Delhi High Court
Devinder Kumar vs B.S.E.S.Yamuna Power Ltd. & Ors. on 20 January, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 792/2009 & CM 12878/2014 (for dismissal of petition by
R-2&3)
% Decided on: 20th January, 2015
DEVINDER KUMAR ..... Petitioner
Through Mr. Yashpal Bharti, Mr. Bhavesh,
Advs.
versus
B.S.E.S.YAMUNA POWER LTD. & ORS. ..... Respondent
Through Mr. Rahul Malhotra, Adv. for R-1.
Ms. Sunita Tiwari, Adv. for R-2&3.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. The present petition impugns the order dated 23rd August, 2008 passed
by the learned Civil Judge declining to grant interim relief of directing the
officials of respondent No.1 to install the meter and to restrain the
respondents No.2 and 3 from preventing the respondent No.1 from installing
the connection and the order dated 12th February, 2009 whereby the Civil
Judge dismissed the application for review of the order dated 23 rd August,
2008 and thereby praying directions to the respondent No.1 to install the
meter and restrain the other respondents from preventing respondent No.1
from installing the connection.
2. A brief narration of facts which led to the filing of the present petition
is that the petitioner herein filed a Civil Suit No.199/2010 (earlier
No.192/2007) before the learned Civil Judge, Karkardooma Courts, Delhi for
permanent and mandatory injunction against the respondents claiming
himself to be the adopted son of late Nathu Singh Bodh and a co-sharer of
the suit property, thereby seeking directions against respondent No.1 for
installing an electricity meter in his name in the suit property and restraining
respondents No.2 and 3 from creating hindrance in the installation. In the
said suit the petitioner filed an application under Order XXXIX Rule 1and 2
CPC which was dismissed by the learned Civil Judge vide order dated 3 rd
May, 2007. An appeal against the said order was also dismissed by the
learned ADJ being Misc. Civil Appeal No.41/2007 on 9 th October, 2007
finding no prima facie case in favour of the petitioner. Thereafter the
petitioner again filed an application under Section 151 CPC seeking the
same interim relief which was dismissed vide the impugned order dated 23 rd
August, 2008. The petitioner filed an appeal against the said order but later
withdrew the same on 19th September, 2008 and filed a review petition
before the learned Civil Judge against the order dated 23 rd August, 2008
which was dismissed on 12th February, 2009 which is also impugned before
this Court.
3. Besides the Civil Suit No.199/2010 the petitioner also filed a suit for
partition, possession, permanent and mandatory injunction against the
respondent No.2 and 3 herein being Suit No.15/2004 which was dismissed
by the learned Civil Judge vide order dated 30 th July, 2005 returning a
finding that Smt. Ram Kaur, the respondent No.2 herein, was the sole owner
of the suit property. The appeal against the said judgment dated 30 th July,
2005 being Civil Appeal No.40/2007 has also been dismissed by the learned
ADJ on 26th April, 2008. Subsequent thereto the respondent No.2 herein
filed a suit for possession, declaration, damages, etc. against the petitioner
being Civil Suit No.775/2006 before the learned Civil Judge seeking eviction
of the petitioner from the suit property. The said suit No.776/2006 was
decreed in favour of respondent No.2 by the learned Senior Civil Judge vide
judgment dated 1st April, 2010. The petitioner also filed another suit for
partition, permanent and mandatory injunction and possession against
respondent No.2 and 3 herein and two more persons being Civil Suit
No.304/2008 which was also dismissed by the learned Senior Civil Judge on
1st April, 2010. The petitioner filed an appeal against the judgment and
decree passed in Suit No.776/2006 vide RCA No.56/2010 which was
dismissed on 20th October, 2012 by the learned Additional District Judge,
Karkardooma Courts. Further the appeal against the order dated 1 st April,
2010 dismissing the Civil Suit 304/2008 filed by the petitioner was also
dismissed by the learned Senior Civil Judge on 20th October, 2012. The
respondent No.2 herein filed an Execution Petition No.38/2010 in terms of
the judgment and decree dated 1st April, 2010 passed in Suit No.776/2006,
wherein the learned executing Court passed an order of warrant of
possession and attachment of properties by breaking open the locks and
doors with the help of Police aid.
4. By the impugned order dated 23rd August, 2008, the learned Judge
noted that a similar application under Order 39 Rule 1 and 2 CPC filed in
suit was dismissed by the Court on 3rd May, 2007 and appeal against the said
order was also dismissed on 9th October, 2007. The learned Civil Judge held
that while dismissing the earlier application the Court had noted that the
plaintiff had not come to the Court with clean hands and had suppressed
material facts i.e. dismissal of the other suit filed by him being Suit
No.15/2004 vide order dated 30th July, 2005 wherein the respondent No.2
herein was held to be the owner of the premises. After finding of a
competent Court that the plaintiff had no right in the suit property and that
the respondent No.2 was the sole owner of the suit property, the plaintiff
could not have claimed to have a prima-facie strong case in his favour
seeking interim injunction. There was neither any error apparent in the order
dated 23rd August, 2008 nor any illegality, however still the petitioner filed
the review petition which was dismissed by the other impugned order dated
12th February, 2009 whereby it was noted that all the contentions of the
petitioner have been noted and dealt with and thus no ground for review was
made out.
5. A perusal of the facts as noted above would show that the petitioner
filed repeated suit and repeated applications for the same cause of action and
thus misused the due process of law. Before this Court also petitioner has
not been able to either show a prima-facie case in his favour or balance of
convenience or that an irreparable injury would be caused to him in case the
interim injunction is not granted. As noted above judgment and decree of
possession followed by warrant of attachment has already been passed
against the petitioner and in favour of the respondent No.2. The petitioner in
the present petition did not bring to the notice of this Court that the suit for
partition, possession, permanent and mandatory injunction filed by him
against respondent No.2 and 3 was dismissed by learned Civil Judge on 30th
July, 2005 holding that Smt. Ram Kaur was the sole owner of the suit
property.
6. In view of this material concealment and there being no illegality in
the impugned orders, the present petition is dismissed with costs of
`10,000/- to be paid by the petitioner to the Delhi High Court Legal Services
Committee within four weeks.
7. CM 12878/2014 (for dismissal of petition by R-2 and 3) is disposed
of.
(MUKTA GUPTA)
JUDGE
JANUARY 20, 2015
'ga'
