I.P. Power Generation Company ... vs Siddhartha Extension Resident ...
2013 Latest Caselaw 5683 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 9th December, 2013
+      RFA 631/2010, CM No.15713/2010 (for condonation of 88 days
       delay in refilling) & CM No.15714/2010 (for condonation of 22
       days delay in filing the appeal).

       I.P. POWER GENERATION COMPANY LTD      ..... Appellant
                     Through: Mr. S.K. Dubey & Ms. Anandi
                              Mishra, Advs.
                                   versus

    SIDDHARTHA EXTENSION RESIDENT WELFARE
    ASSOCIATION & ORS                           .... Respondents
                  Through: Mr. L.K. Garg, Adv. for R-1.
                           Ms. Manika Tripathy & Mr. Ashutosh
                           Kaushik for, Adv. for DDA.
                           Mr. R.G. Srivastava, Adv. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 8 th October, 2009

of the Court of the Addl. District Judge, Tis Hazari Courts, Delhi of

dismissal of Suit No.745/08/01 filed by the predecessor-in-interest of the

appellant, consequent to an order of rejection of plaint on an application by

the respondent/defendant no.1 under Order 7 Rule 11 of the CPC.

2. The appeal was accompanied with applications for condonation of 22

days delay in filing and 88 days delay in re-filing the appeal. Notice of the

appeal and applications was issued and the matter adjourned from time to

time. Replies to the applications for condonation of delay have been filed by

the respondent/defendant no.1 only and to which a rejoinder has been filed

by the appellant/plaintiff. The respondent/defendant no.2 DDA, the

respondent no.3 Delhi Urban Arts Commission and the respondent no.4

MCD have not filed any replies. Respondent No.2 DDA though has filed a

counter affidavit to the appeal.

3. The suit from which the appeal arises was filed on 21 st May, 2001 by

the then Delhi Vidyut Board (DVB), being the predecessor in interest of the

appellant, pleading:-

(a). that the respondent/defendant no.1 is a Residents Welfare

Association of Pocket-A, Sidhartha Extension which is a colony

just at the back of the DVB colony in Sidhartha Extension;

(b). that the suit, for the reliefs of declaration and other

consequential reliefs was being filed as the

respondent/defendant no.1 was casting a cloud on the right of

the appellant/plaintiff to it's immovable property;

(c) that the appellant/plaintiff was, in the years 1967-1968, for

consideration, allotted by the Land & Building Department of

the then Delhi Administration a piece of land admeasuring 16

acres in Sarai Kale Khan and was put into possession thereof

and is the owner thereof.

(d). that the said land was allotted for construction of staff quarters;

(e). that the appellant/plaintiff got the layout plan approved and

constructed 592 quarters for the members of its staff; necessary

public utility services by way of roads, parks etc. were also

provided as per the layout plant sanctioned in February, 1980

by the respondent/defendant no.2 DDA and by the

respondent/defendant no.3 Delhi Urban Arts Commission on

21st September, 1979;

(f). that as the respondent/defendant no.2 DDA had not constructed

any road outside as per the Master Plan, the appellant/plaintiff

had provided access to it's colony by constructing its own road

within the plot and since then this road was under the use of the

appellant/plaintiff as an approach road, having a pucca

boundary wall;

(g). that the staff members along with their families of the

appellant/plaintiff were residing in the flats so constructed and

for security reasons a six feet high boundary wall on the outer

periphery of the land so allotted to the appellant/plaintiff with

necessary gate for ingress and egress had also been constructed;

(h). that in or about the year 1986-87 the respondent/defendant no.2

DDA constructed its own flats under the SFS Scheme in

Sidhartha Extension and these flats were built in the Sarai Kale

Khan area just behind the DVB colony;

(i). according to the Zonal Master Plan, a separate road was

earmarked for giving access to appellant/plaintiff's colony and

Sunlight Colony;

(j). that the respondent/defendant no.2 DDA had provided access to

Pocket-A/Block-A of the said SFS flats from the pathway

measuring around 60 feet wide which was to pass by the side of

adjoining nallah as well as North/East boundary of the DVB

colony;

(k). however in the course of time, a part of this land on which the

said road was to be constructed was encroached upon and as a

result whereof the said road could not be constructed;

(l). that the residents of Block-A of Sidhartha Extension started

claiming access from the Ring Road;

