Municipal Corporation Of Delhi vs Surender Deo Gaur And Ors.
2001 Latest Caselaw 1430 Del

ORDER

Sanjay Kishan Kaul, J.

1. A suit was filed by respondent No.1 against the appellant and respondents 2 to 5 for possession and for recovery of mesne profits/interest or in the alternative for recovery of Rs.77,99,417.40p. The subject matter of the suit relate to a part of colony known as Jaidev Park Colony village Basai Darapur, Delhi. It is stated in the plaint that respondent No.1/plaintiff and respondent No.5/defendant No.5 formed a Joint Hindu family and were coloniser of the land in questions action for which was granted by the Standing Committee of the MCD in terms of the lay out plan submitted. The said sanction was granted vide Resolution dated 1.4.1959. It is further stated that the land was developed and building activities permitted vide Resolution dated 5.1.1962. Plots were carved out and sold. The purchasers of the plots formed an Association which is respondent No.4. It was alleged that the occupants of the plots colluded with the MCD for taking over various services and that the land meant for road and certain other areas was not sold. It was also alleged that no opportunity was granted to the colonisers to put forth their case. Certain suits filed by the Colonisers for perpetual injunction are stated to be pending. In para-48 the cause of action for filing suit on the alleged illegal occupation is stated to have arisen on 12.2.1978. The suit was filed on 12.2.1990 just at expiry of 12 years.

2. On the suit being filed summons were directed to be issued to the defendants. The MCD was served for 5.7.1990 when their counsel entered appearance. The suit was adjourned from time to time but not written statement was filed. Finally on 19.8.1997, MCD (the appellant before us) was proceeded ex parte. Ex parte evidence was directed to be led on affidavits on behalf of respondent No.1. Various opportunities were granted to lead evidence by way of affidavits. The affidavits were filed only on 15.1.1999.

3. The appellant moved an application for setting aside the ex parte proceedings being IA No.10933/99 under Order IX Rule 7 of the Code of Civil Procedure, 1908 (hereinafter referred as the Code) Along with an application (IA No.10934/99) under Section 5 of the Limitation Act seeking condensation of delay. It may be stated that similar applications were also filed on behalf of defendant No.4. After filing of the replies, the learned Single Judge by the impugned order dated 19.4.2001 dismissed the applications.

4. The explanation given in the application for setting aside the ex parte proceedings was that the matter had been assigned to different counsel from time to time and finally the file was not received after the same had been assigned to the last counsel. It was only on inspection of the file on 19.8.1999 that the appellant came to know of the ex parte proceedings. Learned Single Judge considered the fact that no written statement had been filed for a period of about seven years and also that the application for setting aside the ex parte proceedings was filed more than two years after the appellant was proceeded ex parte on 19.8.1997. Learned Single Judge also recorded that even at the stage of moving of the application no written statement had been filed.

5. Mr. R.P.Bansal, learned Senior counsel for the appellant sought to contend that keeping in mind the nature of the controversy which relates to public land, it was a fit case where the ex parte proceedings should be set aside subject to such terms as this Court may deem appropriate. It may be further add that on 2.6.2001, the written statement has also been filed by the appellant. The sites in question forming subject matter of the suit were claimed to be public utility sites meant for public park, school and recreation hall etc. for the residents of the Jai Dev Park colony and construction carried out on portion of the land exists for the last more than 25 years. It was further stated that lapse on the part of the appellant was not intentional and that respondent No.1, who is a coloniser was trying to take possession of the land allotted for public utility.

6. We had called for the records of the MCD to see the internal movement of the file. There is no doubt that there has been negligence on part of the officers of the appellant in taking follow up action in the matter. The file speaks volume for the incompetent manner in which the officers of the appellant had handled the matter which had wider ramification in respect of the residents of the colony and of the land alleged to be public land by the appellant. The explanation forthcoming that the file was not received from the counsel and therefore, written statement could not be filed is not borne from the record. The file shows that the matter was with the earlier counsel and the last counsel even as early as 1993 had discussed the matter with the officials. The public body like the appellant cannot leave the file and not follow up the matter. It is relevant to state that after 1993 the next noting on the file is only in June, 1999. It clearly shows lack of vigilance and follow up on behalf of the officers of the MCD.

7. Mr. V.B.Andley, learned Senior counsel for the respondent No.1 vehemently opposed the appeal as the contended that there was no ground made out for setting aside of the ex parte proceedings and the learned Single Judge had rightly dismissed the application of the appellant. In support of his contention Mr. Andley relied upon a judgment of Supreme Court in case of the State of West Bengal v. The Administrator, Howrah Municipality and others etc. . The supreme Court while dealing with an application under Section 5 of the Limitation Act observed that the expression "sufficient cause" cannot be construed too liberally merely because the party in default is Government and the consideration while dealing with the Government and private party should remain the same. Mr. Andley, learned Senior counsel also referred to full Bench judgment of the Punjab & Haryana High Court in Smt. Tara Wanti V. State of Haryana through the Collector, Kurukshetra where dealing with the expression "sufficient cause" the Full Bench was of the view that sufficient cause within the meaning of the Section must be a cause which is beyond the control of the party invoking the aid of the Section and the test to be applied would be to see as to whether it was a bona fide cause, inasmuch as nothing could be considered to be bona fide which is not done with due care and attention. Mr. Andley, learned Senior counsel lastly referred to the judgment of the Supreme Court in Ramesh Chand and another V. Punjab National Bank and others, as an alternative submission where the Supreme Court while dealing with the delay in filing written statement in case where the conduct of the defendant was far from satisfactory directed that the written statement could be permitted to be filed on the condition of the suit claim being deposited in Court. Thus Mr. Andley, learned Senior counsel for the respondent No.1 contended that in case the ex parte proceedings are to be set aside, the amount claimed in the suit should be directed to be deposited by the appellant in Court.

