Delhi High Court
Mohd. Abdul Qadeer & Ors. vs Mohd.Razzak & Ors. on 9 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09.02.2011
+ RSA No. 124/2010, CM Nos.11499/2010 & 11500/2010
MOHD. ABDUL QADEER & ORS. ...........Appellants
Through: Mr.Suresh Sharma, Advocate.
Versus
MOHD.RAZZAK & ORS. ..........Respondents
Through: Mr. Pawan Mathur, Advocate
for DDA.
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 appeal has impugned the judgment and decree dated
22.2.2010 which had reversed the finding of the trial judge dated
11.8.2009 whereby the suit filed by the plaintiff seeking allotment
of the alternate plot and a declaration to the effect that it was the
plaintiff who is entitled to the allotment of alternate plot had been
dismissed. The impugned judgment had decreed the suit of the
plaintiff.
2. The plaintiff had contended that he was an allottee/tenant of
stall No.23, Motor Market, Kabadi Bazar, Jama Maszid, Delhi at the
rent of Rs.7/- per month. He was in actual possession. In 1975-76
the officials of the DDA asked all shopkeepers including the
plaintiff to surrender vacant possession of their respective shops to
get alternate allotment of land in lieu of the same. Plaintiff had
surrendered vacant possession of the land to the MCD and became
entitled to the alternate allotment. DDA allotted a plot measuring
100 sq. yards bearing No.130 in Block D-1, Rewari Line Industrial
Area, Phase-II, Mayapuri, New Delhi to the plaintiff. In March-
April 1983 plaintiff came to know that this allotment in his name
has been cancelled and in fact was allotted to defendant no.2
which was unwarranted as the defendant no.2 was not entitled to
this alternate allotment.
3. The suit was contested by the DDA as also by the defendant
no.2. Issues wee framed. Oral and documentary evidence was led
by the respective parties. Trial Court was of the view that the DDA
had made alternate allotment to defendant no.2 only on the
recommendation of the MCD vide Ex.PW-1/1A; the plaintiff had
never been allotted any alternate plot; the scope of cancelling the
same did not arise. His suit was accordingly dismissed.
4. In appeal, the findings of the trial judge were reversed. This
was after a detailed scrutiny and re-appraisal of both the oral and
documentary evidence. The first appellate Court was of the view
that the allotment in favour of defendant no.2 is illegal; plaintiff is
entitled to the allotment of the alternate plot; by way of mandatory
injunction, defendant no.1/DDA had been directed to restore this
allotment in favour of the plaintiff.
5. This judgment is impugned before this Court. The only
contention raised before this Court is that the question of limitation
has not been gone into by the Courts below; it is contended that
even as per the case of the plaintiff the alternate plot had not
allotted to him in 1975-76; it is difficult to believe that he did not
come to know till March-April 1983 about the alleged fraud
committed by defendant no.2. It is submitted that the suit was
barred by time and it was mandatory upon the courts below to
have framed an issue on this score; provision of Section 3 of
Limitation Act 1963 cast a duty upon the Court to go into this
question which has not been examined. This has raised a
substantial question of law. This is the only argument urged.
6. Perusal of the record shows that no issue on limitation had
been framed; however, before the first Appellate Court this
argument has been dealt with and has been answered as follows:
"Whether the suit came to be filed beyond the period of
Limitation?
Learned counsel for DDA-respondent No.1 has
contended that the letter of allotment having been issued in
the year 1975, present suit filed in the year 1984 is barred
by limitation.
On the other hand, learned counsel for appellants
has contended that this contention is without merit.
Learned counsel has referred to the evidence available on
record and submitted that even if the letter of allotment is
stated to have been issued in the year 1975, plaintiff learnt
about the same in March/April 1983 and took up the matter
with DDA by filing representation whereupon DDA withheld
execution of lease deed in respect of the alternative site,
and as such present suit can safely be held to have been
filed within the period of limitation."
7. The averments made by the plaintiff in the plaint had
specifically pleaded that it was only in March-April, 1983 when he
came to know about the alternate allotment of the defendant no.2
and he took up the matter with the DDA by filing appropriate
representation which is dated 4.5.1983. He had filed documentary
evidence in support of his claim whereas the defendant no.2 had
not produced any such document. The question of limitation has
been adverted to and answered in the impugned judgment.
8. Learned counsel for the appellant has otherwise not assailed
the merits of the findings. Substantial questions of law have been
phrased on page L of the appeal; they read as follows:
"1.Whether the suit filed by the plaintiff (predecessor-in-interest of
the plaintiff herein) on 02.2.1984 for declaration to cancel the
allotment of plot in question and for consequential reliefs was
grossly time barred and ought not to have been entertained in the
first court itself.
2.Whether despite objection in the W.S. the Ld.trial court ought to
have framed an issue on the point of limitation in the first court
itself.
3.Whether the relief of possession claimed by way of an
amendment application U/o 6 Rule17 C.P.C. ought to have been
also declined the limitation having expired for the said relief also
by efflux of time.
4.Whether by entertaining the suit for the reliefs grossly barred by
time the court has done gross miscarriage of justice to the
defendants (present applicants)."
9. The substantial question of law no.1,2 and 4 border on the
question of limitation. Question of limitation has been answered by
adverting to the averments made in the plaint which is supported
by the documentary evidence including the representation dated
4.5.1983 filed by the plaintiff before the DDA that as soon as he
learnt about the alleged allotment in favour of defendant no.2 he
had represented to the DDA. That apart even after the framing of
issues the defendant did not seek any amendment for recasting of
the issues seeking an issue to be framed on the question of
limitation. That apart the appellate Court had answered this
argument which finding calls for no interference. The substantial
question No.3 of law is on the amendment permitted to the plaint.
Admittedly after this order of amendment the same has not been
challenged. No substantial question of law arises on this score
either. Appeal as also pending applications are dismissed in
limine.
INDERMEET KAUR, J.
FEBRUARY 09, 2011
nandan