(m). that the respondent/defendant no.2 DDA, in order to cover its

own lapse started claiming that the internal road of the

appellant/plaintiff's colony was the access road for Block-A of

Sidhartha Extension from Ring Road;

(n). that the appellant/plaintiff resisted such efforts of the

respondent/defendant no.2 DDA and though various meetings

were held and surveys conducted but the appellant/plaintiff

stuck to its stand that the internal road of its colony could not be

permitted to be a public pathway for access to another colony

i.e. Block-A of Sidhartha Extension;

(o). that though the respondent/defendant no.1 had filed a suit in

this regard but the said suit was ultimately withdrawn;

(p). that the respondent/defendant no.1 had also filed a writ petition

No.786/1992 in this regard in this Court but which was also

dismissed as withdrawn;

(q). that the respondent/defendant no.1 thereafter filed a fresh writ

petition being CWP 5963/1998 in which the counsel for the

appellant/plaintiff did not file the counter affidavit in time and

as a consequence whereof the writ petition was decided ex parte

against the appellant/plaintiff;

(r). that against the said ex parte order, by virtue of which the

internal road of the appellant/plaintiff's colony was declared to

be a feeder road for Block-A of Sidhartha Extension, the

appellant/plaintiff filed LPA No.14/2000 in which the ex parte

judgment in CWP No.5963/1998 was set aside and the matter

remanded to the Single Judge; and,

(s). that it was the stand of the appellant/plaintiff in the said writ

petition which was still pending at the time of institution of the

suit that the same involved disputed questions of fact which

could not be adjudicated without permitting the parties to

adduce their respective evidences.

accordingly, the reliefs of declaration that the subject road was the

internal road of the colony of the appellant/plaintiff and not a public road

and of injunction restraining the respondents/defendants from using and

allowing use of the said internal road as a public road were claimed.

4. The said suit was entertained and remained pending in this Court till

the year 2003 when on account of changes in pecuniary jurisdiction, it was

transferred to the Court of the District Judge.

5. The respondent/defendant no.1 on 7th September, 2005 filed the

application under Order 7 Rule 11 of the CPC on the ground (i) that in a

high level meeting held on 16th July, 1990 between the appellant/plaintiff

and the respondent/defendant no.2 DDA, the dispute was sorted out and it

was resolved that the missing link between the appellant/plaintiff's colony

and Block-A of Sidhartha Extension be connected by removing the wall and

in pursuance thereof the said wall around the colony of the

appellant/plaintiff at the said point was demolished; (ii) that the dispute

was between the appellant/plaintiff and the respondent/defendant no.2 DDA

which were two departments of the Government of India and ought not be

allowed to be litigated in the Courts; and, (iii) that the notice under Section

53B of Delhi Development Act, 1957 and Section 478 of the Delhi

Municipal Corporation Act, 1957, had not been served.

6. The learned Addl. District Judge has allowed the said application of

the respondent/defendant no.1 and rejected the plaint,

finding/observing/holding:-

(i) that as per the dicta of the Supreme Court in ONGC Vs.

Collector of Central Excise 1995 Suppl. (4) SCC 541 and

Collector of Central Excise, Calcutta Vs. Jeesop and Co.

(1999) 9 SCC 181, the controversy between the

appellant/plaintiff and the respondent/defendant No.1, both

being government departments, stood resolved in the meeting

of the High Powered Committee (HPC) of the two government

departments and the matter was not cleared for litigation and

thus no cause of action for the suit survived to the

appellant/plaintiff;

(ii) that as per the R.K. Aneja Vs. Delhi Development Authority 61

(1996) DLT 757, the Court is debarred from entertaining a suit

instituted without complying with the provision of mandatory

notice under Section 53 B supra, on the analogy of similar

provision of Section 80 CPC; and,

(iii) that the matter had been resolved between the appellant/plaintiff

and the respondent/defendant no.2 DDA by mutual consultation

and no cause of action survived to the appellant/plaintiff.

7. The counsel for the respondent/defendant no.1, as aforesaid, has

opposed the applications for condonation of delay.

8. The appellant/plaintiff seeks condonation of 22 days delay in filing

the appeal merely by pleading that the delay is neither intentional nor

deliberate and that the appellant/plaintiff has a strong prima facie case in its

favour and will suffer irreparable loss and injury if the delay is not

condoned. The reason given for condonation of 88 days delay in re-filing the

appeal is the ill health of the associate Advocate of the Advocate for the

appellant/plaintiff and whose affidavit is also filed in support of the

application.

