Ms. Rama Gogia vs The Municipal Corporation Of ...
2014 Latest Caselaw 563 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: January 29, 2014

+     I.A. No.17653/2012 (u/O 9 Rule 9 CPC) & I.A. No.17654/2012
      (u/S 5 of Limitation Act) in CS(OS) 623/2008

      MS. RAMA GOGIA                                        ..... Plaintiff
                   Through              Mr.Anjum Kumar, Adv.

                          versus

      THE MUNICIPAL CORPORATION OF DELHI & ORS.
                                                 ..... Defendants
                   Through Ms.Pooja Yadav, Adv. for Ms.Amrit
                           Kaur Oberoi, Adv. for D-4.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order I propose to decide the above mentioned two applications; one under Order IX Rule 9 CPC for setting aside order dated 27th September, 2011 and other under Section 5 of Limitation Act for condonation of delay in filing the said application.

2. The plaintiff filed the suit for declaration, damages and compensation against the defendants including MCD and the Government of NCT of Delhi who demolished the flat of the plaintiff on the basis of the complaint made by defendants No.3 and 4. The contention of the defendants No.3 and 4 was that the construction was illegal and therefore, the defendant No.2 has rightly demolished unauthorized construction. The original position of the premises of the plaintiff remained the same after the demolition which is admitted by the counsel for the plaintiff.

3. The suit of the plaintiff was dismissed by order dated 27 th September, 2011 by coming to the conclusion that the plaintiff was not interested in prosecution the case. Prior to the dismissal of the suit, the erstwhile counsel of the plaintiff filed an application, being I.A. No.1182/2010, seeking discharge on the ground that he was unable to pursue the suit in view of the incomplete instruction from the plaintiff's side who failed to cooperate in prosecution of the case with regard to filing the documents etc. It was stated in the application that at numerous occasions reminders were issued and also issued the letter to withdraw his vakalatnama and even subsequently the plaintiff was present in person in Court on 28 th January, 2010 and 15th April, 2010 who opposed the application for grant of prayer for withdrawing the vakalatanam. It appears from the record that even subsequently the plaintiff appeared before Court on 12th August, 2010, 27th January, 2011 and 31st May, 2011. The application of the counsel of the plaintiff was allowed and the counsel was discharged from the matter. The suit was therefore put up for 27th September, 2011. On the said date, it was submitted by the counsel for the plaintiff that he had sent a complete paper book to the plaintiff in terms of the last order but the courier letter was returned with the remarks that no such person resides at the given address. The Registry also sent a copy of the order dated 23rd August, 2011 to the plaintiff at her address. The same was also returned to the Registry with the endorsement 'unclaimed return to sender'. Left with no option, the Court dismissed the suit as no one appeared on behalf of the plaintiff. The suit was dismissed as non- prosecution. It was also directed to the Registry to send the copy of the order to the plaintiff at the address disclosed. After the expiry of about one year, the plaintiff filed the present applications.

4. It is stated in the application that the plaintiff engaged the services of one Mr.Chirag Jamwal, Advocate. As the plaintiff is a poor person and even the husband of the plaintiff was bed-ridden, she had no income and therefore could not afford to pay the fees.

5. In para 4 of the application it was stated by the plaintiff that after illegal demolition of the flat in question in the year 2004, the condition of the plaintiff worsened and with each passing day due to stress and mental harassment, the medical condition of the plaintiff further deteriorated. In August, 2011 unfortunately the son of the plaintiff Master Himanshu Gogia, who was undergoing training in Pune, met with an accident and got his foot factured besides getting grievous and serious injuries. Therefore, the plaintiff could not appear before Court after the discharge of the counsel.

6. In October, 2011, the plaintiff had an attack of chicken guinea. Therefore, she could not attend the hearing fixed by the Court and it was only on 2nd July, 2012 she came to know that the suit stands dismissed by order dated 27th September, 2011. Thus, the said order be set aside.

7. The similar grounds are taken in the application for condonation of delay in filing the application under Order IX Rule 9 CPC.

8. Admittedly, as per the plaintiff, she came to know about the dismissal of the suit on 2nd July, 2011. Even the application was filed after more than two months i.e. on 13th September, 2012.

9. Learned counsel appearing on behalf of the defendant No.4 states that the suit itself filed by the plaintiff was nothing but a misuse of process of law. The counsel argued that no sufficient cause was shown by the plaintiff in the application. Even the application is not filed by the plaintiff within

thirty days after coming to know about the dismissal. The plaintiff was fully aware about the dismissal of the suit in view of her presence in Court from time to time. She was aware that her counsel was inclined to withdraw the vakalatnama from the record. The allegations made in the application were denied by the learned counsel appearing on behalf of the defendant No.4. She also denied that defendant No.4 had any role to play in demolishing the illegal construction. It is the admitted position that the counsel for the plaintiff filed an application seeking discharge from the present suit on 25th January, 2010. Even the plaintiff opposed the application filing of the reply on 12th April, 2010. Not only that she appeared before the Court on 28 th January, 2010, 15th April, 2010, 12th August, 2010, 27th January, 2011 and 31st May, 2011. Thus, she was fully aware that her Advocate was seeking discharge from the present suit. It was the duty of the plaintiff either to engage another counsel or should have been vigilant about the hearing of the matter in the Court. I have also been informed by the learned counsel appearing on behalf of the defendant No.4 that the demolition carried by the defendants No.1 and 2 was with regard to the unauthorized/illegal construction. The remaining property is still intact which is not demolished by the defendants No.1 and 2.

10. Considering the overall facts and circumstances of the case, I am of the considered view that no sufficient cause has been shown by the plaintiff to restore the present suit. Both the applications are accordingly dismissed.

(MANMOHAN SINGH) JUDGE JANUARY 29, 2014