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2015 Supreme(HP) 1003
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Vijay Kumar Sood - Appellant
Versus
Smt. Krishna Devi Sud & or - Respondents
RSA No. 41 of 2004.
Decided on : 02.09.2015
Advocate Appeared:
For the Appellant :Mr. J.S. Bhogal, Sr. Advocate with Mr. Parmod Negi, Advocate.
For the Respondents:Mr. Rajeev Sood, Advocate.
The plaintiff's unauthorized constructions barred them from seeking relief through an injunction.
Headnote:
Unauthorized Construction - Injunction - Ext. DW-2/A - The court discussed the unauthorized construction carried out by the defendants without seeking necessary sanction from the Municipal Corporation. The plaintiff alleged that the construction would obstruct light and air, but the defendants denied this and pointed out the plaintiff's own unauthorized constructions. The court found that the plaintiff's unauthorized constructions barred them from seeking relief through an injunction.
Fact of the Case:
The plaintiff sued the defendants for unauthorized construction and sought a permanent prohibitory injunction. The defendants contested the suit, denying extensive repair work and claiming permission for their construction.
Finding of the Court:
The court found that the plaintiff's unauthorized constructions barred them from seeking relief through an injunction. The defendants' construction did not significantly affect the plaintiff's rights to light and air.
Issues: The main issue was whether the defendants were liable to be restrained from constructing the balcony without necessary sanction from the Municipal Corporation.
Ratio Decidendi: The court held that the plaintiff's own unauthorized constructions barred them from seeking relief through an injunction. The defendants' construction did not significantly affect the plaintiff's rights to light and air.
Final Decision: The appeal was dismissed, and the court found no merit in the case.
Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla, H.P. dated 24.12.2003, passed in Civil Appeal No.47-S/13 of 2001.
2. “Key facts” necessary for the adjudication of this regular second appeal are that appellant-plaintiff (hereinafter referred to as the plaintiff) has instituted suit for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants for convenience sake). According to the averments contained in the plaint, the defendants had carried out extensive repairs in the second floor of the building in contravention of the sanctioned municipal plans and without obtaining any permission from the Municipal Authorities. The defendants have also left girders to the extent of 5 feet towards the southern lower bazaar side of the suit premises, with a view to take their support and construct overhanging verandah in the second floor. The defendants had no right to construct overhanging verandah, which will hamper the light and air to the first and ground floors of the building, which was in possession of the plaintiff.
3. The suit was contested by the defendants. According to the defendants, they have not carried out any extensive repair work. They were not extending any verandah over the common Galli. The verandah had already been constructed by them in the year 1979, after obtaining permission from Municipal Corporation, Shimla. They only wanted to replace the old wooden planks. They have also filed the complaint against the plaintiff for raising unauthorized construction.
4. The issues were framed by the learned trial Court on 19.10.1993 and 17.11.2000. The suit was decreed by the learned Sub Judge, Ist Class, Court No. 1, Shimla on 28.2.2001. The defendants, feeling aggrieved, preferred an appeal before the learned District Judge, Shimla. The learned District Judge, Shimla, allowed the appeal on 24.12.2003. Hence, this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 28.4.2004:
“1. Whether in view of the admissions of the defendants to the extent that the Ext. DW-3/A was not sanctioned in their name and no completion plan had been submitted by them since 1979, it could be held that defendants were not liable to be restrained from constructing the balcony?”
6. Mr. J.S.Bhogal, Sr. Advocate, appearing for the appellant, on the basis of substantial question of law framed, has vehemently argued that the defendants have carried out the unauthorized construction without seeking necessary sanction from the M.C. Shimla. On the other hand, Mr. Rajeev Sood, Advocate, for the respondents has supported the judgment and decree dated 24.12.2003.
7. I have heard learned Advocates for the parties and gone through the judgments and records of the case carefully.
8. The plaintiff has appeared as PW-1. He has exhibited sale deed Ext. PW-1/A and sanction plan Ext. PA. According to him, if the verandah is constructed by the defendants, it will obstruct the light and air. The defendants have laid four girders for laying verandah. In his cross-examination, he admitted that the defendants have obtained the sanction for repair but denied that there was any verandah in the set of the defendants. In his rebuttal evidence, PW-1 Vijay Kumar could not depose as to whether defendants had obtained permission from the Municipal Corporation on 14.3.1990.
9. DW-1 Naveen Sood deposed that the suit premises were purchased by his mother in the year 1974. They were doing repair work in the year 1990 and verandah already existed. They were replacing the wooden planks with girders. According to him, they have got the house plan passed in the year 1979. They have raised the verandah in the year 1979. They have again tried to repair it in the year 1990.
10. Sh. Deewan Chand, JE, M.C. Shimla, DW-2 has exhibited the sanction plan Ext. DW-2/A dated 11.9.1979. According
