Kuldeep Gulwani vs Babita Chawla
2014 Latest Caselaw 5348 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 6/2013

%                                                    29th October, 2014

KULDEEP GULWANI                                       ......Petitioner
                          Through:       Mr. Amit Chadha, Adv.

                          VERSUS

BABITA CHAWLA                                       ...... Respondent

Through: Mr. B.B.Sawhney, Sr. Adv. with Mr. Lakshay Sawhney, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India is

filed by the petitioner/objector against the judgments passed by the

executing court and the first appellate court; dated 12.1.2012 and 9.8.2012

respectively; by which objections filed by the petitioner against the

execution of judgment and decree dated 10.8.2009 have been dismissed.

2. The memo of parties in the suit reads as under:-

" IN THE COURT OF MS.RAVUBDER BEDI: JSCC CUM ASCJ CUM GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS: NEW DELHI

CS-983/09

Smt. Babita Chawla wife of Shri Trilok Chawla R/o 4-IV/9, Old Double Storey, Lajpat Nagar IV, New Delhi 11 00 24 ... Plaintiff

Versus

1. Union of India, Through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi 11 000 1.

2. Land & Development Officer, Nirman Bhawan, New Delhi 11 0 001.

3. Mr. Kuldeep son of Shri Gian Chand R/o 4-IV/11-12, Old Double Storey, Lajpat Nagar-IV, New Delhi

4. Shri Arjun Dass c/o Smt. Savitri wife of Shri Jassa Ram R/o 4-IV/13, Old Double Storey, Lajpat Nagar, New Delhi-11 0024.

5. Shri Bharat Singh R/o 4-IV/15, Old Double Storey, Lajpat Nagar, New Delhi 110024. .. Defendants"

3. The subject suit was a suit for declaration alongwith the relief

of possession and injunction whereby the plaintiff/respondent no.1 claimed

that she is the owner of the entire Lavatory Block situated on the ground

floor adjoining to the quarter no.4-IV/9, Old Double Storey, Lajpat Nagar,

New Delhi. This suit was decreed and the operative part of the judgment

dated 10.8.2009 reads as under:-

"19. In view of the aforesaid observations, the suit stands decreed. Plaintiff is hereby declared to be the owner of the entire Lavatory block situated on the ground floor adjacent to quarter No.4-IV/9 Old Double Storey, Lajpat Nagar, New Delhi. Defendants No. 4 to 6 are directed to hand over peaceful and vacant possession of the said lavatory block to the Plaintiff in exchange of additional area allotted to them by Defendant No. 1 to 3. Defendant No.4 to 6 are also restrained from using the common lavatory block or from asserting any right or interest over the same, adjacent to Quarter No.4-IV/9, Old Double Storey Lajpat Nagar, New Delhi. No order as to cost. Decree sheet be prepared and file be consigned to record room."

4. The petitioner is Sh. Kuldeep Gulwani and claims that he was

not made a party to the suit and therefore the decree is not binding upon him.

The objector/petitioner states that he was never served in the suit. Before

this Court, it is additionally argued that the suit was bad for non-joinder and

mis-joinder of necessary parties.

5. It is trite that a judgment passed between the parties to the suit

is res judicata and objections which have to be taken on merits by means of

filing of a written statement in the suit cannot be taken as objections to the

execution of the judgment and decree. I have already reproduced the memo

of parties of the suit above in which defendant no.3 is shown as one Mr.

Kuldeep S/o Sh. Gian Chand and resident at a particular address which is

part and parcel of the same property in which the disputed Lavatory Block

was situated. It is not disputed before this Court that Mr. Kuldeep as stated

in the memo of parties in the suit is the son of Sh. Gian Chand i.e parentage

of Mr. Kuldeep is correctly mentioned in the memo of parties in the suit

though the surname Gulwani is not found. The present petitioner/objector

admits before this Court that his parentage and address is the same as

mentioned in the memo of parties in the suit. Thus mere non-mention of

surname cannot make any difference once defendant no. 3 is properly named

with proper parentage and at the correct address. Also, I would like to at this

stage again put on record that it is not disputed on behalf of the petitioner

that he was residing at the address as stated in the memo of parties in the

suit. Therefore, once the objector is a defendant in the suit, a judgment and

decree has been passed against him after recording that he was served, the

only way in which such judgment and decree can be challenged is by getting

the judgment and decree set aside on an application filed under Order IX

Rule 13 of the Code of Civil Procedure, 1908 (CPC) or by means of filing of

an appeal to the higher court questioning the judgment and decree dated

10.8.2009. Neither of these two processes have been invoked by the

petitioner, and therefore, the petitioner cannot file objections to the judgment

and decree much less on the grounds such as mis-joinder/non-joinder of

parties etc.

6. No other issue is pressed or urged before this Court.

7. In view of the above, I do not find any merit in the petition,

much less for this Court to exercise extraordinary and discretionary

jurisdiction under Article 227 of the Constitution of India.

8. Dismissed.

VALMIKI J. MEHTA, J OCTOBER 29, 2014 ib