JUDGMENT
K.S. Gupta, J.
(1) This appeal by Rajesh Gupta, appellant-plaintiff, is directed against the order passed by learned Single Judge on August 9,1996 disposing of two applications, one under Order Xxxix Rules 1 & 2, Civil Procedure Code (I.A. 3013/96) and the other under Order Xxxix Rule 4, Civil Procedure Code (I.A. No. 3339/96).
(2) Facts giving rise to this appeal lie in a narrow compass. Appellant has filed a suit seeking a decree for permanent injunction against Ajit Prasad Jain and the Commissioner, Municipal Corporation of Delhi, respondents-defendants, inter alia, on the allegations that he is a tenant in respect of shop Nos. 2 & 3 forming part of property No. F-14/17, Model Town-11, Delhi, under respondent No. 1. Respondent No. 1, who started illegal construction on the rear portion of the said property, is now trying to raise construction on the roof of said shop Nos. 2 & 3 without getting building plan sanctioned from respondent No. 2 and obtaining consent from the appellant. Both the tenanted shops are without foundation and have very thin walls and ‘I’ beams to support and they cannot bear the load if construction is made by respondent No. 1 on the roof thereof.
(3) I.A. No. 3013/96 under Order Xxxix Rules 1 & 2 read with Section 151 Civil Procedure Code was filed in the suit by the appellant for issue of ad interim injunction restraining respondent No. 1 or any body acting- through him or on his behalf from making construction on the roof of tenanted shop Nos. 2 & 3. On this application an ex-parte ad interim injunction was granted on March 26,1996 restraining respondent No. 1 from raising any structure on the roof of shop Nos. 2 & 3.
(4) Respondent No. 1 has contested the suit by filing Written statement. He also filed application being I.S. No. 3339/96 under Order Xxxix Rule 4 read with Section. 151, Civil Procedure Code for vacating the order dated March 26, 1996, besides filing reply to the appellant’s application under Order Xxxix Rules 1 & 2, CPC. It is not disputed that the appellant is a tenant in shop Nos. 2 & 3 and respondent No. 1 proposes to make construction on the roof of these shops. It is alleged that the revised building plan for raising construction on the roof of the shops was got sanctioned by respondent No. 1 from respondent No. 2 on January 30,1996 and a copy of the sanction order has been filed alongwith I.A. No. 3339/96. It is further alleged that the consent of the appellant is not needed for carrying out construction on the roof. It is denied that the existing structure of the tenanted shops is either without foundation or is supported by thin walls and ‘I’ beams as alleged. Respondent No. 1 is even ready and willing to strengthen the structure of the tenanted shops to the satisfaction of this Court. It is further stated that the building plan sanctioned by respondent No. 2 is valid only upto January 22,1998 and if the order dated March 26,1996 is not set aside not only the period of sanctioned plan would elapse but the cost of construction would also escalate causing undue hardship and loss to respondent No. 1.
(5) Learned Single Judge through the impugned order vacated ex-parte order of injunction and dismissed appellant’s application thereby allowing application of respondent No. 1. .
(6) We have heard learned Counsel for the parties and been taken through the record.
(7) In support of the appeal it was contended by the learned Counsel for the appellant that respondent No. 1 by making misrepresentation got the revised building plan sanctioned from respondent No. 2 and the appellant was, thus, compelled to move an application dated June 21,1996, for revocation of the sanction granted by respondent No. 2. By an order passed on February 19, 1997 by the Appellate Tribunal, Mcd, Delhi, in Appeal No. 219/ATMC/96 filed by the appellant, said application dated June 21, 1996 has now been directed to be decided by respondent No. 2 by March 31, 1977. In the face of this order of Tribunal the respondent No. 1 on the strength of the revised sanctioned plan cannot raise the construction on the roof of the shops which is under the tenancy of the appellant. In support of the contention the appellant has placed on record a copy of the order passed by the Appellate Tribunal on February 19, 1997. A bare reading of the order goes to show that respondent No. 2 through Commissioner is now required to take a decision on the appellant’s application dated June 21,1996 seeking for revocation of the sanctioned building plan by March 31, 1997, in accordance with law, after allowing both the parties adequate opportunity of hearing including production of evidence oral as well as documentary. It is not in dispute that the operation of the revised sanctioned building plan has not been suspended and it continues to be valid uptil January 22,1998. Therefore, without waiting for the decision on the appellant’s above application dated June 21, 1996, respondent No. 1 can proceed with the construction on the roof of both the tenanted shops on the strength of the aforementioned revised sanctioned building plan. Thus, the submission referred to above advanced on behalf of the appellant is repelled being devoid of merit.
(8) It was next submitted by the learned Counsel for the appellant that the construction on the roof of the tenanted shops can be made by respondent No. 1 only after obtaining permission from the Rent Controller, Delhi, under Section 23 of the Delhi Rent Control Act and as no such permission has been obtained he cannot raise the construction. We are unable to accept the submission. Section 23 provides as under: “Where the landlord proposes to make any improvement in, or construct any additional structure on any building which has been let to a tenant and the tenant refuses to allow the landlord to make such improvement or construct such additional structure and the Controller, on an application made to him in this behalf by the landlord, is satisfied that the landlord is ready and willing to commence the work and that such work will not cause any undue hardship to the tenant, the Controller may permit the landlord to do such work and may make such other order as he thinks fit in the circumstances of the case.”
(9) A bare perusal of the section goes to show that it is an additional remedy provided to a landlord to seek directions from a Rent Controller but does not abridge or abrogate the right of the landlord to raise additional structure without the permission of the Rent Controller It was lastly urged on behalf of the appellant that the existing structure of the tenanted shops cannot bear the additional load of construction on the roof and for that reason alone ex-parte ad interim injunction ought not to have vacated by the learned Single Judge. Both the I.As. were disposed of in terms of the impugned order with the following directions : “I hereby direct the defendant No. 1 to put up construction in accordance with the sanctioned plan in the premises without causing damage to the business that is being now carried on by the plaintiff. The Engineer Incharge of the construction by defendant No. 1 shall take all precautions while proceeding with the construction………..”
These directions sufficiently take care of the grievance raised on behalf of the appellant. Moreover, it is .open to the appellant, if he so wishes, to avail of the offer made by respondent No. 1 that he is ready to further strengthen the existing structure before making construction on the roof of the tenanted shops. We find no infirmity in the impugned order. The appeal has no force and is, therefore, dismissed but in the circumstances with no order as to costs.