1 In the Court of [ENTITY], Civil Judge-05, Central District, Tis Hazari Court, Delhi Suit No. 191/14 Unique ID No. 02401C1263342007 Smt. [ENTITY] Wd/O Late Dr. [ENTITY] R/o B-223-A, First & Second Floor Greater Kailash-I New Delhi-110048. Plaintiff Versus 1. Sh. [ENTITY] R/o B-255, First Floor Greater Kailash-I New Delhi-110048. 2. Smt. [ENTITY] W/o Sh. [ENTITY] R/o B-255, First Floor Greater Kailash-I New Delhi-110048. 3. Sh. [ENTITY] S/o Sh. [ENTITY] R/o B-255, First Floor Greater Kailash-I Suit No. 191/14 [ENTITY] Vs. [ENTITY] 2 New Delhi-110048. Defendants Date of Institution: 12.12.2007 Date of Final Decision: 26.09.2015 1. Present suit for permanent and mandatory injunction is filed by the plaintiff against the defendants. 2. It is stated by the plaintiff in her plaint that plaintiff is widow of Dr. [ENTITY] and had inherited first and second floor portion of the property bearing no. B-223-A, Greater Kailash-I, New Delhi-110048. It is stated that Sh. [ENTITY] sold the ground floor of the suit property bearing no. B-223-A, Greater Kailash-I, New Delhi-110048 to one Sh. [ENTITY], however defendant herein had occupied the ground floor of the said property since October, 2003 stating to have purchased the suit property. It is further stated that defendant no. 1 is husband of defendant no. 2 and defendant no. 3 is son of defendant no. 1 and 2. It is further stated that plaintiff's only son has expired in road accident and plaintiff has been staying alone in first and second floor of the said property. It is further stated that defendant have started massive construction work in the ground floor by making some additions and alterations and have also started dismantling the partition walls/ load bearing walls of the said ground floor portion of the property and have also started harassing the plaintiff and her daughter for parking their car on driveway. It is further stated that defendants does not accede the requests made by the plaintiff and plaintiff force to file suit against the defendant being [CASE NUMBER] wherein defendants stated that they would not interfere in car parking of the plaintiff's in the said driveway and said suit was disposed off on the statement given by the defendant. It is further stated that defendants have given oral assurance to the plaintiff that they will not remove any partition wall/load bearing wall illegally. It is further stated that on the oral assurance given by the defendants, Suit No. 191/14 [ENTITY] Vs. [ENTITY] 3 plaintiff had compromised with the defendant and the said suit was disposed off vide order dated 24.09.2005. It is further stated that defendants again started construction work in the suit property and had removed the walls in between the kitchen and the open space and also removed the other walls on the passage/corridor on the ground floor of the property and have also removed the other load bearing walls of the drawing room. It is further stated that defendants have no right to remove any wall in respect of ground floor of the property as because of removal of load bearing walls/partition wall of the ground floor portion, first and second floor portion may fall. It is further stated that because of removal of the said load bearing walls of ground floor portion of the property, several cracks have developed/arisen in the wall of first and second floor of the building and as such defendants has caused immense damag to the property of the plaintiff. It is further stated that defendants had started commercial activity from the suit property w.e.f. 01.01.2008. It is further stated in the plaint that defendants intentionally and deliberately park their vehicle in front of small gate in order to harass the plaintiff from her egress and ingress towards their own portion. By way of present suit plaintiff has sought following reliefs:- a) permanent injunction that defendants be restrained from dismantling/removing any load bearing wall/ partition walls or making any additions or alterations or raising any new construction in the suit property. b) Permanent injunction that defendants be restrained from doing any commercial activities in the suit property. c) Mandatory injunction that defendants be directed to erect partition walls/load bearing walls which the defendants from the suit property have removed. d) Mandatory injunction that defendants be directed to demolish/ remove illegal construction on the rear side portion of the suit property. e) Permanent injunction that defendants be restrained from parking any vehicle in front of small gate. Suit No. 191/14 [ENTITY] Vs. [ENTITY] 4 3. In reply thereof written statement