Daljit Singh vs New Delhi Municipal Corporation
2010 Latest Caselaw 4960 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment : 27.10.2010

+           R.S.A.No.67/1991 & CM No.1553/1991

DALJIT SINGH                                    ...........Appellant
                   Through:     Mr.Rajesh Gupta, Mr.Harpreet Singh
                                & Mr.Sumit R. Sharma, Advocates.

                   Versus

NEW DELHI MUNICIPAL CORPORATION
                                                ..........Respondent
                   Through:     Mr.Ashutosh Lohia, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

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

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

INDERMEET KAUR, J.(Oral)

    1. This second appeal has impugned the judgment and decree

      dated 21.8.1991 which had reversed the finding of the Trial

      Judge dated 17.5.1983 thereby dismissing the suit of the

      plaintiff Daljit Singh.

    2. Daljit Singh had filed a suit for perpetual injunction against

      the defendant New Delhi Municipal Committee (NDMC)

      stating that the impugned demolition notice dated 14.9.1978

      served upon him on 03.10.1978 was bad in law and the

      defendant be restrained from demolishing his construction

      i.e. as shown in the site plan of flat no.74-G, Sujan Singh

      Park, New Delhi. Contention of the plaintiff was that he had

      raised this construction sometimes in April 1977.

    3. Trial Judge and the impugned judgment had dismissed the

RSA No.67/1991                                              Page 1 of 3
       suit of the plaintiff on the ground that under the provisions of

      Section 225 of Punjab Municipal Act there is a bar to the

      jurisdiction of the Civil Court; the Civil Court could not have

      entertained the suit. The suit was accordingly dismissed.

   4. This is a second appeal.           Substantial question of law had

      been formulated on 26.10.2010, it inter alia reads as follows:

            "Whether the findings in the impugned judgment dated
            28.8.19 qua the notice dated 31.8.1978 and 14.9.1978 is a
            perverse finding, if so, its effect?"


   5. Counsel for the appellant has urged that the impugned

      judgment has not discussed the evidence of the plaintiff; it is

      pointed out that three witnesses have been examined on

      behalf of the plaintiff but there is not whisper of their

      testimony either oral or documentary proved through them

      which has been gone into by the first Appellate Court; a

      valuable right has been lost. Attention has been drawn to the

      impugned judgment.

   6. Perusal of the same shows that this contention of the learned

      counsel for the appellant is borne out from the record. The

      impugned judgment has appreciated the testimony of the

      four witnesses examined on behalf of the defendant as also

      their documentary evidence but there is no mention, let alone

      a discussion about the evidence adduced by the plaintiff.

      Record shows that three witnesses had been examined by the

      plaintiff. Documents had also been proved. None of the oral

      or documentary evidence has been examined by the first

      appeal Court.

   7. There is no doubt to the proposition that a litigant has a

      valuable right of appeal which he can agitate by way of first
RSA No.67/1991                                                   Page 2 of 3
       appeal; the first appeal Court is bound to consider the

      evidence adduced before the Trial Judge both oral and

      documentary; it must appreciate and draw its own conclusion

      based on a reasoned finding.        In the instant case as is

      apparent and evident from the record, the impugned

      judgment has not examined the evidence led by the plaintiff.

      A party has a right to be heard both on question of facts as

      also on law before the first Appeal Court who is bound to

      address itself on all such issues. Since this mandate had not

      been adhered to, it is a fit case where the matter is to be

      remanded back to the first Appeal Court to decide the case

      afresh after discussing the evidence and giving a reasoned

      order.

   8. In 2002    7 SCC 441 Rattan Dev Vs. Pasam Devi         Supreme

      Court had held that where the First Appeal Court had failed

      to consider the valuable material on record, it amounted to a

      failure on its part to discharge its judicial obligation having a

      substantial impact on the rights of the parties raising a

      substantial question of law.

   9. The matter is accordingly remanded back to the District

      Judge, Delhi, who will assign it to the concerned first Appeal

      Court. Parties to appear before Ld.District & Sessions Judge,

      Tis Hazari Courts, Delhi on 09.11.2010 at 10.00 AM.

   10. Records be also sent back.

   11. Appeal as also the pending application is disposed of.



                                           INDERMEET KAUR, J.

OCTOBER 27, 2010 nandan