Smt.Barfo Devi (Decd.) Thr. Lr ... vs D.D.A.
2009 Latest Caselaw 2946 Del

`
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA(OS) 72/2008

                                                  Reserved on: July 23, 2009
                                               Pronounced on: 31st July, 2009


       SMT.BARFO DEVI (DECD.) THR. LR (DECD.) THR. LR ..... Appellant
                    Through Mr.Vipin K. Singh, Advocate.

                   versus


       D.D.A.                                       ...... Respondent
                         Through Mr. Gaurav Sarin, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE VIKRAMAJIT SEN
       HON'BLE MR. JUSTICE V.K. JAIN

       1. Whether Reporters of Local newspapers may be allowed to
          see the Judgment?           Yes

       2. To be referred to the Reporter or not? Yes

       3. Whether the Judgment should be reported in the Digest? Yes

V.K.Jain, J.

RFA (OS) 72/2008

1. This is an Appeal against the judgment dated 8.5.2008, whereby

CS(OS) No.1589/2007, filed by the Appellant, was dismissed on the

grounds that it was time barred, the Plaintiff/Appellant was not in

possession of the suit land, and she had filed this suit to initiate proxy

litigation for others who were in occupation of the land and, therefore,

she had not come to the Court with clean hands.

RFA (OS)72/2008

2. The Plaintiff/Appellant filed a suit for permanent injunction

claiming to be in possession of land comprising Khasra No.843/5

admeasuring 2 bighas in Village Mahipalpur. According to her, the

suit land was given to her by Gaon Sabha, initially for a period of five

years with effect from 26.7.1997. The lease was further extended for

a term of five years. The lease was not extended thereafter. The

Plaintiff/Appellant claims that she continued in possession and

became an Aasami of Gaon Sabha and the property was in her

peaceful possession and occupation since then. The proceedings were

initiated under Section 86A of Delhi Land Reforms Act, against the

son of the Plaintiff/Appellant, in which ejectment Order came to be

passed by Revenue Assistant on 6.10.1997. In a Revision Petition filed

by the Plaintiff/Appellant before the Financial Commissioner, the

matter was remanded back to the Revenue Assistant, who passed a

fresh order under Section 86A of Delhi Land Reforms Act on

11.4.2007. A Revision Petition was filed by the son of the

Plaintiff/Appellant against the ejectment Order dated 11.4.2007 which

was dismissed by the Financial Commissioner on 24.8.2007. The suit

was thereafter filed claiming that some officials of the Defendant had

come to the suit land and informed the Plaintiff/Appellant that the

land belongs to them, being Government land, and they had to carve

out a road through the same.

RFA (OS)72/2008

3. The Defendant filed Written Statement contesting the suit

and alleged that the Plaintiff had sold some portions of the suit land,

totaling an area of about 700 sq. yards, over which construction has

been raised by the occupants, whereas the remaining portions are

lying vacant. It was further alleged that land in question came to be

vested in the Government by virtue of Section 150(3)(A) of Delhi Land

Reforms Act and in exercise of the powers conferred upon it by

Section 22(1) of Delhi Development Act, the Central Government,

acting through the Lieutenant Governor of Delhi, had placed the same

at the disposal of DDA. It has also been stated in the Written

Statement that Khasra No.843/5 is coming under the alignment of 30

metre proposed road from NH-8 to Mehrauli Mahipalpur road.

4. A suit for perpetual injunction is governed by Article 113

of Limitation Act and, therefore, the prescribed period of limitation is

three years from the date when the right to sue accrued. For the

right to sue to accrue, the right sought to be vindicated in the suit

should have already come into existence and there should be an

infringement of it or at least a threat to infringe the same. It implies

that the Plaintiff has a substantive and exclusive right claimed by

him/her and there is an invasion or a threat of invasion of that right.

When the right to sue accrues, depends to a larger extent, on the facts

and circumstances of a particular case, keeping in view the relief

RFA (OS)72/2008

sought in that case. Generally the right to sue accrues, when right

arises to prosecute to obtain relief by legal means.