was filed by the defendants wherein it is stated that the present suit is a gross misuse of legal process; that plaintiff has not filed any site plan in support of their case; that suit has not been valued properly for the purpose of court fees and jurisdiction; that present suit is without any cause of action. It is stated by the defendant that defendant no. 2 is the owner of the suit premises and has purchased the same for consideration from its previous owner and the same is well within the knowledge of plaintiff. It is further stated property was an old construction where electricity and sanitation facilities were required to be replaced/removed including the kitchen and bathroom and the answering defendant have carried out only plaster of Paris work, change of electric wire, laying of tiles over the floor and walls and carrying out of false ceiling activities for which no permission of MCD is required. Defendant denied all the other averments as made by the plaintiff in her plaint and prayed for dismissal of the suit. 4. In reply to the written statement, replication was filed by the plaintiff wherein plaintiff denied all the other averments as made by the defendants in their written statement and reiterates those as made by her in plaint. 5. On the basis of pleadings filed by the parties, following issues are made out by the court on 19.01.2012:- i) Whether the plaintiff is entitled for a decree of permanent injunction as prayed? OPP ii) Whether the plaintiff is entitled for a decree of mandatory injunction as prayed? OPP iii) Whether the plaint of plaintiff is liable to be rejected under [SECTION] [ACT] for non-disclosure of cause of action? OPD iv) Relief. Suit No. 191/14 [ENTITY] Vs. [ENTITY] 5 6. Plaintiff in support of her case has examined Ms. [ENTITY] who filed her affidavit in evidence as Ex. PW-1/A and relied upon the documents i.e. General Power of Attorney Ex. PW-1/1, certified copy of application, statement of parties and order dated 24.09.2005 Ex. PW-1/2 (Colly), Site Plan Ex. PW-1/3, copy of Police Complaint dated 08.12.2007 Mark(A), photographs Ex. PW-1/5 (colly). Plaintiff has further examined Sh. [ENTITY] LDC, Record Room, Civil THC, who proved the documents Ex. PW-1/2 (Colly), Sh. [ENTITY], Record Keeper, SDMC, South Zone, Delhi as PW-3, Sh. [ENTITY], Record Keeper, SDMC, Central Zone as PW-4 and Sh. [ENTITY], LDC, Building Head Quarter, SDMC, Civic as PW-5 who brought the status report dated 30.09.2013 which was exhibited as PW-5/A. 7. Defendant in support of his case has filed his affidavit Ex. DW-1/A and relied upon the documents i.e. license issued by MCD Ex. DW-1/1, Report of Local Commissioner dated 28.02.2008 Ex. DW-1/2. 8. I have heard the Ld. Counsel for the parties and perused the case file carefully. Before proceeding with issue wise findings it would be relevant to discuss in here evidentiary value of the GPA holder considering the fact that [ENTITY] (GPA Holder of Plaintiff) deposed on behalf of plaintiff in the present case. EVIDENCE OF General Power of Attorney HOLDER 9. Ms. [ENTITY] deposed on behalf of the plaintiff in the present case on the strength of GPA was executed on 31.08.2012. It is settled principle of law that a GPA Holder cannot give evidence for the plaintiff with regard to those facts which are not within his personal knowledge. For the same, I may gainfully refer to observations made by Hon'ble Apex Court in Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512 Suit No. 191/14 [ENTITY] Vs. [ENTITY] 6 18. We may now summarize for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney- holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or persons residing abroad managing their affairs through their attorney- holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Suit No. 191/14 [ENTITY] Vs. [ENTITY] 7 Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. 10. Ms. [ENTITY] (GPA Holder for the plaintiff) who depose as PW-1 has not stated in her affidavit Ex. PW-1/A as to whether she had personal knowledge about the facts about which she seeks to depose in her evidence. Further Ms. [ENTITY] was also not residing along with plaintiff in the suit property which is clear from the averments made in the plaint filed by the plaintif as well as by Ms. [ENTITY] in her affidavit in evidence. 