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2000 DIGILAW 1055 (DEL)

NARENDER KUMAR v. SHAM SUNDER GUPTA

2000-12-06

S.K.MAHAJAN

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S. K. MAHAJAN ( 1 ) PLAINTIFF filed suit for injunction against the defendants on the allegations that the defendants who were in possession of the adjoining shop were carrying on unauthorised construction therein and were intending to construct a market. Along with the suit an application for ad-interim injunction was also filed. The Court granted an ad-interim injunction restraining the defendants from disturbing the status quo as it existed on the date of filing of the suit. ( 2 ) DEFENDANTS 1 and 2 filed an application under Order 39 Rule 4 for vacating the stay. In paragraph 7 of the application, it was stated that the property in suit was a commercial property which consisted of a shop on the ground floor, one hall on the first floor and two rooms on the second floor. The Court after hearing the parties passed an order of injunction on 19/6/1992. It was observed by the Court that defendants 1 and 2 were in possession of one shop on the ground floor, hall on the first floor and two rooms on the second floor. The Court was of the view that defendants cannot be permitted to convert the existing structure into number of shops so as to convert the same into a commercial complex in order to earn huge amount of premium. The Court, therefore, restrained the defendants from sub-dividing in any manner the existing structure till disposal of the application under Order 39 Rule 1 and 2. 1 am informed that though by passing orders on application under Order 39 Rule 4, application under Order 39 Rules 1 and 2 was also virtually decided but the sarpe has not been disposed of till date. ( 3 ) AFTER the dismissal of the application under Order 39 Rule 4, defendants 1 and 2 filed their written statement. In the written statement these defendants stated that they were owners of the property bearing No. 2029, 2029 and 2031 and that the ground floor of the same comprised of two shops, two kotharies and one chabutara in front and one chabutara on side towards Katra Tobacco; first floor comprised of one room and two kotharies and Second floor consisting of two rooms and a bath. This written statement was filed in February, 1993. This written statement was filed in February, 1993. Thereafter an application under Order 39 Rule 2-A Civil Procedure Code was filed by the plaintiffs for initiating contempt proceedings against the defendants on the allegations that the defendants had converted the ground floor shop into two and had also carried out certain other unauthorised constructions in violation of the orders passed by the Court on 5/6/1992 and 19/6/1992. Reply to the application was filed by the defendants and the denied having carried out any construction whatsoever in violation of the orders passed by the Courts. It was as in reiterated in the reply that the ground floor was comprised of two shops and two kotharies, apart from one Chabutara in front and one Chabutara on the side towards kotra Tobacco. ( 4 ) ARGUMENTS on the application of the plaintiffs under Order 39 Rule 2-A were heard and the Court passed order on 10/2/1995, In its order, the Court did take note of the fact that defendants had stated in the application under Order 39 rule 4 that there was a shop on the ground floor besides one hall on the first floor and two rooms on the second floor. It also took note of the fact that in the written statement the stand taken by the defendants was that ground floor consisted of two shops and two kotharies and a Chabutara each on the front and the side. The trial court also took note of the fact that a report of the inspection alleged to have been carried out by the municipal Corporation of Delhi on 29/1/1984 was also placed on record by the defendants wherein construction on the ground floor was shown to be two kotharies of the size of 8 X12 , two shops of the size of 12 x12 , one Chabutara of the size of 24 X10 and another Chabutara measuring 3 x8 apart from other construction as mentioned in the written statement. The Court, therefore, was of the opinion that the party should be given an opportunity to explain their conduct and respective averments and framed the following issues:- 1, Whether the defendants No. 1 and 2/ contemners have not carried out any unauthorised construction or subdivision after the restraint order dated 5/6/92 as modified vide order dated 19/6/92? OPD 2, Relief. The Court, therefore, was of the opinion that the party should be given an opportunity to explain their conduct and respective averments and framed the following issues:- 1, Whether the defendants No. 1 and 2/ contemners have not carried out any unauthorised construction or subdivision after the restraint order dated 5/6/92 as modified vide order dated 19/6/92? OPD 2, Relief. ( 5 ) ISSUE No. 1 framed by the Court