* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 63/2010 Date of Decision; April 05, 2010 SHRINASEEM AKHTAR Appellant Through: Mr. M.L. Khan, Advocate versus MADAN SINGH & ANR. Respondents Through: Nemo. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whetherreportersof localpapermay be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whetherthejudgmentshouldbe reported in the Digest ? JUDGMENT ARUNA SURESH. J. (Oral) CM APPL.5775/2010 (exemption) Exemption allowedsubjectto alljust exceptions Application stands disposedof RSA 63/2010 and CM APPL.5774/2010 (stay) RSA 63/2010 Page 1 of 6 Digitally Signed By:AMULYA Signature Not Verified 2 1. Suit for mandatoryinjunctionwas filed by Respondent No.1 seeking direction against Respondent No.3 MCD to demolish illegal and unauthorized construction raised on the roof of the tenanted shop No.C-227, Ground floor, situated at Main Brahampuri Road, Chauhan Bangar, Delhi (hereinafterreferred to as 'Suit Premises') and also a mandateagainstthe appellantand one ShakilAhmed (not a party in the appeal) for removal of the alleged unauthorized construction. 2. Case of RespondentNo.1 was that appellantand ShakilAhmedwere C inducted as tenants in the suit premises. However, appellant trespassedon theroof ofthe shop andraisedunauthorizedand illegal construction of Tripal Shed with T-iron Angle in the month of February-March,2006. He made a complaint with Police Station Seelampurregardingthe said unauthorizedconstructionwho in tum referred the matter to MCD but MCD failed to take any action. Hence, he filed the suit. 3. The Trial Court vide its detailed judgment and order dated 01.05.2009,was pleased to decree the suit of RespondentNo.l and directed the appellant to remove Tripal Shed with T-iron Angle raised by him on the suit premises with cost of the suit. RSA 63/2010 Page 2 of 6 4. Appellantchallengedthe judgmentand decree of the Trial Court in RCA No.6/2009. The said appeal was dismissed on 21.12.2009. Aggrieved by the said judgment and decree of the AppellateCourt, this appeal has been filed under Section 100 CPC. 5. It is the admitted case of the appellant that he is a tenant of RespondentNo.l in the suitpremises. He has also admittedthathe constructedTripal Shedwith the help of T-iron Angle on the roof of the tenanted shop without permissionof the landlord / Respondent No.l. 6. Mr. M.L. Khan learned counsel for the appellant has submitted that Tripal Shed with T-iron Angle cannot be termed as unauthorized construction as it was raised by the appellant to store his mattresses and quilts, the business in which he is engaged. It is argued that jurisdictionof theCivilCourtis barredunderSection50of theDelhi Rent Control Act (DRC Act) and Respondent No.l could have invokedthe provisionof Section 14 (i) (J) of DRC Act for redressal of his grievances against the appellant and therefore, substantial questionoflaw arisesin this appeal as to whetherthejurisdictionof the Civil Court is barred under Section 50 of the DRC Act in view of the relationshipof the partiesbeing tenant and landlord. RSA 63/2010 Page 3 of 6 7. I do not find much force in the submissions of the leamed counsel for the appellant. Suit for mandatory injunction was filed by Respondent No.l against the MCD & Another for directing them to remove unauthorized construction raised on the roof of the suit premises. The Trial Court as well as the Appellate Court dealt with this issue and came to the conclusion that provision of Section 50 of the DRC Act are not attracted to the facts and circumstances of this case. I find no reason to disagree with them. A suit for mandatory injunction can be filed invoking provision of Section 39 of the SpecificRelief Act when to prevent breach of an obligation,it is necessary to compelthe performanceof certain acts which the Court is capable of enforcing. The Court has the discretion to grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. Section 14 (1) 0 of the DRC Act entitles a landlord to evict a tenant if the tenant has caused or permittedto be caused substantialdamages to the premises. In the instant case, Respondent No.l has not alleged that appellant has caused or permittedto be causedsubstantialdamageto the demised premises. Rather, Respondent is interested only in removal of unauthorized construction raised by the appellant on the roof of the suit premises because it is against municipal bye-laws. Remedies RSA 63/2010 Page 4 of 6 5 available to a landlord under the DRC Act and the Specific Rehef Act are different in nature. There is no provision in the DRC Act whereby a landlord can seek relief of injunction as prayedin the suit. Both the Courts below have decreed the suit of Respondent No.l rejecting the defence raised by the appellant by giving concurrent findings on facts. 8. It is well settled principle of law that where there are concurrent findings of facts by both the Courts below, this Court in the second appeal cannotinterferewith the said findingswithout any sufficient reasons. Second appeal can be entertained only when it is shown that there is a substantialquestionof law involved which is required to be dealt with by this Court. Appellanthas to demonstratethat the findingsof facts reachedby the first AppellateCourtwas affectedby any of the errors as contemplatedby provisionof Section 100 sub Section 1 (a) (b) and (c) CPC. 9. Appellanthas notbeenableto showthatthe impugnedjudgmentand decree of the Courts below were either contrary to law or that they failed to determine some material issues or usage having the force of law, or a substantialerroror defectin the procedureprovidedby the CPC. RSA 63/2010 Page 5 of 6 io 10. Hence, it is concluded that no substantial question of law arises in this case. No perversity in the findings of the Courts below have been pointed out. Therefore, no interference is required by this Court in the second appeal, especially when no substantial question of law arises in this case. 11. Hence, appeal is accordingly dismissed. APRIL 05,2010 vk (ARUNA SURESH) JUDGE RSA 63/2010 Page 6 of 6