11. It is further pertinent to state in here that although plaintiff appeared in the court however never subjected herself for cross-examination. Relevant portion of cross- examination of Ms. [ENTITY] is reproduced as under:- " I have not filed any documents in support of my pleadings to the effect that my mother is suffering from various ailments however, my mother came today in the court " 12. Considering the fact that plaintiff appeared in the court on the date of cross examination and further as there is no documents on record to show that the plaintiff was not physically fit to depose in the present case and the plaintiff for the reasons best known to her kept herself away from deposing in support of her case, plaintiff has not let the best evidence to prove her case. It is settled principle of law that in case a party to the suit does not appear in the witness-box in order to depose for its own case, an adverse inference can be drawn under [SECTION] of [ACT] and the same is also held by Hon'ble Apex Court in [PRECEDENT] Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a assumption would arise that the case set up by him is not correct as has been Suit No. 191/14 [ENTITY] Vs. [ENTITY] 8 held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in [PRECEDENT] . This was followed by the Lahore High Court in [PRECEDENT] and the Bombay High Court in [PRECEDENT] . The Madhya Pradesh High Court in [PRECEDENT] also followed the Privy Council decision in [PRECEDENT] . The Allahabad High Court in [PRECEDENT] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in [PRECEDENT] drew a presumption under [SECTION] of the [ACT] against a party who did not enter the witness-box. 13. Considering the law and facts stated above Ms. [ENTITY] (GPA Holder for the plaintiff) could not have deposed as to the facts outside her personal knowledge such evidence being inadmissible, has to be eschewed from consideration. My issue wise findings are as follows: Issue No. 1 1) Whether the plaintiff is entitled for a decree of permanent injunction as prayed? OPP 14. Burden to prove the present issue lies upon the plaintiff. Plaintiff has sought following reliefs: a) That a decree of permanent injunction be passed in her favour and against the defendant, thereby restraining the defendants from dismantling/removing the load bearing walls/ partition walls or making any addition or alteration or raising any new construction in the ground floor portion of the suit property has shown in red colour in the site plan attached. b) That a decree of permanent injunction be passed in favour of the plaintiff and Suit No. 191/14 [ENTITY] Vs. [ENTITY] 9 against the defendant, thereby restraining the defendants from doing any commercial activities in the above said property. c) That a decree of permanent injunction be passed in favour of plaintiff and against the defendants whereby restraining the defendants from parking any vehicle in front of said small gate of the property and also be restrained from causing any hindrance or obstacles in egress and ingress by the plaintiff through the said small gate of the property. 15. For the sake of convenience each reliefs of permanent injunction as sought are dealt with separately. (a) First relief as sought by the plaintiff is that defendants be restrained from dismantling/removing any load bearing walls/partition walls or making any addition or alteration in the suit property. 16. Plaintiff in order to prove her case has placed on record certain complaints, photographs and Site Plan. Further court on the application of defendant appointed a local commissioner who in compliance of the court order visited the suit property on 28.02.2008 and thereafter submitted his report. The plaintiff against the report filed by the Local Commissioner filed objections. It would be relevant deal with said Report of Local Comissioner as well as Site Plans filed by the plaintiff in order to dispose of the present issue. LOCAL COMMISSIONER 17. Ld. Predecessor Court vide its order dated 28.01.2008 has appointed an Executive Engineer for the purpose of local inspection of the ground floor of the premises in order to ascertain whether which all walls on the ground floor of the suit property are Suit No. 191/14 [ENTITY] Vs. [ENTITY] 10 load bearing walls and further to ascertain the situation and dimension of all the walls of the ground floor of the suit property. In compliance of the order of this court an Executive Engineer Sh. [ENTITY], Central Zone, MCD visited the suit property. For the sake of convenience, report of Local Commissioner is being reproduced here under: " This Hon'ble Court vide its order dated 28.01.2008, was pleased to direct the Superintending Engineer, MCD, Central Zone, Lajpat Nagar, Jal Vihar, New Delhi, to appoint Executive Engineer/Chief Engineer for the purpose of local inspection of the ground floor of the property bearing No. 223-A, Greater Kailash I, New Delhi and also directed the