1 to 3 started running illegal & unlawful industrial activities and it further arose when husband of the plaintiff requested them no to to so but in vein. It further arose on 06.12.2010, when plaintiff's husband made a complaint to the defendant no.5 and SHO, PS Uttam Nagar and when plaintiff's husband filed a civil suit. It further arose when civil suit filed by Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

plaintiff's husband dismissed in default & restoration application also dismissed. It further arose when defendants no. 1 to 3 again started running illegal & unlawful industrial activities and when husband of plaintiff again requested the defendants no. 1 to 3 not to do so but in vein. It further arose on 24.07.2016, when plaintiff requested to defendants no. 1 to 3 no to do illegal & unlawful industrial activities but they clearly refused to do so and the cause of action is still subsisting. Plaintiff had requested to pass a decree against defendants no.1 to 3 restraining them from doing illegal & unlawful industrial activities from their aforesaid premises without obtaining prior permission or valid license from competent authorities and defendants no.4 to 6 may be directed to ensure the removal of heavy machines as well as coal burning plant installed. Plaintiff had further requested that cost of the suit may be awarded in her favour and against the defendants. This Court is having jurisdiction for trial of this suit.

3. On the suit of the plaintiff, summons were issued Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

to the defendants. Defendants no. 1 to 6 were appeared. WS filed on behalf of defendants no. 1 to 3 stating that the plaintiff has not come before the Court with clean hands and the suit is liable to be dismissed; plaintiff has not disclosed true facts before this Court & her husband had filed the false case before Tis Hazari Court with intention to blackmail/extort money from the defendants no. 1 to 3 and again the plaintiff filed this false, frivolous & concocted case before this Court; present suit is liable to be dismissed u/O VII R 11 CPC due to conceal of true facts before this Court. In para wise reply on merit, defendants no. 1 to 3 also denied all the allegations and averments made by plaintiff. WS also filed on behalf of defendant no. 6 stating that the suit of the plaintiff is not maintainable by virtue of Section 41 (h) of The Specific Relief Act; present suit is devoid of any merits and is liable to be dismissed; present suit is an attempt of plaintiff to settle his personal scores with defendant no.1; defendant no. 6 is neither a necessary party nor a property party, hence the suit is not maintainable Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

against defendant no.6; the remedy available to the plaintiff is to file a complaint before Magistrate of the concerned ara only after fulfilling mandatory requirements prescribed under the Air (Prevention and Control of Pollution) Act 1981 and the Environment Protection Act, its Allied Act & Rules and Civil Court lacks jurisdiction by virtue of Section 46 & 22 of the Air Act 1981 and 22 of the Environment Protection Act, 1986 to entertain cases relating to pollution and pollution control; plaintiff has not filed any proof whatsoever of the pollution and against the polluting unit and has made bald allegation of pollution; no cause of action subsists as during inspection no industrial activity of blacksmith was found in operation at disputed premises. In para wise reply on merit, defendant no. 6 also denied all the allegations and averments made by plaintiff. Defendants further stated that the suit of the plaintiff is liable to be dismissed. Thereafter, on the basis of the pleadings, the following issues were framed :-

(i) Whether plaintiff is entitled for decree of Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

permanent injunction in her favour and against defendants no.1 to 3, as prayed for? OPP.

(ii) Whether the plaintiff is entitled for decree of mandatory injunction in her favour and against defendant no.4 to 6, as prayed for? OPP.

(iii) Whether suit of the plaintiff is liable to be dismissed u/O VII R 11 CPC? OPD-1 to 3.

(iv) Whether present suit is not maintainable against defendant no.6? OPD-6.

(v) Relief.

4. Thereafter, the matter was fixed for plaintiff's evidence. But due to continuous non-appearance on behalf of defendants no. 4 & 5, they were proceeded ex-parte vide order dated 27.10.2018. Plaintiff had examined herself as PW1 who tendered her affidavit Ex.PW1/A and relied upon the following documents :-

1) Ex.PW1/1 i.e. the photocopy of agreement to sell & purchase dated 18.10.2004 (OSR).

      2)    Ex.PW1/2 i.e. the original site plan.

    3)    Ex.PW1/3 i.e. photographs of site (Colly) (6 in
numbers).

     4)     Ex.PW1/6 i.e. the photocopy of Aadhar card
(OSR).


Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.
 Suit No. 27193/16                                  Page 9 of 19

5.          Thereafter,    PE    was    closed   vide   separate

statement of plaintiff. Thereafter, matter was fixed for defendant evidence. Defendants no. 3 had examined himself as DW1 and tendered his affidavit Ex.DW1/1 and he had placed on record copy of his Aadhar Card Ex.DW1/2 (OSR). No witness was examined by other defendants in their evidence and accordingly, DE was closed and matter was fixed for final arguments.

