S PASTRY SHOP & ANR ..... Through Mr. Lalit Gupta, Advocate v. SUHAS CHAND GUPTA & ORS .....

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 preferred against the order of Additional District Judge, Shri Daya Prakash dated August 04, 2006 whereby the learned Judge on an application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure filed in a suit for permanent injunction has restrained the appellants herein from making any addition, alteration or from raising any illegal construction or changing the nature of existing construction in respect of two shops No.12 & 13 and residential quarter No.58, plot No.4, Block No.205, Bengali Mal Market, Delhi. The learned Judge 2010:DHC:2155 has also directed the NDMC who is defendant No.4 in the suit, not to allow the appellants and not to grant any permission to them to make any addition, alteration or raise illegal construction or change the nature of existing construction in the said shops as well as in the residential quarter till the final disposal of the suit. The learned Judge has further directed that a copy of the order so passed be sent to the Chairperson, NDMC for taking action against the persons who have given false information to the Court and has not taken any action against unauthorized construction in the suit property. It is submitted by learned counsel for the appellants that the suit in which the impugned order has been passed by the trial Court, has no merit and that the plaint is liable to be rejected, for the reason that respondent No.1 herein had earlier filed a similar suit and therein had also prayed for a similar relief by way of an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure and while the said application is yet to be disposed of, the suit giving rise to the present appeal has been filed praying for a relief that the appellants be restrained from raising unauthorized construction. Having heard learned counsels for the parties, I am of the view that assuming, the suit which has given rise to the impugned order is not maintainable and the plaint is liable to be rejected, the remedy that lies with the appellants is to file an appropriate application before the trial Court. In so far as the impugned order is concerned, it merely restrains the appellants from raising any illegal construction on the suit property which, in my view, is a fully justified order. No person, be it a tenant or a landlord, has a right to raise any kind of illegal construction in any property and if any such construction is being raised, the authority which in the present case is the NDMC is duty bound to take action against such person. There is no infirmity in the order passed by the learned trial Judge. The appeal is dismissed.

REKHA SHARMA, J. APRIL 19, 2010 ka