parties to contact the Supdt. Engineer, Central Zone on 22.02.2008 at 2:00 PM to fix the date and time with the commissioner, for the purpose of local inspection and to submit the report on following issues:- A) Whether all the walls of the ground floor of the suit property are load bearing walls. B) The situation and dimension of all the walls of the ground floor of the suit property. C) Condition of the walls. In compliance of the subject directions of the Hon'ble Court, S.E/Central Zone vide its order dated 18.02.2008 had appointed the undersigned as Local Commissioner in the subject matter. It is submitted that on 22.02.2008, Shri [ENTITY], attended the office of the undersigned with a copy of the orders of this Hon'ble Court as well as orders issued by the Supdt. Engineer, Central Zone referred above to comply with the orders of the Hon'ble Court. Since, the plaintiff did not attend the office of the S.E./Central Zone for receiving the appointment orders of the Local Commissioner or to fix the date and time of the inspection, the respondent was requested to deliver a copy of
the said orders dated 18.02.2008 to the plaintiff, which was duly received by her on that day itself. Since, no communication whatsoever was received from the plaintiff, the undersigned called up the plaintiff on the landline (011- 29243948) on 22.02.2008 evening itself for fixing the time and date for inspection of the suit property in order to ensure compliance of the orders of the Hon'ble Court. However, during discussion, the plaintiff Ms. [ENTITY] refused to help in fixing the date and time of inspection. She further informed that she will revert back only after discussions with her counsel. Subsequently Suit No. 191/14 [ENTITY] Vs. [ENTITY] a call was received from Mr. [ENTITY], Advocate representing plaintiff and accordingly the complete details were conveyed to him and the inspection was filed for 28.02.2008, 4:00 PM.
In order to comply with the orders of this Hon'ble Court, I visited the suit property i.e. property No. B-223-A, G.K-I, New Delhi, on 28.02.2008 at 4:00 PM where I found Shri. [ENTITY], Advocate on behalf of the plaintiff, Shri [ENTITY], Advocate for defendants and Shri [ENTITY] at the spot.
The site was visually inspected in detail. Apart from this, chiseling, hammering at corner places and at the level of lintel (at one place) was carried out. Photographs were taken and measurements were also noted down for the purpose of preparation of plan of the said property. It is worthwhile to mention here that the plaintiff who was occupying first floor did not allow the undersigned to visit the first floor so as to verify the existence of the load bearing walls at the ground floor. Even on the persuasion by the counsel for the plaintiff Mr. [ENTITY], the plaintiff did not permit the undersigned to visit the first floor.
The report on the above mentioned issued is as under:-
A) From the visual inspection, chiseling, hammering at corner places and at the level of lintel, it can be said that all inside walls of the property at ground floor are not load bearing walls as Column/pillars were noticed at number and the same are shown in the annexed site plan.
B) The details as sought about dimension and situation of the walls on the ground floor are indicated in the site plan annexed.
C) During inspection of the property, that renovation work was in progress at the ground floor (almost in the finishing stage), hence all the walls appear to be in perfect condition without any noticeable damage/cracks.
Photographs taken on record and site plan prepared as per the measurements taken and also as per the factual position at the spot are being filed herewith. Report is submitted accordingly."
18. Plaintiff filed the objections to the said report filed by the Local Commissioner wherein it is stated that LC has observed that there is no pillar in the back side but the said fact has not been mentioned in the report and that report and site plan filed by the Local Commissioner contradicts with each other.
Suit No. 191/14 [ENTITY] Vs. [ENTITY]
19. It is pertinent to state in here that plaintiff never summoned local commissioner for his cross-examination. Perusal of the report filed by Local Commissioner reveals that the plaintiff never contacted LC for fixing the date and time for spot inspection neither allowed Local Commissioner to inspect the first floor of the suit property in order to ascertain load bearing walls. As such in said circumstances simplicitor objections filed by the plaintiff without any evidence are not in itself sufficient to vitiate the report of the Local Commissioner.