9. The counsel for the respondent/defendant no.1 has argued that no

reason less sufficient cause has been given for condonation of 22 days delay

in filing the appeal. Qua the delay in re-filing, it is contended that even

though the appeal as filed was defective and was returned but was repeatedly

filed without removing the objections and which shows negligence on the

part of the appellant/plaintiff and which ought not to be condoned. Reliance

is placed on J.L. Gugnani Vs. Krishna Estate 184 (2011) DLT 410 in this

regard.

10. The settled position in law (See Vedabai Vs. Shantaram Baburao

Patil (2001) 9 SCC 106, Improvement Trust, Ludhiana Vs. Ujagar Singh

(2010) 6 SCC 786, G. Ramegouda Vs. Special Land Acquisition Officer,

Bangalore (1988) 2 SCC 142 and Directorate General of Civil Aviation Vs.

M/s. Global Vectra Helicorp Ltd. MANU/DE/0156/2013) however is of

adopting a liberal policy in condoning the delays. The conduct of the

appellant/plaintiff in the present case is not found to be of such gross

negligence so as to disentitle the appellant/plaintiff from the indulgence

which the Courts have repeatedly granted in such matters. Moreover, it

cannot be lost sight of that the issue involved in the suit from which this

appeal arises pertain to valuable immovable property and it is not deemed

appropriate to allow such rights to be defeated on mere technicalities. It

cannot also be lost sight of that the appeal has now remained pending in this

Court for nearly three years and the contesting respondent/defendant no.2

DDA has also filed counter affidavit thereto. Moreover, none of other

respondents/defendants than the respondent/defendant no.1 have opposed the

application. The counsel for the respondent/defendant no.2 through whom

the respondent/defendant no.1 derives right, though appearing, has not

opposed the applications. The delay in re-filing is not subject to the rigorous

tests which may be applied in excusing delay in filing, as held in Indian

Statistical Institute Vs. Associate Builders AIR 1971 SC 335, Ansal

Properties and Infrastructure Ltd. Vs. Col. Y.L. Sud MANU/DE/3166/2009

and S.R. Kulkarni Vs. Birla VXL Ltd. MANU/DE/0496/1998 (DB). The

counsel for the appellant/plaintiff in this regard has invited attention to A.

Nawab John Vs. V.N. Subramaniyam (2012) 7 SCC 738 and Mannan Lal

Vs. Mst. Chhotaka Bibi 1970 (1) SCC 769 laying down that the time for

payment of Court Fees can be extended subsequently also.

11. Thus, the delay in filing and re-filing the appeal is condoned and the

counsels have been heard on the merits of the appeal.

12. The fate of Civil Writ Petition No. 5963/1998 which was remanded

vide order dated 26th July, 2000 in LPA No.14/2000 has been enquired. It is

informed that the said writ petition was disposed of vide order dated 7 th

December, 2001, in view of the suit from which this appeal arises having

been filed and making an interim arrangement between the parties.

13. It is next enquired from the counsel for the respondent/defendant no.1

that what is there to show that the dispute had been resolved between

appellant/plaintiff and the respondent/defendant no.2 DDA.

14. The counsel for the respondent no.1 draws attention to the written

statement of the respondent/defendant no.1 in this regard and which in turn

refers to the counter affidavit of the respondent/defendant no.2 DDA in writ

petition No.5963/1998 stating as under:-

"2. The Delhi Development Authority as per approved scheme designed a road link of 13.5 meters from the Ring Road to Sidhartha Extension Pocket A passing by the side of DESU colony at Sarai Kale Khan.

3. This road link was obstructed by Respondent No.2 officials and some other residents of DESU colony.

4. Since the matter related to the two departments, namely Delhi Development Authority and Delhi Electric Supply Undertaking controlled by the state, high level meeting was held on 16.7.90 to sort out this problem. It was chaired by Shri C. Noroha Vice-

Chairman, DDA. The meeting was attended by following officers of the DESU;

                  (i)     Shri S.P. Chopra, Superintending Engineer
                          (Plg) I,
                  (ii)    Shri A.C. Bhatnagar
                  (iii)   Shri S.C. Chattopadhyay, Executive
                          Engineer
                  (iv)    Shri H.T. Krishna Murti, Executive Engineer
                  (v)     Shri D.K. Suri, Executive Engineer (Plg)I