6. Final arguments heard. Ld. Counsel for plaintiff argued that the plaintiff is a peace loving person and is resident of C-805, Shiv Vihar, J.J. Colony, Hastsal, New Delhi. The defendants are residing in her neighbourhood. The defendants are running industrial activities by way of doing the work of making hammers etc. and for that purpose, they also used to burn heavy quantity of coals and further they used heavy force on iron rods. In this process, the defendants are creating air as well as noise pollution which is deteriorating the health of the plaintiff and the defendants are also creating nuisance for the residents of the locality. Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

The defendants are having no any permission or license from the concerned authority for running the industrial activity of making the iron instruments. The plaintiff had proved her case with oral & documentary evidence. Therefore, suit of the plaintiff is liable to be decreed in her favour and against the defendants.

7. On the other hand, Ld. Counsel for defendants no. 1 to 3 argued that there is no any industrial activity is in existence at the spot. The defendants were doing their traditional work as they belong to "Lohaar" community. They were doing their work without using any machinery used to industrial activity. The plaintiff is having no locus- standi to file the present suit. The plaintiff himself is neither allottee nor owner of the premises where she is residing as same belongs to J.J. Colony which were allotted to the needy person by the concerned department for their use along with their family members. The plaintiff is residing in that premises in unauthorized manner and therefore, she has not come before the Court with clean hands. Plaintiff has failed Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

to prove her case and suit of the plaintiff is without any merit and therefore, same is liable to be dismissed. Ld. Counsel for defendant no.6 argued that the present suit is regarding dispute between the plaintiff and defendants no. 1 to 3. There is no role of defendant no.6. The cause of action or relief sought by the plaintiff does not come under the purview of defendant no.6 and therefore, the suit against defendant no.6 filed by the plaintiff is liable to be dismissed.

8. I have considered the submissions of both the parties and perused the record. I have also gone through the evidence placed on record by both the parties. First of all issue no. (iii) is taken up for adjudication of the suit. Issue no. (iii) is that Whether suit of the plaintiff is liable to be dismissed u/O VII R 11 CPC? Onus to prove these issue is upon defendants no. 1 to 3. The defendants no. 1 to 3 have not produced any evidence in this regard. However, it is settled law that to decide the question that whether suit is liable to be rejected u/O VII R 11 CPC, Court has to see only the contents of the plaint. In the body of the plaint, plaintiff Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

has alleged that defendants no. 1 to 3 are doing industrial activity in her neighbourhood and because of the pollution created by the defendants, the health of the plaintiff is deteriorating day-by-day. The plaintiff has prima-facie disclosed the cause of action. Court does not find that in view of the statement made in the plaint, the plaint is liable to be rejected u/O VII R 11 CPC. Hence, issue no. (iii) is decided against defendants no. 1 to 3 and in favour of plaintiff.

9. Issue no. (iv) is that Whether present suit is not maintainable against defendant no.6? Onus to prove this issue is upon defendant no.6. Defendant no. 6 is Delhi Pollution Control Committee. The plaintiff in her plaint raised objection upon the alleged pollution created by the defendants no. 1 to 3. In prayer clause, plaintiff is seeking mandatory injunction against defendants no. 4 to 6. No any evidenced led by defendant no.6 to discharge its onus. In view of the material available on record, Court finds that defendant no. 6 is failed to prove this issue through Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

evidence. Therefore, issue no. (iv) is decided against defendant no. 6 and in favour of plaintiff.

10. Issue no. (i) is that Whether plaintiff is entitled for decree of permanent injunction in her favour and against defendants no.1 to 3, as prayed for? Onus to prove this issue is upon plaintiff. During evidence, plaintiff had examined herself as PW1. In her affidavit Ex.PW1/A, she had stated that she is residing at C-805, Shiv Vihar, J.J. Colony, Hastsal, New Delhi since last many years. She has not clarified that in which capacity, she is residing at the given address. She had not placed on record any other evidence regarding her possession/residence at the aforesaid premises like electricity bill, water bill etc. She had filed her Aadhar Card Ex.PW1/6. But same cannot be considered as a conclusive proof that she is in possession and is residing at the address given in Aadhar card.

11. To show the title qua the plot no. C-805 i.e. the address of plaintiff, PW1 has placed on record agreement to sell & purchase dated 18.10.2004 i.e. Ex.PW1/1. According Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

to this document one Sh. Radhey Shyam entered into agreement to sell the aforesaid plot to one Sh. Kailash. This document is also accompanied with other document i.e. General Power of Attorney according to which Sh. Radhey Shyam appointed to Sh. Kailash as General Power of Attorney regarding the aforesaid plot No. C-805. During evidence, plaintiff had placed on record only one page each of General Power of Attorney and Agreement to Sell i.e. Ex.PW1/1. If the proved page of agreement to sell is seen separately from the page of general power of attorney, then it is not clarified in agreement to sell & purchase that regarding which plot it is talking. Further plaintiff had placed on record only part of general power of attorney, therefore, same cannot be considered as a proper evidence without going into the contents of whole of the document.