5. It is an admitted case that the proceedings against Shri

Davinder Singh, son of the deceased Appellant, under Section 86A of

Delhi Land Reforms Act, for his ejectment were initiated in the year

1994. The proceedings resulted in an ejectment Order being passed

by the Revenue Assistant on 6.10.1997. A perusal of the Order dated

11.4.2007 passed by the Revenue Assistant as well as the Order

passed by the Financial Commissioner on 24.8.2007 clearly shows

that Gaon Sabha had claimed before the Revenue Court that neither

the deceased Appellant nor her son had any right in the suit land, as

the land in question was never allotted as per the prescribed

procedure, since no resolution was passed and no approval was taken

and that they had encroached upon the land immediately prior to

initiation of the ejectment proceedings. It is, therefore, obvious that

Gaon Sabha had consistently been denying the status claimed by the

Appellant and had been insisting that she as well as her son were

trespassers. Therefore, as soon as the proceedings for ejectment of

the son of the deceased Appellant were initiated before the Revenue

Assistant and the plea taken by him was contested by Gaon Sabha by

denying the status claimed by him and taking the stand that no proper

lease deed had been executed so as to confer status of an Aasami on

him/his mother, the Appellant came to know that their right to

RFA (OS)72/2008

continue in occupation of the suit land was being disputed. Therefore,

right to sue accrued to her at that time to seek injunction against her

dispossession. In any case, as soon as ejectment Order was passed by

the Revenue Assistant, the deceased Appellant came to know that she

was liable to be ejected from the land in question in execution of the

Order passed by the Revenue Assistant. Therefore, even if a liberal

view is taken, the right to sue accrued to the Appellant on passing of

first ejectment Order dated 6.10.1997. This is not the case of the

Appellant that she was unaware the Order of the ejectment passed by

the Revenue Assistant. In fact, it was the Appellant who filed a

Revision Petition before the Financial Commissioner being case

No.266/1997 CA on 10.10.1997, challenging the Order passed by the

Revenue Assistant on 6.10.1997 ordering ejectment of her son Shri

Devender Singh, on the ground that he had encroached the Gaon

Sabha land.

6. It is true that the order passed by the Revenue Assistant

on 6.10.1997 was set aside by the Financial Commissioner on

27.3.1998 and a fresh order of ejectment came to be passed on

11.4.2007. That, however, would not give a fresh starting point of

limitation to the Appellant, as far as the relief of injunction is

concerned. Once Gaon Sabha denied the claim of the Appellant and

took the stand that she/her son had encroached upon Gaon Sabha

land, period of limitation started running, as far as the relief of

RFA (OS)72/2008

injunction is concerned. Therefore, she was required to file the suit

within three years from the date of ejectment Order dated 6.10.1997.

7. It was contended by learned counsel for the Appellant that Rule

170 of Delhi Land Reforms Act, 1954 gives right to the Appellant to

institute a suit to establish the right claimed by her when an order of

ejectment is passed and, therefore, she could have filed the suit within

three years from the date of passing of ejectment order dated

11.4.2007. Even if we assume, as is contended by learned counsel for

the Appellant, that the right to file the suit, granted under Rule 170(6)

of Delhi Land Reforms Rules arises only when the Order dated

11.4.2007 was passed and not when the first ejectment order was

passed on 6.10.1997, that would be of no help to the Appellant, as, in

our opinion, the suit envisaged under Rule 170(6) of Delhi Land

Reforms Rules is a title suit for declaration of the right claimed by the

aggrieved party and not a suit for grant of injunction on apprehension

of invasion of the right claimed by her. This suit not being a title suit,

it cannot be said that the suit filed by the Plaintiff/Appellant was not

barred by limitation.

8. There is yet another reason, we would not like to interfere

with the Order passed by the learned Single Judge. Emanating from

equity jurisdiction, injunction is a discretionary relief. This is made

amply clear also by Section 38 of Specific Relief Act which specifically

provides that a perpetual injunction may be granted to the plaintiff.

RFA (OS)72/2008

The Court is not bound to grant injunction merely because it is lawful

to do so. Even if the plaintiff is able to make out violation of an

alleged right, the Court may still refuse to protect him, if it is satisfied

that looking into his conduct, it will not be equitable to exercise the

discretion in his favour. No doubt, discretion when applied to a Court

of Law, is to be based on sound principles of law and cannot be

exercised in an arbitrary manner and must be governed by Rules. The

discretion has to be exercised in such a manner that the Judge has

satisfaction not only of having decided a case according to law but

also of having delivered justice to the parties. The conduct of a party

seeking injunction is an important factor to be taken into

consideration by the Court while exercising its discretion in a matter.

