SUSHIL KUMAR Vs. SANJAY

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the petitioner impugns the order dated 06.10.2012 passed by the learned District Judge-III (North East), Karkardooma Courts, Delhi in MCA No.1/12 vide which the order dated 26.05.2012 passed by the learned Civil Judge was affirmed and the appeal filed by the petitioner was dismissed.

(2.) In brief the facts of the case are that the plaintiff/respondent herein filed a suit for permanent and mandatory injunction claiming himself to be the owner and in possession of House No.D-598, Gali No.1, Ashok Nagar, Shahdara, Delhi. The house of the present petitioner is adjacent to the house of respondent/plaintiff, The petitioner/defendant in Suit No.29/2012 was allegedly raising unauthorized construction with mala fide intention to fix a gate towards the street side to occupy it illegally and forcibly.

(3.) In the written statement filed by the petitioner/defendant before the learned Civil Judge, the plea taken was that the drain water enters in the house of the defendant and the construction of the house of the defendant is very old and as such, the defendant has no option but to reconstruct his property. In the written statement, the petitioner/defendant did not specify as to whether he has got any site plan sanctioned for re-constructing the property. In the given circumstances, while disposing of the application under Order XXXIX Rules 1 & 2 CPC, the learned Civil Judge injuncted the petitioner/defendant till the disposal of the suit from raising any illegal and unauthorized construction towards street as shown in red colour in the site plan annexed with the plaint without obtaining the sanctioned plan from the MCD.