Tek Chand Th Lrs vs Babuddin Through Lrs & Ors
2012 Latest Caselaw 3356 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment:18.05.2012

+           CM(M) No.592/2012 & CM No.9071-72/2012

      TEK CHAND TH LR'S                      ..... Petitioner
                   Through:           Mr.Mahabir Singh, Sr. Adv. with
                                      Mr.Satpal Singh, Adv.

                    versus

      BABUDDIN THROUGH L.R.'S & ORS ..... Respondents
                  Through: Nemo.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Petitioner is aggrieved by the finding contained in the impugned

judgment dated 03.02.2012 whereby the objections filed by the

petitioner under Section 47 of the Code of the Civil Procedure

(hereinafter referred to as the Code) had been dismissed.

2 Record shows that that a suit for permanent injunction had been

filed by one Babuddin against Tek Chand seeking a restraint order

against the defendant from encroaching/tress passing/interfering in the

peaceful use and occupation of the roof of shop No.27, Khasra

NO.861/346 situated at Summan Bazar, Jangpura, New Delhi.

Contention of the plaintiff was that the father of the plaintiff namely one

Mohd. Bux had purchased the suit property from the defendant for a

consideration of Rs.7000/- by way of a registered sale deed dated

15.6.1970 and the plaintiff is in possession of the suit premises.

Defendant is creating unnecessary hurdles and in fact had started raising

the wall on the roof of the said premises for which a complaint was also

lodged by the plaintiff but thereafter the matter has aggravated; the suit

was accordingly filed.

3 Written statement was filed by the defendant/Tek Chand. Suit

was contested. On 03.12.1999 the suit of the plaintiff was decreed and

the defendant was restrained from encroaching/trespassing or interfering

in the suit land of the plaintiff. The appeal filed against this judgment

and decree dated 03.12.1999 was dismissed on 31.01.2001; execution

proceedings were thereafter filed by the plaintiff on 18.3.2005; on

23.4.1999 Dhuli Chand son of Tek Chand had in fact appeared before

the trial court i.e. during the pendency of the suit and as such the

submission now vehemently urged by the learned counsel for the

objector/petitioner that the legal heirs of the deceased Tek Chand were

not aware of the suit proceedings and the decree in the suit had been

obtained by fraud is clearly a false averment.

4 Record speaks otherwise. Record speaks that on 23.4.1999 Dhuli

Chand had in fact appeared before the trial court. Written statement was

also filed in the trial court. It is not in dispute that an appeal against the

judgment and decree dated 03.12.1999 was filed on 26.4.2000 which

was dismissed on 31.1.2001. The submission of the petitioner/objector

that the present petitioner learnt about the aforenoted decree having been

obtained against them only in 2005 is clearly a false and a wrong

submission. On a specific query put to the learned counsel for the

petitioner on this count he has little explanation as the facts as noted

supra are admitted facts. The averments made in the objection petition

under Section 47 of the Code have also been perused. The contention of

the petitioner that it was only on 13.05.1995 that the objector learned

about the decree dated 13.12.1999 is clearly a false submission. Record

as noted supra clearly shows that the son of Tek Chand namely Dhuli

Chand has appeared in the trial Court as way back as on 23.04.1999;

thus they were fully aware of the suit proceedings. The ex-parte

judgment and decree had also been contested by filing an appeal which

appeal was filed on 26.04.2000; how the objector/petitioner had the

audacity to make a statement in his application under Section 47 of the

Code that he learnt about this decree only in May, 2005 when his

advocate had inspected the court file which is not only a false and

incorrect statement but has in fact amounted to a perjury committed by

the petitioner; he is making a false statement in the court proceedings

when the record clearly speaks otherwise. This litigation seems to be a

classical example of an abuse of the process of the court. The objections

in the aforenoted background were rightly dismissed. Impugned order

calls for no interference. This petition being an abuse of the process of

the court and wastage of its precious time is dismissed with cost of

Rs.25,000/-.

INDERMEET KAUR, J MAY 18, 2012 nandan