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IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE (WEST): DELHI
SUIT NO. 129 / 0 9
Rashid Ahmed .....Plaintiff
VERSUS
Sh. Bashir Ahmed & Ors. ....Defenda n t s
O R D E R
19.0 7 . 2 0 1 0
1. In the suit for perma ne n t injunction and mand a tory injunction, the plaintiff filed an application U/O 39 Rule 1 and 2 read with Section 151 Code of Civil Procedure, 1908 (Hereinafter referred as' the Code') for interim injunction restraining the defenda n t no. 1 from raising any una u t h o rised constr uc tion in order to constr uc t shops on the ground floor of the property no. C 156, China u t Basti, Paharga nj, New Delhi as shown in red colour in the site plan and further, from alienating or creating third party interest therein, till the disposal of the suit.
2. The case set out in the plaint is that the plaintiff and the defenda n t no.1 & 2 are the real brothers. According to the plaintiff, the property no. 156, China u t Basti, Pahar Ganj, New Delhi 55 (Hereinafter referred as "the suit property") was purch a s e d by them 22 years ago. The plaintiff and the defenda n t no. 1 and 2 are co owners of the said property.
3. It is further stated that the defenda n t no.1 is in posses sion of the ground floor of the suit property, the plaintiff is in posses sion of the first floor of the suit property and the defenda n t no.2 is in posses sion of the second floor of the suit property as shown in red, yellow and green colour in the site plan of the suit property.
Suit no. 12 9 / 0 9 . Page 1 /6
4. It is stated that the original title deeds of the suit property are with the defenda n t no.1. It is stated that the defenda n t no.1 is run ni ng a hazardo u s factory at the ground floor of the suit property. It is stated that the defenda n t no.1 is doing mirror - glass polishing and glass frosting thereby causing pollution in the locality. The defenda n t no.1 is using electricity for residential and indus trial purposes without paying for it as the electric meter was removed for non payme nt of electricity charges.
5. It is stated that the market value of the ground floor of the suit property has increased considera bly due to commercial activities in the locality and the defenda n t no.1 is declaring himself as absolute owner of the ground floor of the suit property to the exclusion of the plaintiff and defenda n t no.2. It is stated that the suit property is still undivided and the defenda n t no.1 is not the sole owner of the groun d floor.
6. It is further the case of the plaintiff is that the defenda n t no.1 brought the building material and labour on 14.04.200 4 in order to constr uc t three shops in the front and two shops on the rear side of the ground floor of the suit property. It is stated that the defend a n t no.1 intended to remove the foundation of the suit property. It is stated that the defenda n t no.1 started constr uc tion in the evening of 16.04.20 0 4 despite repeated request s of the plaintiff. Feeling aggrieved by the action of the defenda n t no.1, the plaintiff filed the present suit against the defenda n t s .
7. Defenda n t no.1 and 2 opted not to join the proceedings and therefore, they were proceeded ex parte vide order dated 15.07.200 4.
Suit no. 12 9 / 0 9 . Page 2 /6
8. In its written stateme n t , defenda n t no.3 / DPCC stated that the suit premises was inspected by its officials on 24.05.04. It is stated that the defenda n t no.1 was run ni ng a glass frosting unit on the ground of the suit property. It is stated that the said Unit was causing emissions of dust due to the process of glass frosting and exha u s t fan for the discharge of the emissions was provided therein. It is stated that notice U/ s 31 A of the (Air and Prevention and Control of Pollution) Act, 1981 was issued. It is also stated that the plaintiff was found operating a Unit of Mirror Polishing and Moulding with the help of the LPG burner. It is stated that the Unit was found causing air pollution insignificantly and thereafter, a letter was issued to the plaintiff for the removal of mirror polishing unit from the said premises.
9. In its written stateme n t , the defenda n t no.4 / MCD stated that the suit premises was inspected on 04.06.200 6. It is stated that, the premises is found old and occupied. It is stated that the no una u t h o rised constr uc tion was carried out in the recent past nor any constr uc tion activity was noticed. It is stated that the defenda n t no.1 had been granted licence by the MCD for silvering and polishing of glass with 2HPEM only. It is stated that the said licence has not been renewed since 1992. it is stated that the no polluting indu st ry as alleged by the plaintiff was being run in the suit premises.
