Sh. Ashutosh Gaur vs New Delhi Municipal Council And ...
2006 Latest Caselaw 1671 Del

JUDGMENT

J.P. Singh, J.

1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure is directed against the order dated 24.3.2006 passed by Additional District Judge, Delhi in Regular Civil Appeal against order dated 14.10.2005 passed by Civil Judge, Delhi.

2. Vide order dated 14.10.2005 learned Civil Judge, Delhi dismissed an application under Order IX Rule 4 of the Code of Civil Procedure moved on behalf of the plaintiff for restoration of the suit, dismissed on 19.7.2005 because no explanation was furnished in the application for restoration of the suit. The appeal was also dismissed.

3. I have heard Mr. Babban Kumar Sharma, Advocate learned Counsel for the petitioner.

4. Briefly the facts are that the plaintiff had filed a suit for declaration and perpetual injunction against New Delhi Municipal Council (NDMC) and Director NDMC alleging that he was an allottee of Tehbazari by Chaturvedi Committee constituted by the Supreme Court of India. The plaintiff is carrying on his business of merchant/general trading and watch repairing since 1978-79 on the allotted place in a lane between New Delhi House and Statesman Building along with boundary wall of New Delhi House, Barakhamba Road, New Delhi.

5. It is alleged that the plaintiff was availing the service of telephone connection granted by MTNL at the allotted site since July, 1996 and received the bills of telephone at the address 27, Barakhamba Road, New Delhi.

6. It is averred that on 24.12.2002 NDMC personnel came to the squatting place of the plaintiff and started lifting goods which he was displaying for inviting customers and told him that a notice dated 19.12.2002 was being issued to him. The plaintiff obtained Photostat copy of the show cause notice from the office of defendant n 24.12.2002 itself.

7. The show cause notice reads as under:

i) Permissible trade is not being run as selling of Electronic goods and

repair of watch instead of allotted land i.e., General Merchant.

ii) Occupied the space 8x4 instead of allowed size 6x4.

8. The plaintiff was called upon to send reply within 10 days as to why his allotment be not cancelled. It appears that the plaintiff then filed the above mentioned suit for quashing the show cause notice. Interim stay was granted. It is alleged that on 9.10.2004 the staff of NDMC came and wanted to disconnect the telephone from the place of squatting. Upon this the plaintiff served a legal notice on the NDMC. It is submitted that there is a threat to demolish the installation of phone service.

9. Lastly, it is prayed that plaintiff is enjoying telephone connection to promote his business. It should be declared that he has a right to enjoy a phone service. The defendants should be restrained from removing the telephone or cancelling Tehbazari.

10. Perusal of the order sheet shows that on 19.7.2005 nobody appeared in the court of learned civil judge to pursue the suit. The matter was called again at 11.30 A.M. Still nobody appeared. Then the matter was called at 1.00 P.M. Only counsel for defendants appeared and again the matter was called at 2.30 P.M. repeatedly. Since there was no appearance on behalf of the plaintiff, the suit was dismissed in default.

11. I have perused the order dated 14.10.2005 passed by the learned civil judge on the application under Order IX Rule 4 CPC. It is apparent that the application did not disclose any reason for non appearance nor it was accompanied by an affidavit. Even the unavoidable circumstances have not been explained. Therefore, the learned civil judge, in my view, had no option but to dismiss the application.

12. I have also perused the judgment passed by the first appellate court in the appeal against the above said order dated 14.10.2005. The learned Additional District Judge, Delhi has examined the trial court record, the grounds of appeal and the impugned order dated 14.10.2005 and has opined that no defect or error has been pointed out before the appellate court except that blame has been put upon the advocate for committing some mistake. It was even admitted before the appellate court that the application was not accompanied by the affidavit. Needless to say that applicant-plaintiff was to show sufficient cause for non appearance, but no cause, whatsoever, was shown in this matter. Therefore, in my view, the appeal has been rightly dismissed.

13. The learned Counsel for the petitioner has submitted that father of the counsel had expired, therefore, the counsel had to leave for his native place. There is a plea of some confusion about the chamber of the learned Counsel. I may mention here that neither the name of the learned Counsel with whom the learned Counsel for the plaintiff was allegedly sharing the chamber nor number of the chamber had been disclosed in the grounds of appeal.

14. The learned Counsel has submitted that Tehbazari (squatting) site is the only source of livelihood of the petitioner and the matter should have been restored. This shows that the suit is on the face of it crafted for some other relief but the hidden relief is stay of removal of encroachment, in accordance with law, after service of notice.

15. I may mention that neither MTNL is a party in the suit nor any statutory notices have been given to the authorities. The show cause notice has been given by the NDMC to the petitioner. The proceedings about removal of encroachment are pending before the concerned authority. Evidently the present suit has been filed by way of collateral proceedings only to restrain the said authority from proceeding further. The plaintiff clearly wants to continue his business on alleged encroachment under the garb of a stay from the court on the filmsy ground that the authorities are trying to demolish the installation of phone service. In these days a large number of phone services are very easily available and nobody can be given a right to continue encroachment on a public place under the cover of a telephone connection.

16. Although in this civil revision the main question is whether the trial court should have restored the petition, yet during perusal of the record I have found that this was totally a frivolous, vexatious and apparently collusive matter. Despite service of notice none has appeared for the respondents in this court to oppose the petition.

17. The sum and substance of the suit is that the petitioner appears to have Tehbazari license on land measuring 6x4 on a lane. He has allegedly encroached 2 sq. ft. of land and has changed his business without permission from the authorities because of which the show cause notice was given. Instead of contesting the show cause notice, he rushed to file a suit on the ground that there is threat of demolition of telephone installation and under its garb sought injunction against cancellation of Tehbazari license. Experience shows that such professional litigants move in tandem with the authorities and the supporting staff tells them to have some litigation pending in any court, whether there is stay or no stay, and under its refuge both the sides continue their unlawful activities. Such suits, in my view, should not be entertained. The trial court should first examine the real basis of the suit and see the prayer before issuing summons to the opposite party. Tendencies of abusing the legal system, in my view, should be throttled at the threshold.

18. Considering all the facts and circumstances, I do not find any illegality, gross irregularity or any error in exercise of jurisdiction, in the trial court order or the appellate court judgment so as to invite interference under Section 115 of the Code of Civil Procedure. The petition is, therefore, dismissed.

19. Nothing said herein will tantamount to expression of opinion on the merits of any other matter or proceedings pending between the parties.