shows that it was for the defendants to prove as to whether or not they had carried out unauthorised construction or subdivision after the restraint order dated 5/6/92 and 19/6/1992. Defendants 1 and 2, it appears sought to prove this issue by making statement in Court that the construction as it existed on 19/6/1992 was also existing in 1964 when these defendants had purchased the property from its erstwhile owners. They also wanted to prove that even in the inspection report of the Municipal Corporation of Delhi prepared in 1984 the existence of two shops and Kotharies was mentioned. The learned trial court, however, did not permit the defendants to lead this evidence and by an order passed on 19/8/1997 it held that defendants 1 and 2 will lead evidence only to the extent that they did not violate stay order dated 19/6/1992 wherein one shop had been shown on the ground floor. The Court also observed that only evidence to be led by the defendants was that they did not convert one shop to four shops by violating stay order dated 19/6/1992, The Court also directed the defendants not to prove the contents of the written statement while deposing on contempt application. Being aggrieved by this order, the present revision petition has been filed by defendants 1 and2. ( 6 ) IT is contended by Mr. Rawal that once it has been held by the Court and has been so stated by the petitioners in their application under Order 39 Rule 4 that there was a shop on the ground floor, no amount of evidence can be permitted to be led to prove that their existed more than one shop on the ground floor of the property. He has referred to various paragraphs of the application as well as the written statement and the orders of the Court to contend that no evidence can be permitted to be led to prove as to what existed at site in 1964 and 1984. ( 7 ) AS already noted above, a perusal of the issues framed by the Court shows that it is for the defendants/petitioners to prove to the satisfaction of the Court as to whether or not they had carried out any unauthorised construction or sub-division after the restraint order dated 5/6/1992 as modified by order dated 19/6/1992. The only way to prove that no unauthorised construction or sub-division has been carried out after the orders were passed by the Court is to lead evidence to prove as to what existed prior to these dates. If a state of affairs was existing in the premises prior to the date of the passing of the orders naturally there will not be any violation of the orders of the Court. However, if there was no construction in the premises prior to June 1992 and the same is existing at site after the said date, there will clearly be a violation of the orders of the Court. To prove this issue, in my opinion, there cannot be any objection to the defendants producing witnesses not only from the Municipal Corporation of Delhi, but also from any other source to show that there were in fact in existence two shops, two kotharies besides Chabutaras etc. on the ground floor of the property since the time it was purchased by them. The defendants in my opinion, have necessarily to take recourse to the written statement to show that there existed more than one shop on the ground floor of the property. The evidence of the defendants cannot be shut down only to prove that they have not violated the orders dated 19/6/1992. In my opinion, there cannot be any other way to prove the violation of the order than to show as to what existed at the site before the said date. ( 8 ) MOREOVER, the learned trial court while framing issues has itself stated that parties are to explain their conduct and respective averments. In my opinion, there cannot be any other way to prove the violation of the order than to show as to what existed at the site before the said date. ( 8 ) MOREOVER, the learned trial court while framing issues has itself stated that parties are to explain their conduct and respective averments. It is, therefore, for the defendants to prove as to under what circumstances they had in their application under Order 39 Rule 4 written that there was a shop on the ground floor. Trial court could not shut down the evidence of the defendant on this point. The order of the trial court, in my view, therefore, is totally without jurisdiction and the learned trial court had committed material irregularity in passing the same and if the order is allowed to stand, it will cause injustice to the defendants. ( 9 ) I accordingly set aside the order dated 19/8/1997 passed by the trial court and permit defendants 1 and 2/petitioners to lead evidence of whatsoever nature they feel necessary to prove the issue as to whether or not they have violated the orders dated 5/6/1992 and 19/6/1992. ( 10 ) WITH these observations, this petition stands disposed of. C. M. 29/98 ( 11 ) SINCE the petition has been disposed of this application has become infructuous and is accordingly disposed of.