Lal Chand Public Charitable Trust vs Delhi Wakf Board & Ors.
2011 Latest Caselaw 6208 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 19.12.2011

+           CM(M) No.2166/2006


LAL CHAND PUBLIC CHARITABLE TRUST    ...........Petitioner
                  Through: Mr.Arvind Nigam Sr. Advocate
                           with    Ms.Mandeep     Kaur,
                           Advocate.

                    Versus

DELHI WAKF BOARD & ORS.                        ..........Respondents
                  Through:          Mr.Sanjeev        Sindhwani,
                                    Advocate for R-1.
                                    Mr.Arjun Harkauli, Advocate
                                    for R-2.
                                    Mr.Umesh Aggarwal, Advocate
                                    for R-6.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Order impugned is the order dated 18.8.2006 which is the

order of the appellate court endorsing the finding of the trial court

dated 23.9.2004 wherein the application filed by the applicant

namely Lal Chand Public Charitable Trust under Order XXII Rule

10 read with Section 151 of the Code of Civil Procedure had been

dismissed. These are two concurrent findings by the two courts

below.

2. At the outset, it is submitted by the learned counsel for the

respondent that this court is sitting in its power of

superintendence under Article 227 of the Constitution of India and

unless and until there is a manifest illegality or gross error which

has led to a miscarriage of justice no interference is called for. It

is in this background that the arguments advanced by the learned

counsel of for the parties have been appreciated.

3. The record shows that the present suit has been filed by the

plaintiff M/s DLF Universal Ltd. against five defendants i.e. Delhi

Wakf Board who had been arrayed as defendant no.1 and

defendants no.2 to 5 who are private parties. This is a suit for

possession. Contention of the plaintiff is that colony namely

Greater Kailash was developed by the predecessor interest of the

plaintiff. A piece of land measuring 1410 sq. yards forming part of

the land of the plaintiff has been encroached upon by defendants

no.2 and 5 through defendant no.1. A decree for possession of the

aforenoted suit property has been prayed for. Written statement

was filed by the defendants. The contention of defendant no.1 is

that he has already got a decree dated 29.01.1983 in his favour

qua the suit land; this decree has remained unchallenged and this

land now falls to his share. Defendants no.2 to 5 have supported

the stand of defendant no.1.

4. Present application under Order XXII Rule 10 of the Code

has been filed by the applicant namely Lal Chand Public

Charitable Trust. This application has been filed on 13.9.1996.

Suit has been filed on 18.11.1982. By virtue of this application, it

has been contended that a settlement deed dated 24.7.1989 had

been arrived at between the MCD and the DLF Universal Ltd; in

terms of this settlement the MCD has become the owner of this

suit land where the applicant i.e. Lal Chand Public Charitable

Trust is a lessee; in this scenario the applicant Lal Chand Public

Charitable Trust has sought prayer for substitution as plaintiff in

place of the present plaintiff; alternate prayer is that Lal Chand

Public Charitable Trust be made a co-plaintiff and the MCD be

also arrayed as a defendant.

5. This contention was hotly contested and has suffered two

adverse orders as noted supra i.e. order dated 23.9.2004 which

was the first order passed by the Civil Judge and subsequent order

of the appellate court dated 18.8.2006 vide which the appellate

court had endorsed the finding of the trial judge dismissing the

application. The vehement argument of the learned counsel for

the applicant is that in terms of this settlement of 24.7.1989

(which was between the DLF Universal Ltd and the MCD) the

right of the applicant has been recognized as a lessee (Clause-I

internal page 3 of the aforenoted settlement); contention being

that this document is an undisputed document; undisputed fact

thus being that Lal Chand Public Charitable Trust is a lessee in

the suit property and as such his interest being in jeopardy; he

has right to be heard in the present case; he has accordingly made

the prayer as noted supra. To support his submission learned

counsel for the petitioner has placed reliance upon a judgment of

the Apex Court reported in 2006(1) SCC 148 Amiteshwar Anand

Vs. Virender Mohan Singh as also another judgment of the Apex

Court reported in (2001) 6 SCC 534 Dhurandhar Prasad Singh Vs.