The Court relies upon the pleadings set out and documents filed

before it, in forming the requisite opinion and, therefore, it naturally

expects the injunction seeker to disclose all the material and relevant

facts which would enable the Court to form a correct opinion and

exercise a sound judicial discretion. If a material fact having bearing

on the matter in controversy, which was in the knowledge of the

plaintiff has been withheld, he would be disentitled to grant of

injunction in his favour. The Court would then rather not enter into

merits of the case and may deny relief to him on this ground alone.

The plaintiff in an injunction suit must come to the court with clean

RFA (OS)72/2008

hands and do nothing which is not expected from an honest, upright

and deserving litigant.

9. Admittedly, the Revision Petition filed by the Appellant on

27.3.1998 against the Order of the Revenue Assistant dated 11.4.2007

was dismissed by the Financial Commissioner vide Order dated

24.8.2007. A perusal of the Plaint would show that though it purports

to be typed on 24.8.2007, the date on which the Order was passed by

the Financial Commissioner, the suit was actually filed, for the first

time, on 25.8.2007. In fact the Affidavit of Attorney of the Appellant

has been sworn only on 27.8.2007. The Order passed by the Financial

Commissioner on 24.8.2007 has not been disclosed in the Plaint. This

is not the case of the Appellant, in the Replication filed by her, that

though the Order was passed on 24.8.2007, it came to her knowledge

only after filing of the suit. The plea taken by her in the Replication is

that the Order itself was passed by the Financial Commissioner during

the pendency of the Suit. This plea is patently incorrect as is evident

from the date of the Order itself. It appears to us that the

Plaintiff/Appellant did not want to disclose the fact that the Revision

Petition, filed by her against the Order passed by the Revenue

Assistant dated 11.4.2007 had been dismissed on 24.8.2007. In fact,

filing of the suit on 25.8.2007 by itself indicates that when the

Plaintiff/Appellant could not get any relief from the Financial

Commissioner and her Revision Petition was dismissed on 24.8.2007,

RFA (OS)72/2008

she filed this suit on 25.8.2007, though the date of preparation of the

Plaint was shown as 24.8.2007. This view stands fortified from the

fact that the Appellant affixed stamp paper of Rs.3/- only on the plaint

and bulk of the Court Fee was purchased only on 30.8.2007.

10. We are, therefore, of the view that while filing this suit,

the Plaintiff/Appellant concealed a material fact which was very much

in her knowledge at the time of filing the suit. Taking the conduct of

Plaintiff/Appellant into consideration, we feel that she has not come to

the Court with clean hands as she has not disclosed all the material

facts and, therefore, is not entitled to discretionary and equitable

relief of injunction.

11. One more reason we can not grant injunction to the

Appellant is availability of an equally efficacious remedy to her.

Section 185 of Delhi Land Reforms Act read with its Schedule,

provides an Appeal to the Deputy Commissioner against the ejectment

Order passed by the Revenue Assistant under Section 86A of the Act.

Section 41(h) of Specific Relief Act provides that an injunction cannot

be granted, when equally efficacious relief can certainly be obtained

by any other usual mode of proceedings except in case of breach of

trust. The availability of an effective remedy, in a different forum,

takes away the right of injunction. Admittedly, the Appellant did not

file any Appeal against the Order dated 11.4.2007 passed by the

Revenue Assistant though she challenged it by filing a Revision

RFA (OS)72/2008

Petition before the Financial Commissioner. Since the remedy of the

Appeal was still open to the Appellant even after dismissal of the

Revision Petition filed by her, she should have availed that remedy

instead of rushing to the Civil Court.

For the reason given in the preceding paragraphs, we find no

merit in the Appeal and same is hereby dismissed.

(V.K. JAIN) JUDGE

(VIKRAMAJIT SEN) JUDGE

July 31, 2009.

sn

RFA (OS)72/2008