However, even if for the sake of arguments report so submitted by the Local Commissioner is completely discarded from the evidence, still burden lies upon the plaintiff to show as to which all walls are load bearing walls which were demolished by the defendants.
20. Plaintiff further in order to prove her case has placed on record four site plans of suit property:
1) Site plan filed with plaint Ex. PW-1/3. 2) Sanctioned site plan 3) Plan file by Local Commissioner. 4) Site plan filed with settlement Deed.
For the sake of convenience evidentially value of each of the site plan on record is dealt with separately:
SITE PLAN FILED BY THE PLAINTIFF EX. PW-1/3
21. The said site plan was not proved by the plaintiff by summoning the draftsman of the said site plan. Further Ms. [ENTITY] exhibited the said site plan in evidence. During the course of cross-examination conducted on 03.11.2012 it is stated by the witness:
Suit No. 191/14 [ENTITY] Vs. [ENTITY] " Ex. PW-1/3 was prepared at the instance of the plaintiff. Ex. PW-1/3 was prepared in the year 2007. We and draftsman together had prepared Ex. PW-1/3. Vol. I entered the premises when there was unbearable noise of demolishing and falling down a plaster and bricks, I four walls of the kitchen and toilets were demolished by the defendant no. 1 and the bricks and plasters were lying down. There was atleast 20 labours were demolishing the walls on the ground floor of B-223a, Greater Kailash, Part-I. The above incident occurred on 10/11 August 2007. Vol. I filed a complaint in the MCD and I lodged a complaint in the police station visited the premises. We suffered unbearable torture noise for air pollution for months together at the hands of the defendants for which I suffered paralytic attack and my mother suffered heart problems. The draftsman visited the suit premises but the defendants did not allow him to enter in the suit premises. As far as I remember draftsman visited the premises in August or September 2007. the draftsman was thrownout of the premises alongwith me by the defendant and their associates without allowing us to visit the premises or to take the measurements. It is wrong to suggest that the site plan Ex. PW-1/3 was prepared without seeing the premises and only at my instance. The draftsman saw the photocopy of the sanction plan but the measurement mentioned int eh sanction plan was not legible."
Further in the cross-examination conducted on 05.02.2013 it is stated by the witness:
" Q. I put it to you that after seeing the site plan Ex. PW-1/3, you please tell which load bearing wall had been removed by the defendants? Ans: The defendants had removed the walls at point A,B,C and D in the site plan Ex. PW-1/3.
Site plan Ex. PW-1/3 was made at my instance and directions. Vol. As I was the eye witness of the demolition incident. I do not remember the date the month for the preparation of site plan but it was prepared in the year 2007. It was prepared by draftsman whose name I do not remember at present. Q. Whether the draftsman had taken the measurement of the ground floor at the time of preparing the site plan Ex. PW-1/3?
Ans: No. Q. Whether the draftsman who accompanied you at the site, prepared the
site plan after inspection of site or after looking into the sanction plan of the suit property only?
Ans: The draftsman was not allowed to enter into the suit premises and hence he prepared the site plan as per the sanction plan only.
I never made any complaint to any authority regarding the non entry of the draftsman into the suit property."
Suit No. 191/14 [ENTITY] Vs. [ENTITY]
22. It is further pertinent to state in here that as per the relief A sought by the plaintiff in her suit she is seeking that defendants be restrained from dismantling the load bearing walls etc. as shown in red colour in the site plan attached. It is pertinent to state in here an application under [SECTION] [ACT] was moved by the plaintiff wherein she seek to amend the prayer Clause 'A' by substituting the word "red colour" with the word "green colour" and the same was allowed by the court vide its order dated 11.01.2008. The perusal of Ex. PW-1/3 shows that the plaintiff has outlined the complete suit property with "green colour" and no load bearing walls as alleged are shown in "green colour".
23. Considering the fact that to prove the said site plan the draftsman of the same was not summoned and further as per the witness itself she and the draftsman were not allowed to enter into the suit property. The said site plan was Ex. PW-1/3 cannot be read in evidence.
