SETH SURJAMULL & SETH BABULAL DHARMADA AND DHARMIK TRUST & OTHERS vs SH. RAM GOPAL & SONS & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02nd November, 2023
Pronounced on:01st December, 2023

CS(OS) 290/2017

SETH SURJAMULL & SETH BABULAL DHARMADA AND DHARMIK TRUST & OTHERS ….. Plaintiffs
Through: Mr. Raman Kapur, Sr. Advocate with Mr. Anand M. Mishra, Advocate.

versus

SH. RAM GOPAL & SONS & ORS. ….. Defendants
Through: Mr. Rahul Malhotra & Ms. Shruti Gupta, Advocates for D-78.
Mr. Anubhav Kumar, Advocate for D-99 to 102, 104, 106, 108, 111, 112, 117, 119, 120 & 121.
Mr. Mukesh Gupta, Standing Counsel, MCD with Mr. Raghav Gupta & Mr. Ishant Sehrawat, Advocates for D-126/MCD.
Mr. Kotla Harshvardhan, Advocate for private defendants.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 7181/2017 (u/O XXXIX Rule 2A of CPC, 1908)
1. The present Application under Order XXXIX Rule 2(A) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) has been filed on behalf of the applicants/plaintiffs seeking initiation of contempt proceedings against the defendant Nos. 1 to 126 for willful disobedience of the Order dated 19.06.2017.
2. The plaintiffs had filed the Suit for Permanent and Mandatory Injunction on 19.06.2017 against 125 defendants who were the occupants of the suit property situated at Katra Dulia, Chandani Chowk, Delhi (hereinafter referred to as suit property) and the defendant No. 126/North Delhi Municipal Corporation (hereinafter referred to as “MCD”).
3. It was asserted that the suit property commonly known as Katra Dulia was purchased by Seth Suraj Mal and Seth Babu Lal vide Sale Deed dated 22.03.1936. The suit property comprised of various shops. Thereafter, the plaintiff No. 1 Trust was constituted in respect of the suit property. The shops were occupied by the defendant Nos. 1 to 125.
4. On the night of 22.05.2017, a fire broke out in the suit property, apparently due to short circuit in one of the shops because of which various shops got destroyed and some portions of the suit property fell. The entire structure became completely dilapidated and unfit for use whatsoever. Consequently, the plaintiffs vide Communication dated 02.06.2017 requested the Commissioner, North Delhi Municipal Corporation to take necessary action since the suit property had been rendered dangerous and was likely to fall.
5. It was further asserted that 16.06.2017, one of the representatives of the plaintiff No. 1 Trust on visiting the site was shocked to know that various persons were carrying out the rebuilding work in the suit property. It was their case that no work of any nature could be undertaken in the suit property as it could lead to the collapse of the entire building. Therefore, a prayer was made for a Decree of Permanent Injunction for restraining the defendants, their representatives, agents, assigns etc. from undertaking any nature of work and also to restrain the defendants, their representatives, agents, assigns etc. from occupying various portions of the suit property and for Mandatory Injunction against defendant No. 126/North Delhi Municipal Corporation for authorising/directing the demolition of the suit property as the same had become dilapidated and dangerous on account of fire.
6. An ex parte ad interim injunction was granted on the first day itself in favour of the plaintiffs/applicants herein restraining the defendants from carrying out any reconstructions or repairs in the respective portions of the shops in the suit property.
7. The defendants appeared and some filed their respective Written Statement.
8. Subsequently, the Suit was disposed of on 27.09.2018 in the following terms: –
“1. The present suit is filed on account of a fire that had broken out in the shops at Katra Dulia, situated in the suit property. The following reliefs have been sought in the present suit: –
(i) Pass a decree of permanent injunction, thereby restraining the defendants, their representatives, agents, assigns, etc. from undertaking any work, of any nature whatsoever, at the suit property falling in Katra Dhooliyanwala, more specifically detailed in para 3 above:

(ii) Pass a decree of permanent injunction, thereby restraining the defendants, their representatives, agents, assigns, etc. from occupying any portion of the suit property falling in Katra Dhooliyanwala, more specifically detailed in para 3 above.

2. The learned senior counsel appearing for the plaintiffs states that the property is more than 100 years old and on account of a fire that had broken there is a possibility of the structure being damaged. He submits that the defendants who are statutory tenants in the premises are trying to carry out renovation work in the garb of repairing the building which is extremely dangerous and is also contrary to the building bylaws.

