IN THE COURT OF SH. AMIT KUMAR, JSCC/ASCJ/GJ(NW), ROHINI COURTS, DELHI

S­137/08
                                        Virender Aggarwal
                                               Vs. 
                                         Sagheer Ahmed

                                               ORDER

1. Vide this order, I will dispose of the application filed u/o XII rule 6 CPC by the plaintiff and the brief facts necessary for its disposal are that the present suit was instituted by the plaintiff/landlord on the averments that the defendant No.1 is his tenant of a shop in the property No.364, Hansa Puri Road, Tri Nagar, Delhi - 110035 whereas the defendant No.2 is sub­tenant and they are storing liquid and non­liquid chemicals in this premises without a license and further they are also running a factory for sharpening scissors through stone grinders which is also not permissible and are causing air and noise pollution which makes it impossible for the plaintiff to live in the premises and as such the defendants No.1 & 2 should be restrained from running their factory or from storing liquid and non­liquid gases and further the defendant No.3/MCD should be directed to close this factory and the defendant No.5/DPCC should be directed to take appropriate action against the defendants No.1 & 2. Similar was the prayer made against the defendant No.4/DDA.

2. In the written statement filed by the defendant No.1 & 2, it was stated that the suit is not maintainable being without any cause of action and further, the defendant No.2 is real brother of the defendant No.1 and is not a sub­tenant as alleged and the defendant No.1 is only sharpening scissors which come for repair and is not using any liquid or non­liquid chemicals as alleged and further, the plaintiff himself is doing hazardous business in the premises and on equity, he is not entitled for any relief of injunction. It was also stated that the defendant is not running any industry/factory as alleged nor is creating any pollution as alleged and the suit is liable to be rejected. In the written statement filed by the defendant No.3/MCD, it was stated that the suit is not maintainable against the MCD being a dispute between the landlord and tenant and further, on inspection, MCD found running two units in this property without any municipal license and therefore, defendant No.1 and another Mr. Shagun Welding Works were challaned as per DMC Act. In the written statement filed by the DDA, it was stated that the show cause notice has been issued to defendant No.1 u/s 14 read with section 29 of the DDA Act for contravention of the land used and the suit against DDA is not maintainable. In the reply filed by DPCC, it was stated that the suit is not maintainable against the DPCC, being barred section 43 of the Air (Prevention and Control of Pollution) Act and should be rejected and further the Hon'ble Supreme Court of India in the case titled as "M.C. Mehta Vs. Union of India" has passed specific directions on 07.05.04 and Department of Industries has been requested to take necessary action against the industrial units running in violation of the order of the Hon'ble Supreme Court of India.

3. In the application under consideration, it has been stated by the plaintiff that the defendants No.1 & 2 admittedly are not having any license as required u/s 416,417 of the DMC Act as in their written statement, they have not specifically denied para No.2 of the plaint and further, defendants No.3, 4 & 5 have admitted in their written statement that the the defendant No.1 has already challaned for running a factory without proper license in residential area and as such, the suit should be decreed u/o XII rule 6 CPC.

4. In reply to it, it has been stated by the defendants No.1 & 2 that there is no admission as alleged by the plaintiff in the written statement filed by the defendants No.1 & 2 and further, the concerned SDM had conducted an inquiry u/s 133 of the Code of Criminal Procedure on the complaint made by the plaintiff against the defendants No.1 & 2 and has dismissed the compliant on the grounds that the dispute is between the landlord and tenant and the complainant i.e. the plaintiff herein has a vested interested to get the premises vacated and the business run by the respondent i.e. the defendant No.1 herein is only a household industry and in view of this finding of the concerned SDM, the application should be rejected. It has also been argued that even if it is considered only for the sake of arguments that the defendants No.3, 4 & 5 have admitted that the defendant No.1 is running an industry in a non­ conforming area, the suit cannot be decreed against the defendant No.1 on the admission of the defendants No.3, 4 & 5.

5. I have heard the submissions and have perused the record. It is settled proposition of law that the suit can be decreed on admissions made expressly or impliedly against the answering defendant, but certainly it is not the law of land that the suit can be decreed against another defendant on admission made by some other defendant. For instance, a suit for recovery cannot be decreed against guarantor on the admission made by the principal debtor or vice­versa and can be decreed only against the defendant who admits the liability to pay the suit amount. In the case before me, the plaintiff has sought decreeing of the suit i.e. closure of the business run by the defendant No.1 on the alleged admissions of the defendants No.3, 4 & 5. It is also argued by the defendants No.1 & 2 that the defendants No.3, 4 & 5 are acting in connivance with the plaintiff and in view of that submission, the suit otherwise also cannot be decreed once the defendant No.1 alleges connivance with the plaintiff and the defendants No.3, 4 & 5. Otherwise also, the defendant No.1 has placed on record the list of roads which has now been permitted as mixed land use as per MPD 2021 wherein Hansa Puri road where the suit property is situated is mentioned. Further, as per order of the concerned SDM, the dispute prima facie appears to be between the landlord and tenant where the landlord/plaintiff wants to get the premises vacated by any mode. Further, a perusal of the written statement filed by the defendant No.5 shows that the Hon'ble Supreme Court of India has directed reallocation of industrial units that have come up in residential/non­residential area on or after 01.08.90 and as per admitted facts and the documents placed on record, the defendant No.1 is running his shop since 1984 and also had valid license from Factory Licensing Department of the defendant No.3/MCD. Further, as per the defendant No.1, he has already paid conversion charges with the defendant No.3/MCD alongwith an application for renewal of license which is still pending under consideration.

6. Another important fact which cannot be ignored and also smacks connivance between the plaintiff and the defendants No.3 & 4 is the status report filed by the defendant No.3/MCD which says that the defendant No.1 is running a machine of a power load of 4 HP whereas the NDPL bills placed on record by the defendant No.1 shows that bi­monthly consumption of his shop is around 350 units which means that he is only consuming about 175 units per month which is highly inproportionate to the 4 HP motor alleged to be installed there by MCD in its status report.

7. In view of the aforesaid and considering the fact that there is no admission as alleged in the written statement filed by the defendants No.1 & 2, the suit cannot be decreed against them. The application, therefore, is dismissed.

Announced in the open court                                            (AMIT KUMAR)
on 21.05.2009                                                       JSCC/ASCJ/GJ(NW)
                                                                 ROOM NO.217, ROHINI
                                                                       COURTS, DELHI