Jai Prakash University & Ors. that plain language of Rule 10 of

Order 22 does not suggest that leave can be sought by that person

alone upon whom the interest is devolved; contention being that

not only the assigner or the assignee but other persons whose

interest has been effected can file an application under Order 22

Rule 10 of the Code to continue the suit; submission being that

the MCD is not contesting the suit as in another litigation between

the parties it had allowed the case to be dismissed in default; if

this case is not contested and it also suffers the same fate; the

interest of the present petitioner who has been recognized as a

lessee of the MCD will be hazardously effected; even otherwise to

save multiplicity of litigation it would be appropriate that the

present petitioner is permitted to join the proceedings.

6. These contentions have been refuted. Learned counsel for

the respondent has pointed out that the application has been filed

under Order XXII Rule 10 of the Code which necessarily

postulates that there must be an assignment, creation or

devolution of interest during the pendency of the suit pursuant to

which the applicant can seek a prayer under the aforenoted

provision of law. Contention being that even as per the settlement

agreement dated 24.7.1989 the MCD is the successor in interest

of the plaintiff and not the applicant, the applicant i.e. Lal Chand

Public Charitable Trust is only a lessee and in fact this status of

the applicant as a lessee has been recognized right from 1963 i.e.

even before the filing of the present suit; status of the applicant

i.e. Lal Chand Public Charitable Trust has since not changed.

Thus this provision does not come to his aid.

7. This submission of the learned counsel for the respondent

has considerable force. It is an admitted fact that the applicant

Lal Chand Public Charitable Trust was a lessee in the suit

premises, the earlier lessor being the plaintiff M/s DLF Universal

Ltd. which had leased out these premises to the applicant on

31.8.1963. By virtue of the agreement dated 24.7.1989 entered

between the MCD and M/s DLF Universal Ltd the status of the

lessee i.e. the applicant Lal Chand Public Charitable Trust still

remains the same; he continues to be a lessee; the status of the

owner had changed hands; earlier owner was the plaintiff M/s

DLF Universal; now in terms of the settlement dated 24.7.1989

the MCD has become the new owner. Provisions of Order XXII

Rule 10 of the Code in this scenario cannot come to the aid of the

present applicant as Order XXII Rule 10 of the Code specifically

postulates that the suit can be continued by the person upon

whom the plaintiff's interest has devolved which in this case is the

MCD and not the present applicant. There is admittedly no

devolution of interest in favour of the applicant who continues to

be a lessee which status has been given to him since 1963.

8. Even presuming that the second argument of the learned

counsel for the applicant is accepted and the present application

under Order XXII Rule 10 of the Code be treated as an

application under Order 1 Rule 10 of the Code, the prayer made

cannot be granted to the applicant. Admittedly the applicant is

relying upon a settlement dated 24.7.1989 pursuant to which the

status of ownership has been accorded to the MCD. The present

application has been filed on 13.9.1996 i.e. after a lapse of almost

seven years. The contention of the applicant is the reason for

delay is that in this intervening an appeal had been filed which

had reached the Apex Court and was finally disposed of on

06.02.1991. Even as per his own contention this appeal had been

dismissed by the Apex Court on 06.2.1991. At the cost of

repetition this application has been filed on 13.9.1996 i.e. after a

lapse of almost five years even after 06.2.1991. The Apex Court in

JT 2000 (4) SC 391 State of Kerala Vs. Sridevi had observed that

although there is no specified period of limitation for making an

application under Order 1 Rule 10 of the Code, if at all any

application is necessary the same should be filed within three

years as is the limitation prescribed under Article 137 of the

Limitation Act. Applying the aforenoted ratio this application is

hopelessly bared by time.

9. Applicant on no count deserves any relief. Dismissed.

INDERMEET KAUR, J

DECEMBER 19, 2011 nandan