Delhi High Court

Nirmal Tower Building Occupants ... vs Nirmal Tower Building (Pvt.) Ltd. on 29 January, 2014

Author: V.K.Shali

*                  HIGH COURT OF DELHI AT NEW DELHI

+        C.S. (OS) No.40 of 2005 and I.A. Nos.7571/2008, 8519/2008,
        377/2009, 10122/2012, 16381/2012, 18566/2012, 12499/2013 &
                               20188/2013

                                      Decided on : 29th January, 2014

NIRMAL TOWER BUILDING OCCUPANTS WELFARE SOCIETY
(REGD.)                               ...... Plaintiff
            Through: Ms. Ekta Gambhir, proxy counsel for
                     Mr. Anshuj Dhingra, Advocate.

                       Versus

NIRMAL TOWER BUILDING (PVT.) LTD.        ...... Defendant
            Through: Dr. Manmohan Sharma & Mr. Anurag
                     Pratap, Advocates for D-1 and 2.
                     Ms. Vibha Mahajan Seth, Advocate for
                     Delhi Fire Service, Government of NCT
                     of Delhi.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. A request for adjournment is prayed by the learned proxy counsel

for the plaintiff on the ground that the counsel is unable to attend the

court because of indisposition.

2. A perusal of the order sheet shows that though the suit has been

filed in the year 2005 and issues have been framed almost two years back

but still not even a single witness has been examined till date, therefore, I

am not inclined to accommodate the plaintiff and adjourn the matter.

3. Before passing any further order, it will be pertinent here to give

brief background of the case. The present suit was filed by M/s. Nirmal

Tower Building Occupants Welfare Society (Regd.) for declaration,

mandatory and permanent injunction and rendition of accounts against

M/s. Nirmal Tower Building (Pvt.) Limited through its Managing

Director. It was averred in the plaint that the plaintiff is an association

duly registered with the Registrar of Societies and consists of apartment

owners in the multi-storied buildings known as Nirmal Tower. The suit

was filed for enforcement of their rights accruing to a class of persons

owning and occupying the various apartments in the said multi-storied

building which was stated to be 18 storied. The grievance in the plaint

was with regard to various facilities to be provided or actually being

provided by the defendant pertaining to security, cleanliness, organized

car parking, installation and maintenance by lifts, irregular water and

electrical supply, rendition of accounts of association, insurance, fire

fighting system, etc. and accordingly, the prayer in the suit was in the

following terms :-

"(a) Pass a decree for declaration that the areas and amenities and facilities listed in the Delhi Apartments Ownership Act in multi-storeyed building called Nirmal Tower situated at 1501, Nirmal Tower, 26, Barakhamba Road, New Delhi-110001 are "common areas and facilities" appurtenant to apartments owners viz. class of above mentioned persons and by way of consequential relief with respect to above direct order that defendant No.1, its agents, employees, representatives, servants or any other person in the name of said defendant No.1, is not entitled to claim any right, title or interest therein of whatsoever nature, in any manner detrimental to the interest of the above mentioned class of persons;

(b) Pass a decree of permanent injunction restraining the defendant No.1, its agents, employees, representatives, servants or any other person in the name of said defendant No.1 from interfering with the members of the plaintiff to maintain and use the common areas and amenities and facilities listed in the said Act;

(c) Pass a decree of declaration in favour of the plaintiff and against the defendant No.1, its agents, employees, representatives, servants or any other person in the name of said defendant No.1, declaring that the lift having License No.ED 3 (7197) 2004 belongs to the plaintiff society which has all the right to work, operate, maintain and use the said lift without any let or hindrance of any nature whatsoever from the defendant No.1;

(d) Pass a consequential decree of permanent injunction restraining the defendant No.1, its agents, employees, representatives, servants or any other person in the name of said defendant No.1 from causing any hindrance, raising any obstacles in the use, enjoyment

as well as in the operation and maintenance of lift being run in Nirmal Tower under the License No.;

(e) Pass preliminary decree of accounts against defendant No.1 to render true and faithful accounts of all the moneys collected by way of all charges for maintaining of common areas facilities is Nirmal Tower and further the defendant No.1 be directed to relief how the said funds have been utilized by the defendant No.1 in this context as well as other monies received by collection from the plaintiff society on account of fire fighting equipment and installation and thereafter pass a final decree in terms of above."

4. The suit came up for hearing for the first time on 13.1.2005 and on

the very first date, on the application bearing I.A. No.257/2005, the court

passed an order restraining defendant from obstructing the plaintiff and

its members from using and making operational any second lift referred

to in the suit. Thereafter, various other applications for ad interim relief

were filed which were considered by the court from time to time and

ultimately, after a prolonged pendency, issues were framed on 2.3.2012

which were as under :-

"1. Whether the defendant has failed to maintain and upkeep the common areas in the multi-storey building Nirmal Tower? OPP"

2. Whether the plaintiff is entitled to maintain and carry out upkeep of Nirmal Tower in view of the Delhi Apartment Ownership Act, 1986? OPP

3. Whether the plaintiff has no locus standi to file the present suit? OPD

4. Whether the plaintiff is an unregistered society, if so, its effect? OPD

5. Whether the defendant is liable to render accounts to the plaintiff relating to money collected by the defendant towards maintenance charges? OPP

6. Whether the plaintiff is entitled to decree of declaration as prayed for? OPP

7. Relief."

5. The parties were directed to file list of witnesses within two weeks

and affidavits by way of evidence by the plaintiff was to be filed within

four weeks with an advance copy to the defendant and the matter was

directed to be listed before Joint Registrar on 22.8.2012 for fixing up the

dates of trial.

6. Pursuant to the aforesaid order, neither the list of witnesses was

filed by the plaintiff nor the evidence by way of affidavit. On 22.8.2012,

the learned Joint Registrar granted one more opportunity to the plaintiff

to file list of witnesses and the evidence by way of affidavits on their

request within two weeks and the matter was adjourned to 30.1.2013.

This order was also not complied with. On 30.1.2013, neither any

witness was present nor summoned. Even the examination-in-chief by

way of affidavits was not filed. On the request of the plaintiff, one last

opportunity was given to the plaintiff to file evidence by way of affidavits

within four weeks and the matter was adjourned to 13.8.2013. On

13.8.2013, the file was not received by the court of Joint Registrar and the

matter was adjourned to 12.9.2013 on which date, the same story of no

witness being present or summoned was recorded by the learned Joint

Registrar. Despite this, yet another opportunity was granted to the

plaintiff subject to payment of cost of Rs.5,000/- to file evidence by way

of affidavit within four weeks and the matter was adjourned to 19.2.2014.

7. No evidence by way of affidavit has been filed till date nor the cost

has been paid. Instead of four weeks, more than four months have

elapsed but no evidence has been filed. I feel futility in adjourning the

matter to 19.2.2014 as fixed by the learned Joint Registrar. A perusal of

all these orders would show that the plaintiff does not seem to be serious

in prosecuting the matter and despite ample opportunities having been

given, the plaintiff is only interested in filing applications and prolonging

the suit and unnecessarily burdening the board of this court. Order XVII

Rule 2 and 3 CPC clearly envisage solution for cases like the present one.

Order XVII Rule 2 and 3 read as under :

2. Procedure if parties fail to appear on day fixed - Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

3. Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default - "