The item of the removal of obstruction to the above road link was duly mentioned in the agenda in the following words-

"Item No.2:

Sub: Road link for Pocket-A Sidhartha Extension, from DESU colony to Ring Road R.3 (4)/90-MP. The residents of Sidhartha Extn, Pocket A are representing for long for a passage through DESU colony to Ring Road and they have to go to their colony through a long road from Pocket B or through Sun Light Colony. These approaches are very long. A majority of the residents of DESU colony have agreed for a link road between their colony and Pocket A Sidhartha Extn. So a proper road can be laid as per plan laid on the table (D-

18). A 13.50m road already passes through DESU colony and only a small stretch is required to be built to connect Sidhartha Extn. Pocket-A, with DESU colony road of 13.50m. This Road will lead to Ring Road and will meet the need of the residents of Sidhartha Extn. Pocket A. The matter is placed before the Technical Committee for approval of construction of a small portion of road as extension of 13.50m road of DESU colony."

After discussion the following minutes were recorded of the decision unanimously taken in the meeting-

"Item No.2"

Sub: Road link for Pocket-A, Sidhartha Extn., from DESU colony to Ring Road, F.3(4)/90-MP.

Decision : Technical Committee examined the proposal for connecting the missing link between 13.5 m wide DESU colony road and Sidhartha Extn., Pocket A, the Technical Committee found the proposal technically feasible and approved the same and desired that this may be constructed by the DDA."

5. The DDA was requested by the above said committee to execute the above decision. In pursuance of the above decision the DDA removed the obstructions on 18.2.91 and constructed the said road."

15. There is however on the Trial Court record a replication filed by the

appellant/plaintiff to the said written statement of the respondent/defendant

no.1 and in which the appellant/plaintiff had denied any settlement with the

respondent/defendant no.2 DDA.

16. A perusal of the Trial Court record shows that no written statement

was filed by the respondent/defendant no.2 DDA to the suit and in fact its

right to file the written statement was closed.

17. Finding, that the plea taken by the respondent/defendant no.1 of the

cause of action having not survived owing to a settlement having been

reached between the appellant/plaintiff and the respondent/defendant no.2

DDA was based on the basis of a plea taken by the respondent/defendant

no.2 DDA not in the suit from which this appeal arises but in the earlier writ

petition being Civil Writ No. 5963/1998, it has been enquired from the

counsel for the respondent/defendant no.1 that if that was the admitted

position, why were the writ petition and the LPA preferred thereagainst not

disposed of in terms of the said settlement and why was the writ petition

disposed of leaving the controversy to be adjudicated in the suit from which

this appeal arises.

18. No answer whatsoever has been forthcoming from the counsel for the

respondent/defendant no.1.

19. I am of the view that the learned Addl. District Judge has erred in

concluding that no cause of action for the suit existed in favour of the

appellant/plaintiff for the reason of a settlement having been arrived at

between the appellant/plaintiff and the respondent/defendant no.2 DDA,

when the said plea itself of the respondent/defendant no.1 was controverted

by the appellant/plaintiff and when there was no basis therefor except for a

unilateral averment of the respondent/defendant no.2 DDA in the counter

affidavit filed in an earlier proceeding and in which proceeding the said plea

was not accepted. Had there been any merit in such a plea, the writ petition

and the LPA arising thereform would have been disposed of on those terms

and the parties would not have been relegated to the suit. I have also

enquired from the counsel for the respondent/defendant no.1 whether there

exists on record the minutes of the meeting held on 16th July, 1990.

20. The answer is in the negative, though the counsel states that he can

apply for the copy of the said minutes now under the RTI Act.

21. If the respondent/defendant no.1 has for all these years not bothered to

even obtain copy of the minutes on the basis whereof a plea of settlement

has been taken, I am not inclined to grant any further time for the same now.

It shows the non-serious manner in which the said plea has been taken and

pursued.

22. It is also important to note the well settled principle of law (see

Saleem Bhai Vs. State of Maharashtra (2003) 1 SCC 557 and Mayor

(H.K.) Ltd. Vs. Owners & Parties, Vessel M.V. Fortune Express (2006) 3

SCC 100) that for deciding an application under Order 7, Rule 11 only the

averments in the plaint are germane and a plaint cannot be rejected on the

basis of allegations made by the defendant in his written statement or in an

application for rejection of the plaint.

