FAO No.209/2010 Page 1 of 3 UNREPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI FAO No.209/2010 Date of Decision: May 21, 2010 AVTAR NARAIN BEHL ..... Appellant Through Mr. Sanjeev Mahajan, Advocate versus MUNICIPAL CORPORATION OF DELHI & ANR ..... Respondents through None CORAM: HON'BLE MISS JUSTICE REKHA SHARMA 1. Whether the reporters of local papers may be allowed to see the judgment? No 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported in the ‘Digest’? No REKHA SHARMA, J. (ORAL) This appeal has been directed against the order of Additional District Judge, Shri Sunil Rana dated January 28, 2010 dismissing the application of the appellant under Order 39 Rules 1 & 2 of the Code of Civil Procedure (hereinafter referred to as the „Code‟). The main suit, in which the application in question was filed and which is still pending before the trial Court, the appellant/plaintiff has amongst other reliefs prayed for a direction to respondent No.1 to demolish unauthorized shops in the suit property bearing No.D-60, Kirti Nagar, New Delhi which is alleged to have been raised by respondent No.2 without FAO No.209/2010 Page 2 of 3 sanctioned plan. This very relief was also claimed in the application under Order 39 Rules 1 & 2 of the Code. It is alleged by the appellant that because of the unauthorized construction having been raised by respondent No.2, he who initially had a separate entrance to his portion of the suit property is now using the entrance which is exclusively meant for the appellant by describing the same as “common passage” for the use of both of them. The trial Court in the impugned order has held that the appellant failed to make out a prima-facie case in his favour and was unable to bring his case within the ingredients of Order 39 Rules 1 & 2 of the Code. Hence, as noticed at the outset, the relief claimed by way of an interim measure was declined. The Municipal Corporation of Delhi who is respondent No.1 herein in response to the summons of the suit had filed written statement before the trial Court and therein has not disputed that the construction raised by respondent No.2 is unauthorized but has stated that under the new Master Plan – 2021, if a construction is 10 years old, it can be compounded. The learned counsel for the appellant before me has disputed the claim of respondent No.1/Municipal Corporation of Delhi that the construction raised by respondent No.2 is liable to be compounded or that the construction is 10 years old. Having heard the learned counsels for the parties, I feel that the question whether the construction is 10 years old and, therefore, is liable to be compounded, is a matter of trial and may require evidence. The trial Court, therefore, was not wrong in holding that no relief sought by the appellant by way of interim measure could be granted. FAO No.209/2010 Page 3 of 3 In view of the above, I find no merit in the appeal. The same is dismissed. However, the trial Court is directed to dispose of the suit as expeditiously as possible, preferably within one year from now. The Municipal Corporation of Delhi is also directed to place on the record of the trial Court the report of the inspection carried out by it with regard to the shops in question. REKHA SHARMA, J. MAY 21, 2010 ka