VIVEK KUMAR GUPTA Vs. HARISH CHANDER MALIK

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been preferred by the defendants in a suit filed by the respondent No.1 plaintiff. The suit was filed for permanent and mandatory injunction averring that the petitioners/defendants being in occupation of shop No.12, Esplanade Road, Chandni Chowk, Delhi 110006 were making additions and alterations and raising construction therein and encroaching on public land around the shop; a decree for permanent injunction for restraining the petitioners/defendants in this regard and a decree for mandatory injunction for directing the respondent No.2 MCD also impleaded as a defendant in the suit, to demolish the unauthorized construction was claimed. The suit was accompanied with an application for interim relief.

(2.) The petitioners/defendants contested the suit. The trial court after completion of the pleadings, on 13th December, 2007 finding that the respondent No.2 MCD in its written statement had pleaded that there was temporary encroachment at the suit site but pucca encroachment could not be established, directed the MCD to file status report regarding pucca encroachment and action taken report with respect to temporary encroachment. It is the contention of the petitioners/defendants that pursuant to the said order the MCD carried out demolition action qua the shop of the petitioners/defendants and demolished the construction which was not even an encroachment. The petitioners/defendants filed an application before the trial court for allowing them to get their premises restored/repaired so as to bring the shop in line with the other shops and for direction that the petitioners/defendants shall be entitled to recover costs of such restoration from the respondent No.1/plaintiff as well as the respondent No.2 MCD. The petitioners/defendants also filed another application before the trial court for taking similar demolition action against other shops in the market, stated to have carried out similar encroachments/constructions as by the petitioners/defendants and which had been demolished.

(3.) The respondent No.1/plaintiff however on 25th July, 2008 sought to withdraw the suit. The petitioners/defendants opposed such withdrawal contending that since the MCD had been directed to file the status report with regard to the respondent No.1/plaintiff's property that is why the respondent No.1/plaintiff was withdrawing the suit. The trial court nevertheless allowed the respondent No.1/plaintiff to withdraw the suit, however without prejudice to the rights, if any, of the petitioners/defendants.