23. The plea in the counter affidavit of the respondent/defendant no.2

DDA itself is ambiguous and does not show the appellant/plaintiff to have

allowed the road which it claims to be its internal road to become a public

road for use of persons other than the residents of the colony of the

appellant/plaintiff.

24. The rejection of the plaint in the suit filed by the appellant/plaintiff

thus cannot be sustained on this ground.

25. As far as the second reason for rejection given in the impugned

judgment on the basis of the dicta in ONGC Vs. Collector of Central Excise

supra is concerned, the Supreme Court now in Electronics Corporation of

India Vs. Union of India (2011) 3 SCC 404 has recalled the earlier

judgment. Reference in this regard can also be made to the judgment of the

Division Bench of this Court in Air India Ltd. Vs. Union of India 197

(2013) DLT 360. The said ground of rejection also thus cannot be sustained.

26. That leaves the ground, of the suit filed by the appellant/plaintiff

being barred by Section 53B of the DDA Act. The counsel for the

respondent/defendant no.1 in this regard has relied on the Division Bench's

dicta of this Court in Prinda Punchi Vs. Municipal Corporation of Delhi

2005 IV AD (Delhi) 639 and on D.C.M. Ltd. Vs. Delhi Development

Authority 59 (1995) DLT 625.

27. Per contra, the counsel for the appellant/plaintiff refers to Karamvir

Singh Vs. Delhi Development Authority 148 (2008) DLT 498, para 14 of

the Division Bench judgment of this Court in Smt. Yashod Kumari Vs.

Municipal Corporation of Delhi AIR 2004 Delhi 225, paras 6 & 16 of A.B.

Singh Vs. Chunnilal Sawhney 2011 (9) AD (Delhi) 235 and Ajay

Enterprises Ltd. Vs. Municipal Corporation of Delhi 1998 (3) AD (Delhi)

89.

28. I am afraid, the judgment in DCM Ltd. cited by the counsel for

respondent/defendant No.1 has been overruled in DCM Ltd. Vs. DDA

MANU/DE/0728/2009 (DB). The other judgments cited by the counsel for

the appellant/plaintiff hold that the right under the said provision is capable

of being waived or that the suit cannot be dismissed on such technical

ground after it has been contested and that notice under Section 53B is not

required when there is earlier litigation between the parties.

29. It is also significant that the rejection on the ground of non-

compliance of Section 53B is being sought by the respondent/defendant no.1

and not by the respondent/defendant no.2 DDA for whose benefit the said

provision has been made. The respondent / defendant No.1 cannot be said to

have any locus standi to raise the issue as has also been held in A.B. Singh

supra. The respondent/defendant no.2 DDA as aforesaid, has not even

chosen to file any written statement.

30. Thus there is no merit in the third ground of rejection also and which

also has not been correctly decided by the learned Addl. District Judge.

31. No other ground for rejection of the plaint has been urged before me.

32. The counsel for the respondent/defendant no.1 also contended that the

issue of the said road which has been brewing between the parties for the last

three decades should not be allowed to further linger on. He further

contended that under the Zonal Plan the subject road is shown as a public

road.

33. Though opportunity was given to the counsel for the

respondent/defendant no.1 to satisfy this Court, of the said road even though

earlier an internal road of the appellant/plaintiff's colony having acquired the

status of a public road, but nothing worthwhile could be argued/shown. The

matter will thus have to be adjudicated upon. Though undoubtedly the issue

has lingered for over two decades, the said delay is largely attributable to the

respondent/defendant no.1 and not to the appellant/plaintiff.

34. The appeal thus succeeds. The impugned judgment and decree of

dismissal of suit consequent to rejection of the plaint and the order of

rejection of the plaint are set aside. The application of the

respondent/defendant no.1 under Order 7 Rule 11 of the CPC is dismissed.

35. Axiomatically, the suit has to proceed further with and is remanded to

the concerned District Judge having territorial jurisdiction over the area for

proceeding further from the stage where the suit was prior to rejection of the

plaint.

36. The parties to appear before the concerned District Judge/Addl.

District Judge to whom the suit may be marked, on 30th January, 2014.

37. The Trial Court file which was requisitioned to this Court be also

forthwith remitted back. No costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

DECEMBER 09, 2013 pp..