8. The judgment was reserved on 24.8.2001 and a short synopsis was filed by the appellant on 27.8.2001 as we had granted leave to file the same by that date. The respondent No.1 did not file any synopsis till that date but on 4.9.2001 a synopsis was filed referring to 23 judgments though only 3 judgments were cited at the bar. The purpose of a synopsis after conclusion of oral submission is to crystalise and summarise the submissions already advanced at the bar and not to advance new submission and cite more case law through the back door. This was wholly improper.

9. We have considered only such submission and judgments which were cited at the bar.

10. We have considered the respective submissions of the parties. As we have already observed the conduct of the officers of the appellant-Corporation in following up of the matter left much to be desired. However, there is no doubt that the subject matter of the suit is of some importance as it allegedly deal with the land which is being utilised for public purpose. The question whether respondent No.1 is or is not entitled to the land will have to be determined on merits in the suit.

11. Another fact to be kept in mind is that suit had been filed almost on completion of 12 years from the alleged cause of action arising i.e. just before the period of limitation was to expire.

12. Taking into consideration the submissions of learned counsel for the parties, facts and circumstances of the case and the nature of disputes we are of the considered view that in such like case ex parte proceedings against the appellant are liable to be set aside but subject to certain terms of conditions. The provisions of the Code of Civil Procedure, 1908 do not curve out any special considerations for the Govt. or public authority. The expression "sufficient cause" and "good cause" have thus to be read in the context of the matter in question. There can be situations where matter of public interest having wider ramifications are not defendant properly by the Govt. or public authority. The Court has to be more careful in passing decrees in such cases. The appellant has now joined the proceedings and also filed its written statement. The case in these circumstances deserves to be decided on its merits and the appellant can be put to some terms. It is not that by lapse of time any valuable right has accrued in favor of respondent No.1. Inconvenience, if any, caused to respondent No.1 can be compensated in terms of money.

13. The impugned order is thus set aside and the IA Nos. 10933/99 and 10944/99 filed by the appellant are allowed. The written statement filed by the appellant in the suit is taken on record subject to the appellant paying costs of Rs.25,000/-(Rs.15,000/- to respondent No.1 and Rs.10,000/- to the Delhi Legal Services Authority) within a period of two weeks from today. We are not inclined to given the full cost to respondent No.1 in view of its conduct in filing written submission. Since we have examined the original records of the appellant and have prima facie seen the conduct of the officers, we are of the considered view that the costs are liable to be recovered from the delinquent officer(s) of the appellant-Corporation. The appellant is directed to hold an enquiry into the matter and to fix responsibility on the erring officer(s) who have failed to follow up the matter and take appropriate steps in the proceedings. Such enquiry should be completed within a period of three months from today and the costs of Rs.25,000/- recovered from him/them. A copy of the said report of enquiry fixing the responsibility and for recovery of this costs should be filed on record in present proceedings.

14. We are conscious of the fact that the matter in controversy is now almost 11 years old. It is thus necessary to issue certain further directions in respect of the proceedings and trial of the suit. Suit is now quite old and it is just and expedient that the evidence in the suit be recorded on commission. We hereby appoint Mr. A.S. Yadav, Joint Registrar of this Court as a Local Commissioner to record evidence in the matter. Following directions are issued laying down the schedule for the disposal of the suit:

(1) Respondent No.1 will file the replication, if any, within a period of three weeks from today along with any original documents sought to be relied upon by respondent No.1. The appellant shall also file any documents in support of their case within the said period of three weeks. The suit will be listed before the Joint Registrar on 9.10.2001 for admission/denial of documents.

(2) The suit will be listed before learned Single Judge on 29.10.2001 for framing of issues and thereafter on 8.11.2001 before the Joint Registrar/Local Commissioner for direction for recording of evidence on Commission.

(3) Learned Join Registrar will record the evidence as Local Commissioner and shall complete recording of evidence on or before 31st March, 2002. The parties shall fully cooperate with the Local Commissioner for completion of the evidence expeditiously.

(4) The suit will thereafter be listed before learned Single Judge on 16.4.2001 for directions. Keeping in mind the facts and circumstances of the case and the suit being quite old , we would request the learned Single Judge to dispose of the suit as expeditiously as possible.

15. The appeal is allowed in terms of the aforesaid directions.