Civil Services Officers ... vs Dargah Panch Peer & Ors.
2013 Latest Caselaw 848 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                   FAO NO.258 OF 2008

                                       Decided on : 20th February, 2013

CIVIL SERVICES OFFICERS INSTITUTE              ...... Appellant
              Through: Mr.Parag P.Tripathi, Sr.Adv. with
                        Ms.Jagrati Singh, Adv.

                      Versus

DARGAH PANCH PEER & ORS.       ...... Respondents
            Through: Ms.Mansi Gupta, Adv. for MCD

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM 21239/2011(for recalling of order dated 24.10.2008)

1. This order shall dispose of the applications bearing CM

Nos.21239/11, 21240/2011, 21241/11, 21242/11, 21243/11.

2. The matter was passed over in the first call, however, despite the

second call, there is no appearance on behalf of the applicant/R-1.

3. Mr.Tripathi, learned senior counsel appearing for the appellant has

stated that filing of these applications is the gross abuse of the

processes of law inasmuch as even after passing of the consent

order on 24.10.2008, the applicant/respondent No.1 had subsequent

thereto filed applications for recalling/modification/cancellation of

the order dated 24.10.2008 and seeking directions against the

appellant and respondent nos. 8 and 9. But the said applications

were withdrawn on 01.10.2010 with liberty to approach the

appropriate forum for redressal of its grievance. It was contended

by Mr.Tripathi, learned senior counsel that after passing of a

consent order and withdrawal of the similar applications, it was not

open to the applicant to file repeated applications in this regard. It

has been contended that not only the applicant has filed the

application for recall of the order dated 24.10.2008 but has also

filed an application for initiation of action on the ground of perjury

against its own counsel and two of the officers of the

appellant/Institute. Accordingly, it is prayed that these applications

be dismissed with costs as all these applications are frivolous,

vexatious and moved with a view to harass the appellant.

4. Before deciding these applications, it would be pertinent here to

mention the brief facts of the case.

5. The applicant/respondent No.1 herein filed a suit before the learned

ADJ for recovery of possession of land against number of persons

in which the respondent nos.2 to 9 and appellant herein were the

party. The case of the applicant before the Civil Court was that the

land measuring 3 bigha 16 biswas forming part of Khasra no.159/4,

Mauja Alipur Palangi Hassanpur, Tehsil Mehrauli (now Tehsil

Kapashera) of the Revenue Estate of Village Palangi, Delhi

belongs to Dargah Panch Peer, i.e., the applicant/respondent No.1

herein. It was alleged that the part of the said land has been

illegally allotted to the appellant/Civil Services Institute, Kasturba

Gandhi Marg, New Delhi by the L&DO, Ministry of Urban Affairs

and Employment, Nirman Bhawan, New Delhi for the purpose of

setting up a recreational club. It was alleged that the said

recreational club has not only raised unauthorized construction but

was also cutting/felling down the trees.

6. The learned ADJ had passed interim orders on 3.4.2008 and

6.5.2008 restraining the appellant from raising any unauthorized

construction as well as from cutting down/pruning trees. The

appellant/Institute also filed an application under order 39 Rule 4

CPC. The learned Additional District Judge passed a detailed

order confirming the restraint put on the appellant/Institute from

raising any construction and from cutting down the trees vide order

dated 2.6.2008 and also dismissed application of the appellant

under Order 39 Rule 4 CPC. Against this order, two appeals were

filed by the appellant/Institute in the High Court bearing FAO Nos.

258/2008 and 274/2008.

7. During the pendency of the present appeal, a consent order dated

24.10.2008 was passed. This consent order was to the effect that

the appellant/Institute was to raise the construction at its own cost

and risk and in the event of Dargah Panch Peer succeeding in the

suit, they were to restore the status quo ante for the purpose of

handing over the possession of the land in question to the Dargah

Panch Peer. With regard to the felling of trees, it was stated by Mr.

Tripathi, the learned senior counsel, who appeared for the

appellant/Institute that no cutting of trees would be done without

obtaining appropriate permission from the competent authority.

