ONKAR NATH Vs. RAM NATH

JUDGEMENT

(1.) ORDER:- This revision by the plaintiff under S.115 of the Civil P. C. is directed against the judgment and order dt. 23rd March, 1984 of the Additional District Judge confirming the order dt. 29th Nov. 1982 of the Subordinate Judge, Delhi, dismissing his application under O.39 Rr.1 and 2 of the Civil P. C.

(2.) The brief facts as alleged are that the plaintiff is the owner of a three-storeyed house-bearing Municipal No. 4647/1 situated at 21 Darya Ganj, New Delhi and he has been residing on the first and second floors that the house has been in existence for the last 23 years and there have been three windows marked as A, B and C in the plan on the Eastern side of the first floor which are the only source of light and air to the living room and the dining-room of the plaintiff, that under the Building Bye-laws, no construction can be raised back to back and a person who wants to construct a building on an open plot of land is bound to leave at least 10 feet rear set back, and similarly, a front set back. The plaintiff alleges that defendants are in possession of an open plot of land situated on the East of his property marked 'X' in the plan filed with the plaint; that defendants 1 to 3 on 20th Aug. 1982 collected building material with a view to raise unauthorised construction; that he came to know of their intention and warned them not to raise any unauthorised constructions without obtaining sanction of the Municipal Corporation of Delhi. The defendants however started raising unauthorised construction and the matter was reported to the police. The defendants were directed not to raise any unauthorised construction. It is alleged that the defendants again tried to raise unauthorised construction on 23rd Aug, 1982 and the matter was again reported to the police by residents and the defendants were again warned not to raise any unauthorised construction. The plaintiff alleges that the defendants are adamant to raise unauthorised construction contrary to the Building Bye-laws without obtaining the requisite sanction from the Municipal Corporation of Delhi. It is further alleged that defendant 1 is an ex-employee, defendant 2 is an employee of the Municipal Corporation of Delhi and they have influence on the officials of the Corporation and therefore, they are adamant to raise unauthorised construction in connivance with the officers of the Municipal Corporation of Delhi, that defendants 1 to 3 have no right to raise any unauthorised construction and defendant 4, Municipal Corporation of Delhi is bound to take suitable action for the unauthorised construction contrary to the Building Bye-laws. The plaintiff further alleges that if defendants 1 to 3 are allowed to raise construction in contravention of the Building Bye-laws, his rights would be seriously affected as the unauthorised constructions without leaving front and rear set back will not only contravene the Building Bye-Laws but shall also seriously affect his rights as the light and the air which the plaintiff has been enjoying will be seriously affected and that it would cause nuisance; that it will materially affect his comfort; that the provisions for leaving front and rear set back have been made for the benefit of the neighbours, that the Municipal Corporation has no right to allow the construction without the front and rear set back contrary to Building Bye-Laws. On these grounds, the plaintiff prayed for a decree of perpetual injunction restraining the defendants 1 to 3 from raising any unauthorised construction without obtaining necessary sanction of the Municipal Corporation of Delhi on the plot of land situated on the East of his property, marked 'X' in the plan annexed to the plaint. The plaintiff has further prayed for an injunction against defendant 4 restraining them from according permission or sanction to the defendants 1 to 3 in contravention of the Delhi Municipal Corporation Act and Bye-laws framed thereunder. Along with the plaint, the plaintiff filed an application under O.39, Rr.1 and 2 of the Civil P. C. for a temporary injunction restraining the defendants from raising any unauthorised construction during the pendency of the suit.

(3.) The Municipal Corporation of Delhi did not contest the suit and has been proceeded ex parte, Defendants 1 to 3 in their written statement and in reply to the application for the grant of a temporary injunction have pleaded that the plaintiff himself was guilty of encroachment on the street and raising unauthorised construction in contravention of the building Bye-laws. It is denied that three windows are the only source of light and air; that the plaintiff does not have any right of easement on the property of the defendants; that the property of the defendants is not an open plot of land and it is surrounded by 11 1/2 feet high walls on all sides; that the walls has a tin roof and the defendants have removed the same in order to put a masonry roof permissible under the Building Bye-laws; and no permission is required to change the same; that the building existed within the jurisdiction of the Delhi Municipal Corporation from the very beginning; that the side plan was incomplete and incorrect; that the suit was filed in order to cause unlawful loss and harassment to the defendants. It is not disputed that defendants 1 to 3 had procured Badarpur sand and bricks in order to pave the floor of the building. They further state that they have no intention of making any unauthorised construction; that the first storey of the defendants' property exists and if they make second storey then only the question will crop up as to whether by erection of the second storey the windows of the plaintiff would be blocked or not; that the second storey in any case, will not block the light and air of the plaintiffs property; that the claim was vague. The defendants further allege that they want to replace the roof which existed previously. The trial Court dismissed the application holding that the plaintiff had no prima facie case and by changing the roof and construction, the building was not likely to block the windows of the plaintiff; that the plaintiff could not make out his case for leaving the rear set back and front set back. On appeal, the Additional District Judge also dismissed the plaintiffs application holding that the plaintiff had no prima facie case; that the balance of convenience was not in his favour and he was not likely to suffer any irreparable loss or injury because of construction being raised without obtaining sanction.