Delhi High Court
Qayamuddin & Ors vs Jamil-Ud-Din & Ors on 8 July, 2013
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th July, 2013
+ RFA 309/1997
QAYAMUDDIN & ORS ..... Appellants
Through: Mr. Nikhil Chhoker for Mr.
Qayamuddin, Adv.
versus
JAMIL-UD-DIN & ORS ..... Respondents
Through: Ms. Amita Gupta, Adv. for R-7.
Mr. Ashok Mahipal, Adv. for R-8.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. Mr. Nikhil Chhoker proxy counsel for Mr. Qayamuddin stated to be
Advocate for the appellant no.2 appears and seeks adjournment. None
appears for the appellant no.1 and appellant no.3.
2. This being an appeal of the year 1997 and there being no cause
disclosed for the adjournment sought, the same has been refused. A perusal
of the order sheet also shows that adjournments were sought by Mr. Nikhil
Chhoker, Advocate on 25th February, 2013 and 15th April, 2013. There is no
reason to keep this appeal pending specially when the appellants themselves
do not appear to be interested in pursuing the same.
3. The counsel for the respondent no.8 who alone besides the counsel
for the respondent no.7 MCD appears, has been asked to address.
4. The counsel for the respondent no.8 has contended that the suit from
which this appeal arises was filed under Section 6 of the Specific Relief
Act, 1963 and under sub Section (3) thereof, no appeal lies against the order
of dismissal thereof. He thus contends that this appeal is not maintainable.
5. Section 6 of the Act is as under:-
"6. Suit by person dispossessed of immovable property.-(1) If
any person is dispossessed without his consent of immovable
property otherwise than in due course of law, he or any person
claiming through him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in
any suit instituted under this section, nor shall any review of
any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing
to establish his title to such property and to recover possession
thereof."
6. A perusal of the Trial Court record shows that the three appellants
had filed the suit from which this appeal arises, "For Declaration,
Possession under Section 6 of Specific Relief Act, Damages and
Injunction" pleading that they had on 11th November, 1996 been forcefully
dispossessed without due process of law from property bearing No.B-93,
Main Road, Braham Puri, Delhi - 110 053 built up on an area of 175/180
sq. yds. It was expressly stated in para 6 of the plaint that the appellants
being in joint possession could not be dispossessed against their will and
consent and without due process of law because Section 6 of the Act does
not make any distinction between a joint possession and an exclusive
possession. Reliefs of declaration that the forcible dispossession of the
appellants/plaintiffs was illegal, unwarranted and without due process of
law, and of recovery of possession of the premises from which
appellants/plaintiffs were dispossessed were claimed. It was further pleaded
that the defendants no.1to 4 in the suit were planning to sell the property
and had also started raising illegal construction thereon and on the basis of
the said pleas the reliefs of injunction restraining the defendants from
selling or parting with possession of the property or from raising any
construction thereon was claimed; damages of Rs.2,43,000/- on account of
forcible dispossession and of Rs.5,000/- per month from the date of
institution of the suit and till restoration of possession, were also claimed.
7. The defendants in the suit applied under Order VII Rule 11 of the
CPC inter alia pleading that the appellants had filed the suit under Section 6
of the Act and the reliefs as claimed of injunction and damages could be
made in the plaint.
8. The appellants filed a reply to the said application and in which they
did not deny the suit to be under Section 6 of the Act but pleaded that the
other reliefs claimed were incidental or consequential to the relief of
possession claimed under Section 6 of the Act.
9. The learned Addl. District Judge has allowed the aforesaid
application under Order VII Rule 11 of the CPC and held that Section 6 of
the Act under which the suit had been filed is not meant for declaration of
right over the property. Axiomatically, the suit has been dismissed.
10. The appellants in the memorandum of appeal have not controverted
the filing of the suit for possession under Section 6 of the Act but have in
para 3.5 stated that the suit, besides on the basis of Section 6 of the Act is
also for other reliefs pertaining to other causes of action categorically
averred.
11. There is thus no doubt that the suit, from which this appeal arises, in
so far as for the relief of possession, was instituted definitely under Section
6 of the Specific Relief Act. The bar under sub Section (3) of Section 6 is
unequivocal i.e. that no appeal lies from any order or decree passed in any
suit instituted under Section 6. This appeal, in so far as against the dismissal
of the relief claimed in the suit of recovery of possession, is not
maintainable.
12. The question which arises is whether the appeal can be said to be
maintainable in so far as against the dismissal of the reliefs of declaration,
damages and injunction claimed in the said suit.
13. In my opinion the same also cannot be said to be maintainable. The
reliefs of declaration, damages and injunction are closely intertwined to the
relief of possession and rather as the appellants themselves as aforesaid
have admitted, are incidental or consequential to the main relief claimed of
possession under Section 6 of the Act. The suit for the said reliefs without
the relief of possession would not even be maintainable. As far as the relief
of declaration is concerned, though the title of the suit undoubtedly shows
the same to be also for declaration but the declaration claimed is also of the
forceful dispossession alleged being illegal unwarranted and without due
process of law. Once the appeal against the dismissal of the suit for
recovery of possession under Section 6 of the Act is not maintainable, the
question of considering the grant of the relief of declaration of the
dispossession being illegal does not arise.
14. It may also be stated that the remedy under Section 6 of the Specific
Relief Act is a summary remedy against dispossession otherwise than in
due process of law, where the only question to be adjudicated is of such
dispossession and without adjudicating any question of title and which
adjudication takes time. The dispossession without due process of law
pleaded by the appellants/plaintiffs is of 11th November, 1996; the suit was
filed on 11th December, 1996 and dismissed as aforesaid on 11 th July, 1997.
This appeal remained pending for nearly sixteen years, largely due to
appellants not acting with promptitude and repeatedly seeking
adjournments. Sub Section (4) of Section 6 clarifies that dismissal of a suit
under Section 6 does not bear suing again for the relief of possession on the
basis of title. It is not deemed appropriate to now, after seventeen years,
relegate the applicants to the remedy under Section 6 which as aforesaid is
summary in nature.
15. Whichsoever way one looks at, the appeal is not maintainable and is
dismissed; however in the circumstances no costs.
Decree sheet with drawn up.
RAJIV SAHAI ENDLAW, J
JULY 8, 2013
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