Delhi Urban Shelter Improvement ... vs Om Parkash & Ors.
2014 Latest Caselaw 2735 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No.140/2014

%                                                       27th May, 2014

DELHI URBAN SHELTER IMPROVEMENT BOARD ..... Appellant
                 Through: Mr. Parvinder Chauhan, Advocate.

                            Versus


OM PARKASH & ORS.                                     ..... Respondents
                            Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.9560/2014 (exemption)

1.             Exemption allowed subject to just exceptions.

               C.M. stands disposed of.

C.M. No.9561/2014 (condonation of delay)

2.             For the reasons stated in the application, delay of 36 days in

filing the appeal is condoned.

               C.M. stands disposed of.

+ RSA No.140/2014 and C.M. No.9559/2014 (stay)


RSA 140/2014                                                    Page 1 of 5
 3.             Counsel for the appellant states that by mistake memo of

parties filed in this Court is not reflective of the correct memo of parties

as per the memo of parties filed in the trial court and therefore he will

file a fresh amended memo of parties within one week. Let that be done.


4.             This Second Appeal under Section 100 of Code of Civil

Procedure, 1908 (CPC) is filed against the impugned judgment of the

first appellate court dated 2.12.2013. The first appellate court by the

impugned judgment dismissed the appeal of the present appellant filed

against the judgment of the trial court dated 7.1.2011. Trial court by its

judgment had decreed the suit for possession and mesne profits with

respect to the suit property measuring 200 sq yds, forming part of khasra

no.306, situated in the revenue Estate of village Seelam Pur, Shahdara,

Delhi which was filed by the plaintiffs/respondent nos.1 and 2.


5.              Appellant was the defendant no.2 in the suit. Defendant

no.1 in the suit/respondent no.5 herein was the MCD. Defendant no.2

was originally a department in the defendant no.1 and which was carved

out from the defendant no.1 giving the same a separate entity.

Defendant nos.3 to 6 (of which only two defendants i.e respondent nos.3

and 4 in this appeal are reflective as stated in para3 above qua memo of

RSA 140/2014                                                   Page 2 of 5
 parties) did not effectively contest the suit because they did not lead any

evidence. So far as appellant is concerned, admittedly as per the written

statement it claimed no title to the suit property and this is so recorded in

the paras 6 and 15 of the impugned judgment of the first appellate court.

The aforesaid paras 6 and 15 of the impugned judgment are based upon

para 6 of the written statement filed by the appellant in the trial court.


6.             Whereas the defendant nos.3 to 6 i.e including respondent

nos.3 and 4 herein claimed ownership of the suit land, however, the

appellant/defendant no.2 did not claim any title to the suit land. The

defendant nos.3 to 6 claimed rights in the suit land on the ground of long

possession but, since they led no evidence the position which hence

emerged was that respondent nos.1 and 2/plaintiffs were held to be the

owners of the suit land and consequently the suit for possession and

mesne profits was decreed.


7.             In my opinion, the first appeal which was filed before the

first appellate court and even this Second Appeal which is filed by the

appellant/defendant no.2 ought not to have been filed.             I fail to

understand as to how instructions can be given for filing of an appeal by

a defendant who is not a contesting party as per its pleadings and which

RSA 140/2014                                                    Page 3 of 5
 does not claim any title to the suit property. By filing of unnecessary

first appeal before the first appellate court and now a Second Appeal in

this Court, not only there is wastage of public moneys with which the

appellant is being run but there is also wastage of time of the officers of

the appellant and which time definitely could have been used better

elsewhere. In fact, filing of the appeals leads the Court to an impression

that appellant is fighting proxy litigation on behalf of the defendant

nos.3 to 6 in the suit and which is a totally undesirable position.


8.             In view of the above, this appeal is wholly misconceived,

and without any merit inasmuch as it is filed by a defendant in a suit

which did not claim any title to the suit property. Therefore while

dismissing this appeal let the Chief Legal Officer of the appellant file an

affidavit in this Court as to why unnecessary appeals were filed before

the first appellate court and in this Court by the appellant who as per its

own pleadings has nothing to do with the suit property. This affidavit be

filed in this Court within six weeks and within which period the said

affidavit be also placed before the governing body of the appellant for

the governing body to know that its legal officers are acting in a most

irresponsible manner by fighting proxy litigations resulting in wastage of

RSA 140/2014                                                   Page 4 of 5
 public moneys and unnecessary utilization of time which should have

been spent elsewhere for public good.


9.             This appeal is accordingly dismissed, subject to the

aforesaid observations.     List in Court on 9th July, 2014 to ensure

compliance of the present judgment of placing of the affidavit of the

Chief Legal Officer before the governing body of the appellant and the

filing of that affidavit of the Chief Legal Officer in this Court.




MAY 27, 2014                                       VALMIKI J. MEHTA, J.

Ne