3. After some arguments, the learned counsel appearing for some of the defendants/tenants strenuously state that without prejudice to their rights and contentions; including maintainability of the present suit; and without admitting any claims made in the present suit they will not carry out any constructions in the building in their respective areas/shops in any form without complying with the law including seeking all necessary permissions from the Municipal Corporation, if necessary. They submit that they will also not carry out any additional construction in the garb of renovation.

4. I have perused the additional affidavit filed by North Delhi Municipal Corporation dated 25.09.2018. I have also been shown a report from the Fire Fighting Department dated 24.05.2017.

5. In my opinion, given the facts and circumstances of the case, a decree can be passed against the defendants in terms of the submissions made by some of the learned counsel for the defendants. This is so as none of the defendants can claim any rights to carry out any additional construction in the property which is contrary to law. All such additional constructions would require appropriate approval of the concerned Municipal Corporation.

6. Accordingly, a decree is passed in favour of the plaintiffs and against the defendants/tenants in terms of the above statements, stated in paragraph 3 above.

7. The learned senior counsel for the plaintiffs submits that in view of the above nothing further survives in the present suit.

8. The suit stands disposed of as above. All pending applications, if any, also stand disposed of.”

9. It is submitted in the application under Order 39 Rule 2A CPC that in the Suit filed by the plaintiffs, the Court considering the urgency of the matter, had granted ex parte ad interim injunction restraining defendants or their agents, representatives, assigns etc. from carrying out construction activity in Katra Dhulia without appropriate sanction of the Building Plan. In view of the same, defendant No. 126/North Delhi Municipal Corporation was directed to ensure compliance of the building bye-laws. The Order of the Court was immediately informed to the defendant No. 126/North Delhi Municipal Corporation with a request to order for stopping of work at the suit property, despite which the work continued with full force and the defendant No. 126/North Delhi Municipal Corporation failed to take any steps to comply with the Orders of the Court.
10. It was claimed that the defendant No. 126/North Delhi Municipal Corporation is acting hand in glove and in collusion with the other defendants and has openly flouted the orders of the Court.
11. It is further submitted that though the suit property was not fit for occupancy, construction work and rebuilding work, but the defendant No. 126/North Delhi Municipal Corporation has allowed the construction and rebuilding work ignoring the orders of this Court. Hence, a prayer is made that the contempt proceedings be initiated against the defendant No. 126/North Delhi Municipal Corporation for willful disobedience of the Order of the Court and it be punished accordingly.
12. The Standing Counsel appeared for defendant No. 126/MCD. Status Report dated 27.02.2019 was filed by the defendant No. 126/North Delhi Municipal Corporation, wherein it has been informed that 19 applications seeking permission for repair were received from the various tenants/defendants for consideration. In strict compliance of the directions given by the Court vide Order dated 12.02.2018, the matter was examined and the contentions of the 19 tenants, plaintiff No. 1 Trust were considered, the status of the site after fire in accordance with applicable Unified Building Bye Laws, 2016 and the provisions of the Delhi Municipal Corporation Act were taken into account and the application of the tenants were rejected on 16.07.2018. This was taken into consideration by this Court while decreeing the suit of the plaintiffs on 27.09.2018.
13. Further, the action against the tenants/defendants for unauthorized construction, had already been initiated and Show-cause Notices were issued. The Sealing Order was made on 11.01.2019 and its execution was planned in the month of February, 2019, subject to availability of the Police Force.Further action was also proposed to be taken in accordance with the law.
14. It was further submitted that when the demolition action was initiated on 01.02.2019, the occupants of the suit property filed a Civil Suit in which the learned Civil Judge granted the status quo Order vide Order dated 16.01.2019. It was also submitted that further action would be taken for demolition/sealing on vacation of the status quo Order.
15. Another Status Report dated 02.03.2020 had been submitted by MCD, wherein it was stated that the unauthorized construction was found to be carried out in the shops and the fixing of iron girders at ground floor of the property in question i.e., Katra Dhuliya, Chandni Chowk, Delhi. The proceedings were immediately initiated and the property booked under Sections 343 and 34 of the Delhi Municipal Corporation Act vide File No. 83/UC/80/EE(B)/CZ/2017 dated 27.06.2017. After following the due process of law, the Demolition Order dated 12.10.2017 has been passed directing the owners/occupiers to remove the construction within six days. Even the Sealing action under Section 345-A of the Delhi Municipal Corporation Act has been initiated and executed at the site.
16. Appeal Nos. 372/2019 and 398/2019 both titled Sunil Aggarwal vs. North DMC have been filed by the parties before the Appellate Tribunal against MCD challenging the sealing and the demolition orders. Both these Appeals are pending adjudication before the Appellate Tribunal, MCD.
17. An MCA No. 13/2019 titled Sunil Aggarwal vs. North DMC is also pending adjudication before the ASCJ, Central, Delhi.
18. Submissions heard.
19. Essentially, the suit property comprised of number of shops which were in occupation of the defendant Nos. 1 to 125. On account of fire that broke out in the suit property in the night of 22.05.2017, the suit property suffered damage. However, according to the plaintiffs, the defendants tried to repair and reconstruct the suit property and when the plaintiffs’ representatives questioned them and tried to stop them, they were threatened. Consequently, the Suit for Permanent and Mandatory Injunction was filed by the plaintiffs against the defendants on 19.06.2017 and an ex parte ad interim injunction was granted vide Order dated — against defendant no.126.
20. The present Application under Order XXXIX Rule 2A of CPC, 1908 has been filed and while the application was pending, the Suit was decreed vide Order dated 27.09.2018 with the directions that the defendants shall not carry out any constructions in the building in their respective areas/shops in any form without complying with the law, including seeking all necessary permissions from the Municipal Corporation, if necessary and also they will also not carry out any additional construction in the garb of renovation.
21. The two Status Reports filed on behalf of the defendant No. 126/North Delhi Municipal Corporation reflect that when it was noticed that some unauthorized construction has been carried out by some of the occupants, the action in the form of sealing and demolition orders have already been made in accordance with Delhi Municipal Corporation Act. Appeals against those Orders have been filed by some of the occupants before the Appellate Tribunal, MCD.

