Surya Kant Watharkar vs The Municipal Corporation Of ...
2014 Latest Caselaw 4065 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            C.M.(M) No.1007/2012 & C.M.Nos.15724/2012, 12338/2012
             (for stay) and 12344/2013

%                                                    01st September, 2014

SURYA KANT WATHARKAR                                          ......Petitioner
                Through:                 Mr.B.A.Khan, Advocate.

                          VERSUS

 THE MUNICIPAL CORPORATION OF DELHI & ORS.
                                            ...... Respondents

Through: Mr.Rahul Sharma, Advocate for R-2 to 5.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order dated 24.7.2012 which has

dismissed an application filed by the petitioner/defendant no.2, and by which

application, petitioner/defendant no.2 was seeking a trade license from the

defendant no.3/MCD.

2. The main suit is at the stage of final arguments which is a suit for

declaration, possession and recovery of damages filed by the respondent nos.

2 to 5/plaintiffs. The trial court has rejected the application mainly on the

ground that the relief which is claimed by the petitioner/defendant no.2

against the defendant no.3/MCD is not a subject matter of the suit or the

counter-claim filed by the petitioner/defendant no.2 and no interim relief can

hence be granted on an aspect for which no final relief is prayed for.

Effectively, the trial court also holds that if the petitioner has any grievance

against the defendant no.3/MCD for non-grant of the trade license,

appropriate independent proceedings will have to be filed.

3. The relevant observations of the trial court are contained in para 6 of

the impugned order, and which read as under:-

"6. In the present suit, the defendant no.3 filed the written statement (WS) and also made the counter claim. In para 1 of preliminary objection of the WS, the defendant no.2 mentioned about the representation dated 17.08.2004. In para 6 (c) of the WS, the defendant no.2 mentioned about the pendency of the said representation. In para 6 of the counter claim, the defendant no.2 again mentioned about the representation dated 17.08.2004. As such, the defendant no.2 was well aware of the representation dated 17.08.2004 and its pendency at that time. However, the defendant no.2 has not pleaded any grievance on the said account otherwise he would have prayed for an appropriate relief in this regard against the defendnatno.3 in his counter claim. So far as the representation dated 09.08.2005 is concerned, the same came into picture in the present application only. Further, in the counter claim, the defendant no.2 has not sought any relief against the defendant no.3 to issue the trade license to run the meat shop in his favour. Now at this stage, vide the

present application, the defendant no.2 is seeking the relief in the form of mandatory injunction against the defendant no.3 directing it to issue the trade license in his favour. As such, the said relief is beyond the scope of the present suit as well as the counter claim made by the defendant no.2. So far as the grievance of the defendant no.2 as to the pendency of his representations dated 17.08.2004 and 09.08.2005 are concerned, the same is also beyond the scope of the counter claim. Further, vide the present application, the defendant no.2 is seeking exemption from filing the documents for issuance of trade license and thereby direction to the defendant no.3 to issue the same. Firstly, the said prayer is again beyond the scope of the counter claim. Secondly, if the defendant no.2 is aggrieved by the said act of the defendant no.3 then he could have taken the appropriate remedies available under the law. But the said relief cannot be granted in the present suit as well as the counter claim filed by the defendant no.2. Thirdly, it is not the case of the defendant no.2 that the defendant no.3 has not been acting in terms of the policy applicable in the present case or it is discriminating with the defendant no.2 in issuance of trade license to run the meat shop. Fourthly, in its reply, the defendant no.3 stated that the application for issuance of trade license has already been rejected. The defendant no.2 has not disputed the same. It is not the case of the defendant no.2 that it has challenged the rejection order. As such, the said decision is final as on date. Therefore, the relief as prayed for in the present application cannot be granted. Fifthly, in the present suit as well as the counter claim, this court has no jurisdiction to look into the circular dated 07.10.2009 to ascertain whether the defendant no.2 is entitled to any exemption from the requirements mentioned therein."

4. I do not find any illegality in the impugned order dated 24.7.2012

because interim relief which is granted in a suit is only as an aid to the final

relief to be granted in the suit and once there is no final relief prayed for in

the suit, an interim relief with respect to a non-claimed final relief could not

have been granted as an interim measure.

5. The petition is accordingly dismissed, leaving the parties to bear their

own costs.

VALMIKI J. MEHTA, J SEPTEMBER 01, 2014 KA