10. I have heard the argu me n t s of Sh. Sures h Sharm a , Advocate for the plaintiff, Sh. Shivendra Chopra, Advocate for defenda n t no.3 and Sh. Ashok Khosla, Advocate for defenda n t no.4 / MCD and perused the record.
Suit no. 12 9 / 0 9 . Page 3 /6
11. Ld. Counsel for the plaintiff argued that the suit property was jointly purch a s e d by the plaintiff and the defenda n t no.1 & 2. He argued that the defenda n t no.1 is in posses sion of the ground floor of the suit property. He argued that the defenda n t no.1 started una u t h o rized constr u c tion at the ground floor of the suit property on 16.04.200 4 in order to constr u ct three shops on the front side and two shops on the rear side of the ground floor of the suit premises. He argued that the defenda n t no.1 intend s to sell the said shops to the exclusion of the plaintiff and the defenda n t no.2. He argued that the suit property is undivided and the plaintiff as well as the defenda n t no.2 are also co owners of the ground floor of the suit property. He argued that the defenda n t no.1 was constr uc ti ng shops at the ground floor of the suit premises witho ut obtaining any sanction plan. He argued that the defenda n t no.1 should be restrained from carrying out any una u t h o rised constr uc tion in the suit property and further, alienating and creating third party interest therein. He argued that the plaintiff has a prima facie case as the defenda n t no.1 is carrying out constr uc tion in the suit premises without any sanction plan. He argued that the defenda n t no.1 is intending to remove the founda tion of the building and the plaintiff would suffer irrepara ble loss as the building is old and the plaintiff is residing along with his family members at the first floor of the suit property. He argued that the balance of convenience also lies in favour of the plaintiff and against the defenda n t as the defenda n t has no right to carry out una u t h o rised constr uc tion thereafter, create third party interest in the suit property to the exclusion of the plaintiff and the defenda n t no.2. He prayed for grant for interim injunctio n.
12. Ld. couns el for defenda n t no.4 / M CD argued that the defenda n t no.1 had filed a suit for perma ne n t injunction against the plaintiff bearing suit no.156 / 0 4 . He argued that the said suit was decreed vide judgme nt dated 22.10.08 passed by the Court of Ms. Char u Suit no. 12 9 / 0 9 . Page 4 /6 Aggarwal, Ld. CJ, Delhi. He argued that the defenda n t no.1 herein was restrained by the said Court from raising any constr u ction in the suit premises without permission of the competent aut hority. He argued that the relief prayed by the plaintiff in the prese nt suit had already been granted in the said suit.
13. In order to seek interim injunction, the plaintiff must show existence of prima facie case, irrepar able loss and injury resulting from withholding of interim injunction and balance of convenience in his favour and agains t the defenda n t.
14. It is the case of the the plaintiff that the defenda n t no.1 was raising una u t h o rized constr uc tion on the ground floor of the suit property in order to constr u ct three shops on the front side and the two shops on the rear side at the ground floor of the suit property. The plaintiff has not placed anythi ng on record in support of his case that the defenda n t no.1 was carrying out any constr u c tio n in the suit property for the constr uc tion of shops. The defenda n t no.4 / MCD stated that no una u t h orized constr u c tion was carried out in the suit property nor any constr u ction activity was seen. The defenda n t no. 1 herein has already been restrained by the Court of Ms. Charu Aggarwal, Ld. CJ, Delhi vide decree dated 22.10.08 from raising any constr u ction in the ground floor of the suit property without permis sion of the competent aut hority. The plaintiff has failed to make out a prima facie case.
15. So far as balance of convenience is concerned, the plaintiff has not placed any material on record that the defenda n t no.1 was removing the founda tion of the suit property on 14.04.20 0 4 or 16.04.200 4. The defenda n t no.1 has not constr uc ted any shop as alleged by the plaintiff, his appre he n sio n that the defenda n t no.1 may create third party rights in the said shops is misplaced.
Suit no. 12 9 / 0 9 . Page 5 /6 16. The plaintiff would not suffer irrepara ble loss and injury as the
defenda n t no.1 is not carrying out any constr uc tion in the suit property nor removing the founda tion of the building, as alleged.
17. In view of the aforesaid discus sion, the application U/O 39 Rule 1 & 2 of the Code filed by the plaintiff is dismissed.
(SANJAY SHARMA)
JSCC Cum ASCJ Cum
GUARDIAN JUDGE (West)
Delhi :19.07.20 1 0
Suit no. 12 9 / 0 9 . Page 6 /6