Sh. Peeyush Agarwal vs Delhi Development Authority
2013 Latest Caselaw 5333 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 20th November, 2013.

+                                RFA 536/2013

       SH. PEEYUSH AGARWAL                         ..... Appellant
                    Through: Mr. Sumit Bansal, Mr. Ateev Mathur,
                             Mr. Anuj Tyagi and Ms. Richa
                             Oberoi, Advocates.

                                 Versus

    DELHI DEVELOPMENT AUTHORITY                            ..... Respondent
                      Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                              ORDER

% 20.11.2013 CM No.18303/2013 (for exemption)

1. Allowed, subject to all just exceptions.

2. The application is disposed of.

RFA 536/2013 & CMs No.18302/2013 (for condonation of 3 days delay in filing the appeal), 18304/2013 (for condonation of 24 days delay in re- filing the appeal) & 18301/2013 (for stay)

3. The appeal impugns the judgment and decree dated 4th June, 2013 of

the Court of Additional District Judge (ADJ)-01 (North-East), Karkardooma

Courts, Delhi of dismissal in limine of CS No.77/2013 (wrongly mentioned

in the judgment as CS No.77/2003), I.D. No.02402C0146802013 filed by

the appellant on the ground of the appellant/plaintiff having no cause of

action to file the suit.

4. Though this is a first appeal which ordinarily is to be considered after

requisitioning the Trial Court record but considering the nature of the

controversy, the counsel for the appellant/plaintiff has been heard finally in

the appeal. In this light of the matter, it is also not considered necessary to

deal with the applications for condonation of delay in filing the appeal and

in re-filing the appeal.

5. The appellant/plaintiff instituted the suit from which this appeal arises

to restrain the respondent/defendant/Delhi Development Authority (DDA)

by a decree of permanent injunction from dispossessing the

appellant/plaintiff from the land forming part of Khasra No.16 min.

admeasuring 8 bighas at Charahagah, Shumali Estate also known as Shastri

Park, Delhi except in accordance with law. It was inter alia the case of the

appellant/plaintiff,

(a) that he is a bona fide member of Delhi Peasants Co-operative

Multi Purpose Society Ltd.;

(b) that the said Society had been allotted land of which the

aforesaid land formed a part;

(c) that in June, 1956 a decision was taken by the

respondent/defendant/DDA to take over possession of the land from

the Society and to re-allot the same to the Society upon certain terms

and conditions;

(d) that certain disputes and differences arose and the Society filed

W.P.(C) No.14260/2004 in this Court which was disposed of vide

order dated 19th April, 2006 restraining the

respondent/defendant/DDA from resuming the possession of the land

from any member of the Society except by following due process of

law;

(e) that the suit land had been allotted by the Society to its member

Sh. Shafiq Ahmad who had transferred the same to the

appellant/plaintiff who had been accepted as a member of the said

Society;

(f) that the appellant/plaintiff was thus entitled to the benefit of the

restraint order in the writ petition aforesaid;

(g) however the respondent/defendant/DDA was threatening to

dispossess the appellant from his land without due process of law.

6. The learned ADJ has in the impugned judgment dismissing the suit

held that this Court in the order aforesaid disposing of the writ petition

having already directed the respondent/defendant/DDA not to dispossess

any member of the Society and since the appellant/plaintiff claims to be a

member of the Society, there was no cause of action in favour of the

appellant/plaintiff for the suit.

7. It has as such been enquired from the counsel for the

appellant/plaintiff as to what is the wrong with the impugned order.

8. The counsel for the appellant/plaintiff has contended that for the

purposes of rejection of the plaint, the plaint alone is to be seen and since

the appellant/plaintiff had pleaded in the plaint that notwithstanding the

restraint order in the writ petition, the respondent/defendant/DDA was

threatening to forcibly dispossess the appellant/plaintiff from the land, the

suit could not have been dismissed on the ground of there being no cause of

action therefor.

9. It has been enquired from the counsel for the appellant/plaintiff,

whether the appellant/plaintiff claims to be covered by the order aforesaid in

the writ petition.

10. The answer is in the affirmative.

11. Once the appellant/plaintiff claims to be covered by the order in the

writ petition, so restraining the respondent/defendant/DDA, even if it were

to be held that in violation of the same, the respondent/defendant/DDA was

threatening to forcibly dispossess the appellant/plaintiff, the

appellant/plaintiff cannot seek a second similar restraint order. If the

respondent/defendant/DDA inspite of being a statutory body were to act in

violation of one injunction order, securing a second injunction order would

not protect the appellant/plaintiff any further.

12. No error is thus found in the order of the learned ADJ.

13. No other argument has been urged.

14. There is no merit in the appeal, which is dismissed. No order as to

costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 20, 2013 bs