SANCTIONED SITE PLAN
24. Plaintiff filed an application under [SECTION] [ACT] seeking to place on record alleged sanction plan. Said application was dismissed by Ld. Predecessor Court vide its order dated 15.01.2003 and same was challenged by the plaintiff before Hon'ble High Court of Delhi. Hon'ble High Court of Delhi vide its order dated 30.07.2013 allowed the plaintiff to place on record said sanction plan subject to payment of cost of Rs. 15,000/-. Hon'ble High Court of Delhi has also stated in its order dated 30.07.2013 that said document has to be proved in accordance with law. Plaintiff on 06.08.2013 paid said cost. Plaintiff in order to prove the said sanction Suit No. 191/14 [ENTITY] Vs. [ENTITY] plan has summoned Sh. [ENTITY], Record Keeper SDMC, Central Zone, Delhi who appeared as PW-4 and states that summoned record is not available in their office. Further during the course of cross-examination it is stated by the said witness that:
" till date our office has not received the concerned file i.e. the record of sanction plan with structural drawing sanctioned by the MCD in respect of the property no. B-223-A, Greater Kailash-I, New Delhi-48. I am not able to say anything in respect of the concerned record/file as summoned by this court from our office."
25. Plaintiff has further summoned Sh. [ENTITY], LDC, Building Headquarter, SDMC, Civic Center who appeared as PW-5. Said witness filed a report dated 30.092015, Ex. PW-5/A by Executive Engineer (Building) Headquarter wherein it was stated that no building plan file has been found in office in respect of suit property.
As such alleged sanction plan so filed by the plaintiff was never got proved by the plaintiff and cannot be read in evidence.
SITE PLAN FILED BY LC AND SITE PLAN FILED WITH SETTLEMENT DEED
26. Contention so raised by the counsel for the defendant that in settlement that took place between the parties dated 07.11.2003 site plan was filed and same is deemed to be admitted by the defendant and that if the same is compared with site plan so filed by local commissioner, it is amply clear several alterations has been made by the defendants on the ground floor of the suit property.
27. It is pertinent to state in here that the plaintiff by itself objected to the report filed by the local commissioner. In the objections it is stated by the plaintiff that:
Suit No. 191/14 [ENTITY] Vs. [ENTITY] " it is further submitted that the Ld. Local Commissioner has also observed that there is not pillar on the back side but the said fact has not mentioned in the report but it has been stated that all the inside walls are not load bearing walls. In fact, said report and site plan filed by the Ld. Local Commissioner contradict with each other and as such the same are not correct."
28. As discussed above, as plaintiff has himself objected to the report filed by local commissioner, plaintiff cannot be allowed to blow hot and cold at the same time. At one point of time plaintiff objected to the report filed by local commissioner, however on the other hand, plaintiff is himself relying upon the report so filed by the local commissioner.
29. Even if, the contention as made by the plaintiff that there are certain variation in the site plan annexed along with the settlement deed and the site plan filed by the local commissioner are believed to be true, that in itself does not go to show that the defendant has removed load bearing walls from the ground floor of the suit property as none of the site plan ascertain exactly as to which all walls were load bearing walls.
30. Be that as it may, none of the site plan so filed or relied upon by the plaintiff goes to show or prove as what all are load bearing walls, removal of which may result into damage/loss to the plaintiff. Considering the same, the plaintiff is not entitled for relief of injunction that defendants be restrained from dismantling/ removing any load bearing walls or making any addition or alteration in the suit property.
b) Plaintiff has also sought the relief of injunction that defendants be restrained from doing any commercial activities in the above said property.