22. It is pertinent to refer to Order XXXIX Rule 2A of CPC, 1908 which provides for consequences for disobedience or breach of injunction which reads as under: –
“Order XXXIX – Temporary Injunctions and Interlocutory Orders.
Rule 2A. Consequence of disobedience or breach of injunction.-
(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.”

23. From the comprehensive reading of Order XXXIX Rule 2A of CPC, 1908, it is evident that essentially the object of the provision is to preserve the sanctity of the Orders that may be made by the Court and in case of non-compliance of the Orders, the property can be attached or the contemner can be detained in civil prison. It is, therefore, evident that the purpose behind Order XXXIX Rule 2A of CPC, 1908 is to ensure compliance.
24. The Apex Court in U.C. Surendranath v. Mambally’s Bakery, (2019) 20 SCC 666 observed that since an allegation of disobedience can lead to a criminal liability there has to be not mere “disobedience” but it should be a “willful disobedience”.
25. In the subsequent judgement in the case of Amazon.com NV Investment Holdings LLC vs. Future Retail Limited, (2022) 1 SCC 209 the Supreme Court observed that there is a vast difference between enforcement of orders passed under Order XXXIX, Rules 1 and 2 and orders made in contempt of court. Orders which are in contempt of court are made primarily to punish the offender by imposing a fine or a jail sentence or both. On the other hand, Order XXXIX, Rule 2-A is primarily intended to enforce orders passed under Order XXXIX, Rules 1 and 2, and for that purpose, civil courts are given vast powers which include the power to attach property, apart from passing orders of imprisonment, which are punitive in nature.
26. In the present circumstances, it may be observed that there are no specific allegations or averments made in the present application specifying “disobedience” or “wilful disobedience” of the ex parte ad interim injunction by defendant No. 126.
27. It is a general application alleging that repair/reconstruction was being carried out by the defendants on the suit property.
28. Significantly, the defendant No. 126/North Delhi Municipal Corporation has already initiated action against those defendants who were found to be raising construction against the building bye-laws. The matters have been taken to the Appellate Tribunal, MCD. Thus, due process of law has been followed and adopted by the defendant No. 126/North Delhi Municipal Corporation.
29. There is no element of “disobedience” or violation of the Orders of the Court made out in the present application. Rather, the two Status Reports make it clear that not only the Applications of some of the occupants seeking permission to carry out repairs have been dismissed but sealing and demolition Orders have already been made. This court finds that once the action has been initiated by the defendant No. 126/North Delhi Municipal Corporation to prevent any construction in contravention of the building bye-laws, it cannot per se amount to contravention of the Order of this Court.
30. Therefore, there is no merit in the present application and the same is hereby dismissed.

(NEENA BANSAL KRISHNA)
JUDGE
DECEMBER 01, 2023
S.Sharma/Ek

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