Najma & Ors. vs Rizwan & Hassan
2013 Latest Caselaw 4296 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order decided on: September 20, 2013

+                   CM(M) No.776/2013 & C.M. No.13223/2013

      NAJMA & ORS                                            ..... Petitioners
                          Through      Mr.Masood Husain, Adv. with
                                       Mr.Sarfaraz Husain, Adv.

                          versus

      RIZWAN @ HASSAN                                       ..... Respondent
                   Through             Mr.Atul Nigam, Adv. with
                                       Mr.Amit Tiwari, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. By this order, I propose to decide the petition filed by the petitioners under Article 227 of the Constitution of India against the order dated 2nd July, 2013 whereby the application filed by the petitioners, who are the plaintiffs in the learned trial Court, under Order 1 Rule 10(2) CPC was dismissed.

2. Few relevant facts are that in the month of April, 2010, the petitioners/plaintiffs filed a suit for permanent and mandatory injunction against six defendants. The case of the petitioners was that they are residing in the suit property for the last 20 years. The said property was handed over to them by one Mr.Sajid solely for dwelling purposes. The petitioners claimed that they have their rights by virtue of various documents, i.e. Election I-Card, Ration Card, Income Certificate, Birth Certificate and School Certificate. The case of the petitioners was that the defendants are

land mafia and they are trying to vacate the petitioners forcibly, therefore, the right of the petitioners be protected.

3. Out of six defendants, written statement was filed by defendant No.1 only, i.e. Rizwan Hassan (respondent herein) who stated that the suit property belongs to one Mr.Suhail Ahmed and he is the authorized attorney, and the petitioners moved in the suit property only when the demolition work was going on.

4. The case of the petitioners is that despite of status-quo order, the defendants demolished the constructed portion of the suit property and tried to evict them. Thus, the petitioners' application for contempt against the defendants is also pending.

5. It is not disputed by the petitioners that the petitioners in the month of August, 2010 themselves filed an application under Order 1 Rule 10 read with Section 151 CPC for deletion of the names of defendants No.2 to 4 from the array of the parties, mainly, on the reason that they have no concern, right or title with respect to the suit property and further, they have neither tried to dispossess the petitioners. The said application of the petitioners was allowed by order dated 24th August, 2011 which reads as under:-

"It is stated on behalf of the defendants No.2 to 4 that they undertake not to dispossess the plaintiffs from the suit property and also not to disconnect electricity and water supply thereto. It is stated that the defendant No.2 is out of the country, however, learned counsel for the defendant No.2 has instructions to make statement on his behalf. Let the statements of the defendants No.3 and 4 and learned counsel for the defendant No.2 be recorded.

In view of the statements of the defendants No.3 and 4 and of the learned counsel for the defendant No.2 recorded separately, learned counsel for the plaintiffs,

states that the plaintiffs have no objection if the defendants No.2 to 4 are deleted from the array of parties. Let his statement be recorded.

In view of the statement of the learned counsel for the plaintiffs recorded separately, the defendants No.2 to 4 are hereby deleted from the array of parties. Plaintiff to file an amended memo of parties by the next date.

At request on behalf of the defendant No.1, passed over until 12:30 pm. At 12:45 pm Learned counsel for the plaintiff states that he wishes to withdraw the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure dated 12.04.2010 bearing filing stamp dated 19.04.2010 as the prayer in the same does not pertain to the suit property. In view of the submission of the learned counsel for the plaintiff, the aforesaid application is hereby dismissed as withdrawn.

Learned counsel further states that he does not wish to press the second application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure dated 21.04.2010 bearing filing stamp dated 21.04.2010 in view of the use of double negative in the prayer clause. He seeks time to move a fresh application.

At request, adjourned to admission/denial of documents and framing of issues to 16.09.2011."

6. On 16th February, 2013, the leaned trial Court decided the interim application under Order XXXIX, Rules 1 & 2 CPC in favour of the petitioners wherein the respondent was restrained from dispossessing the petitioners from the suit property. The said order was challenged by the respondent by filing of an appeal. However, the learned Appellate Court dismissed the appeal with a direction to the learned trial Court to conclude the trial within two months. The said order was passed on 3 rd June, 2013.

7. The contention of the petitioners is that after the dismissal of the appeal, the respondent again tried to evict the petitioners in order to frustrate the interim order passed in favour of the petitioners. It is also stated by the petitioners that Mr.Asif, who was originally the defendant No.2, came to the suit property to get evicted the petitioners despite of the fact that with the consent of the petitioners, said defendant No.2 was deleted by order dated 24th August, 2011.

8. Mr.Nigam, learned counsel for the respondent states that the respondent is the contesting party. Defendants No.2 to 4 who were deleted with the consent of the petitioners have nothing to do with the suit property and in case, Mr.Asif, original defendant No.2 in the matter, came to the suit property in order to evict the petitioners, the petitioners have every right to take action against Mr.Asif in view of the confirmation of the injunction order up to the Appellate Court. Mr.Nigam further states that the petitioners have no justification to file the fresh application under Order 1, Rule 10(2) CPC for again impleading Mr.Asif as defendant No.2 in the suit proceedings on the basis of the alleged threat given by him to the petitioners.

9. Counsel states that in the garb of the said application, the trial directed by the Appellate Court to be decided within two months cannot be stalled. His submission is that Mr.Asif has no interest in the suit property and he has to comply with the interim order and the statement made by him in Court. In case, he is threatening the petitioners, the petitioners should take the strongest action against Mr.Asif. However, the trial cannot be postponed by filing of the application under Order 1, Rule 10(2) CPC for impleading Mr.Asif in the suit proceedings.

10. After having heard the learned counsel for the parties, I totally agree with the arguments of Mr.Nigam. In view of the statement made by Mr.Asif

in the suit proceedings when the defendants No.2 to 4 were deleted by virtue of the order dated 24th August, 2011, in case said Mr.Asif is threatening the petitioners or trying to dispossess them, it would amount to violation of the order passed by the Court. Mr.Asif has no justification to do the same in view of the order already passed and in case, the averments made by the petitioners in the application under Order 1, Rule 10(2) CPC are taken to be correct, the petitioners are entitled to take action against Mr.Asif for violation of the order in the suit or to file a police complaint against him in accordance with law.

11. As far as the present petition is concerned, nothing survives in the same in view of the reasons given above. The same is accordingly dismissed.

(MANMOHAN SINGH) JUDGE SEPTEMBER 20, 2013