The exact language of the order dated 24.10.2008, passed by my

learned Predecessor is as under:-

"FAO No.258/2008 and FAO No.274/2008 After some hearing of the various aspects of the matter, both parties agree that without going into the merits, an appropriate order protecting the interest of the plaintiffs in the event that the plaintiffs were to succeed in his suit be passed while at the same time permitting the appellant/defendant to utilize the land beyond the boundary wall, which is stated to have been constructed by the appellant on the suit premises around the Mazaar. Mr.Tripathi, on instructions from his client, states that in the case the appellant raises any construction or otherwise makes any use of the suit land pendente lite, then the same shall be done entirely at the risk and cost of the appellant. He specifically states that the appellant, who is the defendant in the suit, shall claim no equities or any other rights by virtue of anything that might be done by the appellant on the suit land before the decision of the suit. He further states that in the event the litigation comes to be decided against the appellant, and the respondents are held entitled to the suit land, or any part thereof, it shall, at its own cost and at the option of the plaintiffs/respondents, restore the same to its original condition. Mr.Tripathi also states that his client undertakes not to remove any trees on the suit land without obtaining the requisite permissions and clearances as contemplated in law, and that it shall be open to the plaintiffs/respondents to also approach any statutory authority including, inter alia, under the

Preservation of Trees Act, if they have any grievance in the matter. Mr.Tripathi also states that the appellant shall file an undertaking in terms of this order by way of an affidavit of a responsible officer within one week from today. It is ordered accordingly. Subject to the filing of the said affidavit by the appellant, the impugned orders of the learned trial court stand modified to the extent stated above.

It is made clear that in finally disposing of the matter, the trial court shall not be influenced by any opinions or observations that may have been expressed in the impugned order and the matter shall be finally decided on its own merits after trial. Since no opinion is being expressed on the merits of this appeal, it would be open to the appellants to raise all questions raised by them in this appeal before the trial court also.

Both the appeals are disposed of with the above directions.

CM No.11186/2008 in FAO No.258/2008 & CM No.11584/2008 in FAO no.274/2008

Since the appeals have been disposed of, both these applications do not survive and are also disposed of as such.

Sd/-

Sudershan Kumar Misra, J.

October 24, 2008"

8. After the order having been passed way back in 24.10.2008, the

Dargah Panch Peer filed an application bearing CM no.7065/2010

for recalling/modification of the said order along with two other

applications. However, later on applications bearing CM Nos.

7065-67/2010 were withdrawn by the applicant /R-1 vide order

dated 1.10.2010 by making a statement that they be permitted to

withdraw the same with liberty to approach the appropriate forum.

9. After having chosen to withdraw the aforesaid applications, a fresh

application bearing CM no.21239/11 on the same lines has been

filed for recalling/modification of the order dated 24.10.2008.

Along with the said application, there are three other applications

seeking directions against the appellant.

10. The matter has been passed over twice but there is no appearance

on behalf of the applicant to make submissions with regard to these

applications.

11. I have gone through the applications.

12. The ground which has been set up by the applicant/R-1 for

recalling of the order dated 24.10.2008 is that the counsel who had

consented to the passing of the order on 24.10.2008 was not

authorized to make a statement before this Court and therefore, the

order was passed on his own consent without any authority.

13. The applicant/Dargah Panch Peer has not shown its bonafides. The

reason for this is that if at all any statement was made by

applicant's counsel which he was not authorized to make, this

should have been reflected by applicant's contemporaneous

conduct while as its conduct is to the contrary. The reason for this

observation is that they filed the first application for recalling of

the order dated 24.10.2008 in 2010 and later on withdrew the same

and thereafter, remained silent for almost one year. The present

application has been filed by the applicant without showing its

bonafides inasmuch as, if it felt aggrieved, it should have taken up

the matter with the professional body which controls the conduct of

the counsel, which has not been done by it. Therefore, I feel that

this application which has been filed by the applicant is totally

misconceived and it only wants to keep the appellant/Institute at

the tender hooks.

14. Accordingly, the application for recalling of the order dated

24.10.2008 bearing CM no.21239/2011 in my view is totally

misconceived, vexatious and deserves to be dismissed with heavy

costs, however, as the applicant is not present, I refrain from

imposing costs.

15. So far as other applications are concerned, which are for stay and

for directions, for aforesaid reasons, they are also dismissed.

16. So far as CM no.18320/2011, u/S 340 Cr.P.C. is concerned, the

same is also dismissed as it does not have any merit.

V.K. SHALI, J.

FEBRUARY 20, 2013 RN