31. It is stated by defendant during his course of cross-examination that he was Suit No. 191/14 [ENTITY] Vs. [ENTITY] running a shop on the ground floor in the year 2012-13 and that he has closed the same two years before. It is further stated by the defendant that he was running the shop after obtaining the proper license from MCD. Defendant has also filed the said license so obtained by him from the MCD which is Ex-DW-1/1
32. Plaintiff has not placed on record any evidence to show that running of commercial activities in the said area is not allowed or is banned by the appropriate authority. As such the relief so sought by the plaintiff that defendants be restrained from doing any commercial activities from the suit premises cannot be granted.
c) Plaintiff has further sought the injunction that defendants be restrained from parking any vehicle in front of the said small gate of the property.
33. Burden lies upon the plaintiff to show that hinderence has been caused by the defendants by parking their vehicle in from of small gate. Plaintiff in order the prove the said issue has placed on record certain photographs, however the said photographs were never proved by the plaintiff either by placing on record the negatives of the said photographs or certificate under [SECTION] of [ACT]. Plaintiff has further relied upon settlement dated 07.11.2003 whereby defendants had agreed that owners of first and second floor will have right to park their vehicle in the drive way without any interference or hindrance on the part of owner of ground floor.
34. Even if the said photographs are believed to be correct and true there is nothing on record to show that parking of car of the defendants causes hindrance. Further for the reason best known to the plaintiff, no independent witness was examined in this regard. In view of the same, the present relief so sought by the plaintiff cannot be granted.
Suit No. 191/14 [ENTITY] Vs. [ENTITY] Considering the law and facts stated above, present issue is decided against the plaintiff and in favour of defendants.
Issue No. 2 Whether the plaintiff is entitled for a decree of mandatory injunction as prayed? OPP
35. Burden to prove the present issue lies upon the plaintiff. The plaintiff has sought following reliefs in the nature of mandatory injunction:
a) Mandatory injunction that defendants be directed to erect partition walls/ load bearing walls which has been removed by the defendants from the suit property.
b) Mandatory injunction that defendants be directed to demolish/ remove illegal construction on the rear side portion of the suit property.
36. For the sake of convenience each reliefs of mandatory injunction as sought by the plaintiff is dealt with separately.
a) Mandatory injunction that defendants be directed to erect partition walls/ load bearing walls which has been removed by the defendants from the suit property.
37. As discussed above plaintiff has failed to show that defendants have removed any partition walls/ load bearing walls from the suit property and as such the relief of mandatory injunction so sought by the plaintiff cannot be granted.
b) Mandatory injunction that defendants be directed to demolish/ remove illegal construction on the rear side portion of the suit property.
38. Burden lies upon the plaintiff to show that Suit No. 191/14 [ENTITY] Vs. [ENTITY]
i) Construction was raised by the defendants on the rear side portion of the suit property and
ii) That said construction is illegal.
39. As discussed above, plaintiff has miserably failed to prove her site plan Ex. PW- 1/3 filed along with the plaint and the sanctioned site plan. As such it cannot be ascertained as to whether the defendants raised any construction subsequently. Even if, it is believed that the defendants have raised construction on the back portion of the suit property, there is no evidence on record to show that said construction was illegal or unauthorized construction. Further for the reason best known to the plaintiff, MCD was not impleaded as a party in the present suit in order to ascertain as to whether the defendants raised any illegal construction over the suit property. Considering the same, the relief so sought by the plaintiff cannot be granted.
In view of the facts discussed above the present issue is decided in favour of the defendants and against the plaintiff.
Issue No. 3 Whether the plaint of plaintiff is liable to be rejected under [SECTION] [ACT] for non-disclosure of cause of action? OPD
40. Burden to present issue lies upon the defendants. It is settle principle of law that while dealing with the provision under [SECTION] [ACT] facts as averred in the plaint can only be looked into. Perusal of plaint discloses cause of action against the defendants. In view of the same present issue is decided against the defendant and in favour of plaintiff.
Relief:-
Considering the law and facts discussed in issue no. 1 and 2 suit of plaintiff is Suit No. 191/14 [ENTITY] Vs. [ENTITY] dismissed. Considering the present circumstances of the case there is no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Pronounced in open court on 26.09.2015.
( [ENTITY] ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consists of 20 pages and each page is signed by me.
Suit No. 191/14 [ENTITY] Vs. [ENTITY]