Arjun Singh v. Ramsaran

1. By way of the present petition under Article 227 of Constitution of India, the petitioner assails the order dated 4^'^ February 2013 passed by the court of Civil Judge, Tis Hazari, Delhi in suit No.28/2005.

2. The respondent/plaintiff filed a suit for permanent injunction to restrain the petitioner/defendant from raising unauthorized construction without his consent. He has flirther prayed for a decree of mandatory injunction to direct the petitioner to remove the unauthorized construction. The petitioner filed a written statement and refiited the allegations made by the respondent. The respondent filed a replication to the wTitten statement reafifiraiing his averments in the plaint.

3. On the basis of the pleadings and dociunents, issues were framed and one of the issues settled was ''whether the present suit with respect to the relief ofmandatory injunction was barred by limitation". The learned Civil CM(M) No.346/2013 Page I of[4] 2013:DHC:7409 Judge treated it as apreliminary issue and held that the same would be decided after leading ofevidence alongwitli other issues.

4. The issue arising before this court is whether the suit with respect to the reliefofpermanent and mandatory injunction barred by limitation. •5. The counsel for the petitioner argues that the limitation period for seeking the relief ofmandatory injunction is three years and the respondent herein filed asuit after the expiry of period of limitation and therefore, the suit is barred.

6. Learned counsel for the petitioner submits that the constmction for the demolition of which the respondent is seeking mandatory injunction was carried out in 1976-77 and therefore, the suit would not be maintainable.

7. The learned Civil Judge on bare perusal ofthe pleadings observed that the respondent mentioned no date of the disputed construction and also denied the date of construction as alleged by the petitioner. The subordinate court's view is that since the question of limitation in the present matter is a mixed question offact and law, it can be decided only after leading evidence and upon trial and accordingly, listed the matter for plaintiff (respondent herein) evidence.

8. The main argument of the petitioner in the matter is that the construction up to four storey was raised by the petitioner in the year 198/. In para 5 of the plaint, the respondent/plaintiff has mentioned that the petitioner/defendant raised the construction some years ago and he has raised four storey constmction by erecting Chajja and residential room. Therefore, it is argued by the petitioner that the learned trial Court ought to have decided the issue infavour ofthepetitioner. CM(M)No.346/2013 P'Se2of[4]

9. On the other hand, the case of the respondent/plaintiff in the suit is that previously, the House No.WZ-493, Vill.Naraina in possession of the petitioner/defendant was one and a half storey building having the construction of some rooms towards the backside of his property but some years ago, the petitioner unauthorisedly and illegally without the prior peiinission of MCD and also without permission from the respondent m writing, raised four storey construction in it by erecting Clihajjas on all the floors and covering it into the residential rooms and opening the doors and windows in/towards the house ofthe respondent in Poli while the petitioner has got no right to do so. The case ofthe respondent is that in view ofthe said unauthorized construction, the respondent has been suffering a great difficulty and is put to hardship in using and occupying his property easily and smoothly and is unable to get fresh air and light in his house.

10. In para 9 of the plaint, a specific statement was made by the respondent that the cause ofaction to file the suit was arisen on 23 January, 2005 when the petitioner tlireatened to raise unauthorized construction etc. towards the Poli or Deorhi ofthe respondent's house and also collected men and material at the spot for raising unauthorized construction and the same is continuing from timeto time.

11. Learned counsel for the respondent has submitted that there is no admission on part ofthe respondent that the construction ofthe property is more than three years old from the date offiling ofthe suit in question mthe year 2005. He has also triedto refer the documents, i.e. certifiedcopy ofthe order dated 20"' September, 2001 passed in Civil Writ No.176/1997 filed by the respondent against the petitioner; copy of compromise written by the petitioner; copy of the order dated 26"" March, 2012 passed by the learned CM(M)No.346/20I[3] •Jnj Civil Judge; copy of the charge framed against the petitioner and others in Criminal Case No.275/02/05; copy of complaint dated 25^^ January, 2005 and certified copy of the evidence of PW-2 Sh.Rajender Singh recorded in tlie case titled as Arjun Singh vs. Ram Saran.

12. It is pertinent to mention that the grievance of the petitioner before the learned trial Court was merely that issue No.l, i.e. Whether the present suit with respect to the reliefofMandatory Injunction is barred by Limitation?, be treated as a preliminary issue. The learned Trial Court has observed that a mere reading of plaint shows that the respondent did not mention the exact %. date of disputed construction thus, this fact requires trial where both parties have to prove their own version by leading evidence. The date mentioned by the petitioner in his pleadings has been denied by the respondent in his replication also. In view of pleadings of the parties, learned trial court in my view has correctly passed the order to the effect that since the question of limitation in the present case is a mixed question of fact and law, therefore, it should be decided after leading the evidence and upon trial.

13. Having considered the pleadings at this stage, this Court is of the same view that the said issue of limitation already framed needs trial in view of pleadings and documents placed on record by the parties. The said issue of limitation has become mixed question of facts and law and it has to be determined after leading the evidence. Therefore, the present petition is without any force and the same is dismissed.

14. No order as to costs. rOHAN S1N< JUDGE NOVEMBER 18, 2013