M/S Anuchem Polymers vs North Delhi Power Ltd.
2014 Latest Caselaw 5878 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of Decision: November 17, 2014
+   RSA 166/2009
    M/S ANUCHEM POLYMERS                                ..... Appellant
                       Through:      Mr.Ramesh Kumar, Advocate

                       versus

    NORTH DELHI POWER LTD.                 ..... Respondent
                 Through: Mr.Manish Srivastava and Mr.Rahul
                          Malhotra, Advocates

    CORAM:
    HON'BLE MR. JUSTICE SUNIL GAUR

                                JUDGMENT

% ORAL

The appellant had merely sought a mandatory injunction against the respondent to restrain the respondent to claiming misuser charges, subletting charges etc. and the said suit has been decreed on merits by trial court but the First Appellate Court vide impugned judgment has set aside trial court judgment and dismissed appellant's suit by holding it to be not maintainable as the relief of declaration was not sought.

The factual matrix of this case already stands noticed in the opening paragraphs of the impugned judgment and needs no reiteration.

At the hearing, it was submitted by learned counsel for appellant that the First Appellate Court ought not to have provided an opportunity to appellant to amend the suit to enable the appellant to seek declaration and on mere technicality the appeal ought not to have been decided

RSA No.166/2009 Page 1 against the appellant, as on merits, appellant had succeeded before the trial court.

Counsel for respondents submits that there is no infirmity in the impugned judgment and so this appeal deserves to be dismissed.

Upon hearing and on perusal of the trial court judgment, I find that on the ground of technicalities, substantial justice cannot be sacrificed. Cause of substantial justice deserves to be preferred over the technical considerations. It has been so reiterated by the Apex Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & ors. (2013) 12 SCC 649.

In the peculiar facts and circumstances of this case this appeal is allowed and the impugned judgments are set aside subject to cost of `25,000/- to be deposited with the Prime Minister Relief Fund within four weeks while permitting the appellant to amend the plaint to include the relief of declaration as well. Appellant is granted four weeks to file the amended plaint, which ought to be tried by the trial court in accordance with law and with expedition.

Learned counsel for parties submit that the suit of appellant has to be tried by the Additional District Judge concerned.

Let the parties appear before the concerned District Judge on 28th November, 2014 who shall assign the suit to a court of competent jurisdiction.

[[[                                                 (SUNIL GAUR)
                                                       JUDGE
NOVEMBER 17, 2014
mb

RSA No.166/2009                                                  Page 2