Kanwal Sawhney vs New Delhi Municipal Committee
1997 Latest Caselaw 772 Del

JUDGMENT

Syria Joseph, J.

(1) The prayer in Cm 1145/97 is for restoration of Civil Revision No. 890/91 which was dismissed in default on 22nd August, 1996. The prayer in Cm No. 1145-A/97 is for condensation of delay in filing the application for restoration. The applicant was not the petitioner in the revision petition which was dismissed in default. He claims to be a Manager, passenger Sales M/s. Deli Express Travels (P) Ltd. tenant of L-22, Connaught Circus, New Delhi. The respondent, New Delhi Municipal Committee (hereinafter referred to as `the NDMC') has filed reply to both the applications.

(2) The arguments of the learned counsel for the applicant and the learned counsel for the respondent were heard.

(3) Civil Revision No. 890/81 was filed by one Shri Kanwal Sawhney son of Shri C.P. Shawney, sole proprietor M/s. Chaman Lal C.P. Shawney,. 22-L Connaught Circus, New Delhi. Shri Kanwal Sawhney was the tenant of the shop premises bearing No. L-22, Connaught Circus, New Delhi. In order to provide air-conditioning in the premises, the tenant fixed a false ceiling supported by five girders fixed across the width of the hall. The air-conditioning ducts were also supported by the said five girders. The owner of the premises was `M/s. Seth Properties'. It was alleged that on 27th December, 1979 officials of the Ndmc visited the premises and threatened to pull down the structures on the ground that they were unauthorised constructions. Hence, Shri kanwal Sawhney filed Suit No. 12/80 for permanent injunction against the Ndmc restraining them from demolishing the alleged unauthorised construction. He also filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure for interim injunction. After hearing the plaintiff and the defendant, the Trial Court dismissed the application for injunction on 29th January, 1981 holding that the plaintiff had carried out unauthorised construction which was not permissible as per the Punjab Municipal Act and that the defendant had served notice for demolition on the owner M/s. Seth Properties and on the plaintiff. Against the order dt. 29-1-1981 the plaintiff filed Mca No. 49/81 and that was dismissed on 7-9-1981. Thereupon Shri Kanwal Sawhney filed Civil Revision No. 890/81. The revision petition was admitted on 15-9-1981 and by an interim order the Ndmc was restrained from demolishing the structure in question. Ultimately on 22-8-1996 the revision petition was dismissed in default and non-prosecution and the interim orders were also vacated with direction to send back the Trial court record forthwith. Thereafter the applicant has filed the present applications on 16-1-1997.

(4) It is stated in Cm 1145/97 that the applicant is in lawful and physical possession as tenant in shop No. L-22, Connaught Circus, New Delhi since 7-9-1982. Shri Kanwal Sawhney, the previous tenant is stated to have surrendered his tenancy in the beginning of 1982 and handed over the physical possession of the said premises to the owner "Seth Properties, Connaught Circus, New Delhi". It is further stated that the previous tenant/petitioner was not interested in the said premises or in these proceedings as he had surrendered the physical possession of the premises. It is also alleged that the applicant was not aware of these proceedings and could not appear before this court. The applicant took the premises in the condition as it existed then in bona fide belief that the entire construction had been done by the landlord himself. It is also stated that the applicant has a vested legal right in the suit premises being lawful tenant in physical possession.

(5) Admittedly the case of action for filing the suit was the proposed action of the Ndmc to demolish the unauthorised construction before the present applicant came into possession of the premises. According to the Ndmc, notice had been issued and served on the landlord and the tenant. The then tenant chose to file the suit for permanent injunction restraining the Ndmc from demolishing the unauthorised constructions. The revision petition arose from the order of the Trial Court refusing to grant interim injunction. The revision petitioner, for reasons best known to him, chose not to prosecute the revision petition and not to appear when the revision petition was posted for hearing. The revision petition was hence dismissed in default and non-prosecution. Only the revision petitioner or his legal heirs have the right to apply for restoration of the revision petition. The said right is not available to the applicant who claims to be now in possession of the premises. If the Ndmc takes any action to demolish the unauthorised construction in the premises in question and if the applicant is aggrieved by such action of the Ndmc, the applicant can file his own suit against the Ndmc for defending his right or interest, if any. He cannot inherit the suit or the revision petition filed by the earlier tenant.

(6) Learned counsel for the applicant placed reliance on the judgments in Rameshwar Bhagat v. Thakur Jeban Narayan Singh Air 1937 Patna 49, Challamuthu Padayachi v. Rajave B.M. Advani v. Uoi , Sriramual Ramachandram v. Sriramual Bhoodamma and Bhagwan Swaroop v. Mool Chand . I am of the view that the above mentioned judgments have no application or relevance to the facts of this case. For the reasons stated above both the applications are dismissed. The parties are left to bear their own costs. Applications dismissed.