Delhi High Court
Smt. Fatima Begum & Ors. vs Shri Tanvir & Ors. on 3 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.69/2015 & CM No.2766/2015
% 3rd August, 2016
SMT. FATIMA BEGUM & ORS. ..... Appellants
Through: Mr. Pardeep Gupta with Mr. Parinav Gupta
and Ms. Manshi Gupta, Advocates.
versus
SHRI TANVIR & ORS. ..... Respondents
Through: Mr. Ajjay Arora with Mr. D.K. Puchnanda,
Advocates for NDMC.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) is filed against the concurrent Judgments of courts below;
of the Trial Court dated 06.09.2013 and the First Appellate Court dated
19.11.2014; by which the courts below have disposed of the suit on the
preliminary issue holding that whether the suit is no longer maintainable on
account of regularisation of the property by the Municipal Corporation of Delhi
(MCD)/defendant no.3.
2. Appellant/plaintiff filed the subject suit for permanent and
mandatory injunction against a total of four defendants. Defendant no.1 Sh.
Tanvir and defendant no.2 Sh. Rehmat are private persons and defendant nos.3
and 4 are public authorities being MCD and SHO, Police Station Lahori Gate
respectively. The relief clauses of the plaint read as under:-
"a) pass a decree of permanent injunction in favour of the plaintiffs and
against the defendants thereby restraining the defendants no.1 and 2 from
carrying out the illegal and unauthorised construction at the property
No.1164, Gali Samosan, Farash Khana, Delhi-110006 as shown in the site
plan attached without getting due permission from the defendant no.3 and
without getting the site plan sanctioned;
b) pass a decree of permanent injunction in favour of the plaintiffs and
against the defendants thereby directing the defendants no.3 and 4 to take
action against the defendants no.1 and 2 and to demolish the illegal and
unauthorised construction at the property No.1164, Gali Samosan, Farash
Khana, Delhi-110006 and remove the encroachment at point „B‟ as shown
in the site plan attached;
c) Pass any other further order, which this Hon‟ble Court may deem fit
and proper in the facts and circumstances of the case in favour of the
plaintiffs and against the defendants." (underlining added)
3. The relief clauses of the plaint are based on the cause of action stated
in para 3 and 6 of the plaint and which read as under:-
"3. That the property of the plaintiffs is a very old construction and there
are two passages to the property of the plaintiff and the defendants no.1 and 2
as shown at Point „A‟ and at Point „B‟ in the site plan attached with the plaint
and the occupants of both the properties have been having easementary rights
in both these passages and since the passage shown at Point „A‟ is very narrow,
the passage shown at Point „B‟ is more commonly used by the occupants of
both the properties as the passage shown at Point „A‟ is only 2‟9‟‟ wide
and only one person can go through the same at a time.
xxxxx
xxxxx
6. That the defendant no.1 and 2 are not only carrying out the illegal and
unauthorised construction at the site, they have also encroached upon the
common passage shown at Point „B‟ in the site plan attached and have also put
a gate by covering the passage shown at Point „B‟, which is evident by the
photographs attached herewith the plaint and by that encroachment, the
defendants no.1 and 2 are depriving the plaintiffs from their valuable
easementary right of the passage shown at Point „B‟." (underlining added)
4. Admittedly the concurrent judgments of the courts below disposed of
the suit only on the ground that the illegally constructed portion of the property of
defendant nos.1 and 2 has been demolished and the balance of the property stands
regularised by defendant no.3/MCD. That part of relief clause (b) as to the
entitlement of the appellants/plaintiffs of passage from point B, which is the
subject matter of relief clause (b) and cause of action in paras 3 and 6, have not
been decided.
5. It is trite that a suit cannot be disposed of, much less under Order VII
Rule 11 CPC, without deciding one main cause of action and one important relief
claimed in the suit. Since the concurrent judgments of the courts below do not
deal with the relief of access and passage from point B, hence disposing of the
suit without deciding this aspect, more so by deciding an unrelated preliminary
issue, is clearly illegal.
6. In view of the above, the substantial question of law which arises for
the second appeal is as under: -
"Whether a civil suit can be disposed of without deciding one main
cause of action and one main relief in the suit?"
7. In view of the above discussion, the substantial question of law is
answered in favour of the appellants/plaintiffs and against respondents by holding
that since the cause of action stated in paras 3 and 6 of the plaint and relief clause
(b) being the entitlement of the appellants/plaintiffs from point B, does not stand
decided by the impugned judgments, hence the impugned judgments are set aside
thereby restoring the suit to the extent of cause of action of paras 3 and 6 of the
plaint and relief clause (b) of entitlement of passage from point „B‟. The suit is
remanded for decision on this cause of relief of entitlement of appellants/plaintiffs
of entry from point B as per relief clause (b) based on cause of action paras 3 and
6 with the other related facts.
8. The second appeal is allowed and the parties are directed to appear
before the District and Sessions Judge (Central), Tis Hazari Courts, Delhi on
31.08.2016 and the District and Sessions Judge (Central) will mark the suit for
disposal in terms of the present judgment to a competent court.
AUGUST 03, 2016 VALMIKI J. MEHTA, J
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