SUBHASH CHAND GOEL Vs. OM PRAKASH GUPTA

JUDGEMENT

(1.) THE petitioners are aggrieved by an order dated 10.9.2007 whereby an application made by the petitioners under Order 7 Rule 11 CPC was dismissed.

(2.) THE brief facts relevant for the purpose of deciding this petition are that respondent Om Prakash Gupta had filed a suit against his brother Subhash Chand Goel and others in respect of property No. B-1/26, Vasant Vihar, New Delhi. In the suit he alleged that the property in question measured 400 sq. yards and at the time of execution of sub-lease by the superior lesser i.e. defendant no.6, sublease was granted in the joint names of plaintiff and defendant no.1 in the year 1971. The two brothers thereafter partitioned the plot into two parts and Western portion was taken by defendant no.1 and eastern portion by the plaintiff. Both the brothers raised construction on their parts separately and after construction, occupied their constructed portions separately. Plaintiff alleged that defendant made incomplete construction of a three storeyed house on his portion of plot without obtaining a sanctioned plan from MCD and started living there in few rooms from 1992 onwards and he lived there till 18.1.1996. He then moved to 289 Tarun Enclave. On 27.1.1996. The petitioner found defendant no.2 along with masons and labours at the premises of defendant no. 1 who started working for completing the construction over the plot. The plaintiff objected to this and told defendant no. 2 that there was no sanctioned building plan. The defendant no. 2, however, did not stop the construction work. It is also stated that there was no electricity connection in the portion of defendant no.1 and defendant no.2 was trying to obtain electricity connection from defendants no.4 and 5. It is submitted that defendant no.3 MCD was duty bound to demolish the illegal structure raised by defendant no.1 but it did not do so. He filed a suit seeking following reliefs:

(3.) THE learned Civil Court observed that the first issue required trial in order to know that why defendant no.2 be not restrained from raising further construction on the disputed property and what is the locus standi of the plaintiff vis-a- vis relief. It was also observed by the court that so long as the plaint discloses some cause of action and raise some questions to be decided by a court, only because the case was weak and the respondent was not likely to succeed, was no ground for return of plaint.