Pritam Singh vs Delhi Development Authority
2003 Latest Caselaw 876 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the judgment and order dated 8th May, 2001 of the Additional District Judge, Delhi in RCA No. 16/2001, whereby the learned Judge has dismissed the appeal against the judgment and decree of the Trial Court dated 5th February, 2001, dismissing the suit. The Appellate Court in its judgment framed issues, namely, Issue No. 1 - whether the plaintiff is having 50% share in the suit premises?

 Issue     No. 2 -   Whether   the plaintiff has violated the terms and condition of the allotment?  and  Issue  No.  3  - whether the suit of the plaintiff is bad for want of notice under Section 53-B of the DD Act.  The Appellate Court returned a finding that no valid notice had been given.   
 

 2. The appellant had approached the First Appellate Court on grounds inter alia that -:  

"......the Learned Trial Court erroneously found that issue No. 2 and 3 against the plaintiffs/appellants. It has been contended that the Learned Trial Court had ignored the fact that the suit had initially been filed as the suit for injunction and even without a notice under Section 53-B(3) of the DD Act. The Suit for injunction was maintainable and that the suit had been amended after legal notice dated 30.7.88 had been issued to the DDA and the suit had been amended with permission of the court."

3. Counsel for the appellant argues before me that due to the fact that the Delhi Development Authority had cancelled the allotment there was an apprehension that possession of the suit- property would be taken by the Delhi Development Authority, which then necessitated the appellant to file the suit for permanent injunction. This suit was filed on 15th July, 1988. During the pendency of the suit notice dated 30th July, 1988 , under Section 53-B of the Delhi Development Act, was served on the respondent and well after the statutory time, application for amendment dated 4th November, 1988, was moved. This Amendment Application, to allow the prayer for declaration that the Cancellation Order is bad, was added. The aforesaid Amendment Application was allowed vide order dated 15th October, 1990. The court having allowed the Amendment Application, the Delhi Development Authority could not turn around and say it had no prior notice of the amendment and, therefore, the suit was bad - as violative of the bar under Section 53-B .

4. The learned counsel draws my attention to judgment of the Punjab and Haryana High Court, reported in Raghvir Parshad etc. Vs. Chet Ram, Current Law Journal (vol.9), 1971, 612, as also the judgment of the High Court of Judicature of Madras, in Ramachandran Chettiar Vs. G. Lakshminarayanaswami Chettiar, Current Law Journal(Vol 2), 1976, 107. Learned counsel for the Delhi Development Authority on the other hand, submits that once a suit has been filed for injunction, the same, cannot be converted to a suit for declaration by way of an amendment, after serving a notice under Section 53-B of the DD Act. Further that the amendment would be retrospective to the period when the suit had been filed, namely, 15th July, 1988. At that time no valid notice having been given the suit was rightly dismissed.

5. I have heard learned counsel for the parties and gone through the judgment under challenge. I am of the opinion that a suit for injunction having been filed in accordance with the exemption permitted under Section 53-B(3) , an amendment allowed after valid service of notice under Section 53-B would not debar the suit as being violative of bar under Section 53-B. The amendment was allowed after the notice had been served on the Delhi Development Authority and the Delhi Development Authority was well aware of the proceedings. It cannot be said that the Delhi Development Authority was unaware or that it had suffered on account of lack of notice. Once a valid notice has been served on the Delhi Development Authority and the suit allowed to be amended by the court the same cannot be dismissed merely because, in the first instance, the suit for injunction was instituted.

6. The facts and circumstances of the case show that although in the first instance suit was filed for injunction as permitted under Section 53-B(3), thereafter a valid notice served on the Delhi Development Authority under Section 53(b), amendment to the suit allowed well after the period prescribed under Section 53-B(3), would not operate retrospectively from the time when the initial suit was filed but from the date when the application for amendment was filed, therefore, the suit for injunction and declaration was maintainable.

7. Having so held, I set-aside the judgment and decree dated 8th May, 2001 of the Additional District Judge in RCA No. 16/2001 as also the judgment and decree dated 5th February, 2001 of the Civil Judge in Suit No. 715/1988 and declare the order of cancellation of allotment of lease, dated 27th June, 1988, null and void. The suit is decreed accordingly. Decree-sheet be prepared.

8. RSA 87/2001 is allowed. No order as to costs.