12. Moreover, these documents are prima-facie seems to be executed in favour of Sh. Kailash. It is admitted fact on behalf of the plaintiff that Sh.Kailash is her husband. It is further admitted on behalf of the plaintiff that this plot Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

was allotted by the concerned authority of Delhi Government under a special scheme for needy persons and the same was not transferrable. Admittedly, the plot no. C- 805, J.J. Colony, was neither allotted to the plaintiff nor to her husband nor to their ancestors. It is not clarified by the plaintiff either in her plaint or in her affidavit that who is the allottee of the aforesaid plot. During cross-examination, it is admitted by PW1 that the Government of India has not allotted the property in her name and it is stated by her that same was purchased by them. She has not filed any document regarding purchase of the property as she had placed on record only document Ex.PW1/1 which are incomplete documents pertaining to only agreement to sell & power of attorney. Therefore, the plaintiff has not shown her clear locus-standi to file the present suit.

13. In the affidavit Ex.PW1/A, it is stated by the plaintiff that if the relief claimed in the plaint is not granted, then the plaintiff will suffer irreparable loss which cannot be compensated in terms of money. In evidence, it is not Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

clarified by the plaintiff that what kind of irreparable loss she will suffer. It is stated by the plaintiff that she is in the clutches of various types of ailments and is not having good health. It is further stated in the affidavit that due to unlawful industrial activities, the health of the plaintiff is deteriorating day-by-day. However, during evidence the plaintiff has not placed on record any document showing that she is suffering from various types of ailments or she is not having good health. She had also not placed on record any document to show prima-facie that because of the alleged industrial activities, her health is deteriorating day- by-day. During cross-examination, it is admitted by PW1 that she had not placed on record any medical document regarding deterioration of her health due to alleged pollution. Therefore, the plaintiff has failed to show any personal grievance/interest in the matter in question. As per Section 41 (j) of the Specific Relief Act, 1963, when the plaintiff has no personal interest in the matter, then the injunction cannot be granted.

Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

14. During evidence, defendant no.3 examined himself as DW1. He stated in his affidavit Ex.DW1/1 that he is doing his ancestral work and he neither use any chemical nor any machine nor any coal nor produced smoke while doing his work. During cross-examination, the plaintiff has put to him a report Ex.DW1/PX filed by Admin Officer, West Zone, according to which during the encroachment removal action, a condemn machine was found fixed in front of H. No. 810, Shiv Vihar, Vikas Puri, New Delhi which has been removed on 04.01.2018. Address of the premises is different as mentioned in the document Ex.DW1/PX and that of the residence of defendant no.3. In the report, there is no mention of J.J. Colony. The report Ex.DW1/PX was not go through by the concerned person who had filed this report. It is also not mention in the report that the said machine was operational or not at the time of its removal. Therefore, it cannot be presumed that the said machine was fixed at the house of defendant no.3 or the same was being used for any industrial purpose or the same was producing any kind Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

of pollution etc. No any other evidence has been produced by the plaintiff. To prove that defendants no. 1 to 3 are doing unlawful industrial activities at their premises i.e. C- 807, C-808 & C-810, J.J. Colony, Shiv Vihar, Uttam Nagar, New Delhi. Therefore, in view of the aforesaid discussion, issue no. (i) is decided against the plaintiff.

15. Issue no. (ii) is that Whether the plaintiff is entitled for decree of mandatory injunction in her favour and against defendant no.4 to 6, as prayed for? Onus to prove this issue is upon plaintiff. In prayer clause (b) of the plaint, plaintiff is seeking mandatory injunction that defendants no. 4 to 6 may be directed to ensure the removal of the heavy machine and coal burning plant installed at C-807, C-808 & C-810, J.J. Colony, Shiv Vihar, Uttam Nagar, New Delhi. As discussed above during adjudication upon issue no. (i), plaintiff has failed to prove the fact that the defendants no. 1 to 3 are having any heavy machine at their premises or running any industrial activity. Plaintiff had also not placed on record any evidence that Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.

defendants no. 1 to 3 at their respective premises i.e. C-807, C-808 & C-810, J.J. Colony, Shiv Vihar, Uttam Nagar, New Delhi, are using any coal burning plant. Therefore, issue no.

(ii) is also decided against the plaintiff.

16. Relief: Present suit of the plaintiff is dismissed.

17. No order as to costs.

18. Decree sheet be prepared accordingly.

19. File be consigned to record room after due compliance.

Announced in the open court                      Digitally signed
on this 06th day of July, 2019       JAGMINDER
                                                 by JAGMINDER
                                                 SINGH
                                     SINGH       Date:
                                                 2019.07.06
                                                 15:42:35 +0530




                                 (DR. JAGMINDER SINGH)
                              JSCC-ASCJ-cum-Guardian Judge,
                                  Dwarka Courts : Delhi

Note: This judgment is having Ninteen pages and each page is bearing my signatures.

(DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Smt. Vimla @ Nikky Vs. Sh. Kuldeep & Anr.