Delhi High Court
Bhawalpur Co-Operative Group ... vs Hitesh Kumar Madan & Ors. on 5 December, 2016
$~3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 896/2016
BHAWALPUR CO-OPERATIVE GROUP HOUSING SOCIETY
..... Appellant
Through: Mr. B.R. Kaushik, Advocate
versus
HITESH KUMAR MADAN & ORS. ..... Respondents
Through: Mr. Prosenjeet Banerjee, Advocate with
Ms. Nidhi Parashar and Ms. Anumita Chandra,
Advocates for R-1.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 05.12.2016
CM APPL. 45165/2016 (by the appellant for permission to delete the
name of the respondent No.3 from the array of the parties)
1. In view of the orders passed on 18.11.2016, when the appellant was
directed to delete the name of the respondent No.3 from the array of the
respondents and file an amended memo of parties, no further orders are
required to be passed on this application.
2. The application is accordingly disposed of. Amended memo of parties
enclosed therewith is taken on record.
RFA 896/2016 and CM APPL. 42684-42685/2016
1. The present appeal has been preferred by the appellant/defendant
No.1/Society, who is aggrieved by the order dated 20.09.2016, passed by the
trial court in a suit for permanent and mandatory injunction and recovery of
mesne profits instituted by the respondent No.1/plaintiff in respect of flat
No.B-772, Bahawalpur CGHS Ltd, Plot No.1, Sector 4, Dwarka, New Delhi.
The impugned order has been pronounced on an application filed by the
plaintiff under Order XII Rule 6 CPC, on the basis of admissions made by
the appellant/defendant No.1 in the written statement filed in opposition to
the suit.
2. As per the records, after the pleadings were completed in the suit, the
respondent No.1/plaintiff had filed an application under Order XII Rule 6
CPC praying inter alia that a judgment be pronounced on the basis of
admissions made by the appellant/Society in its written statement,
particularly paras 2, 20, 21, 23 to 26 and 28 of the reply on merits, wherein
it had admitted that the respondent No.1/plaintiff, a member of the Society
was allotted a flat bearing No.721 and the respondent No.2/defendant No.2,
another member was allotted a flat bearing No.772 in terms of a draw of lots
held by the Society on 11.7.2014, without involving the DDA. Thereafter,
the matter was referred by the appellant/Society to the DDA for
regularisation of the draw of lots. In the said draw of lots, the respondent
No.1/plaintiff was allotted flat No.772, which the Society had allotted to the
respondent No.2/defendant No.2.
3. In the impugned judgment, the learned ADJ has recorded the
statement made by the counsel for the appellant/Society that the respondent
No.1/plaintiff can be handed over possession of flat No.772, provided he
vacates flat No.721, which is presently under his occupation. Further,
counsel for the respondent No.2/defendant No.2 had submitted that the
defendant No.2 did not have any objection to vacating flat No.772 under his
occupation and handing over possession thereof to the respondent
No.1/plaintiff, but he should also be entitled to get possession of flat
No.812, which had been allotted to him in the draw of lots conducted by
DDA pursuant to the order dated 17.04.2013, passed by the High Court in
W.P.(C) 846/2013.
4. In view of the submissions made by the counsels for the parties, the
trial court held that there was no dispute on the facts of the case and
accordingly, the application filed by the respondent No.1/plaintiff under
Order XII Rule 6 CPC was allowed. Respondent No.1/plaintiff was directed
to vacate flat No.721 within 15 days from the date of receiving possession of
flat No.772. As far as respondent No.2 is concerned, it was recorded that he
had filed a similar suit, which was pending trial and therefore, his rights
would be adjudicated in the said suit. Aggrieved by the aforesaid decision,
the appellant/defendant No.1/Society has filed the present appeal.
5. Learned counsel for the appellant states that the Society has an
apprehension that the respondent No.1/plaintiff will not vacate flat No.721
and continue to occupying both the flats and if that happens, then the
occupant of flat No.812, Sh. Mukesh Nangia will be left high and dry.
6. The aforesaid submission is vehemently denied by the counsel for the
respondent No.1, who states that his client has no such intention. He states
that on the date of passing the impugned judgment itself, the respondent
No.1/plaintiff through counsel had given an undertaking to the Court that
the respondent No.1/plaintiff shall vacate flat No.721 within 15 days from
the date of receiving possession of flat No.772 from the Society. To
substantiate the said submission, counsel for the respondent No.1/plaintiff
draws the attention of the Court to the statement made by Ms. Nidhi Prashar,
Advocate appearing for the plaintiff, before the trial court as placed at page
37 of the paper book. He clarifies that an execution petition has been filed
by his client for seeking execution of the impugned judgment and decree
dated 20.09.2016 and a similar submission has been made in the said
proceedings as well.
7. This takes care of any apprehension expressed by the
appellant/Society that the respondent No.1/plaintiff will not vacate the flat
presently under his occupation. No other ground has been urged by the
counsel for the appellant to assail the impugned judgment and decree. If
there is any other apprehension that the appellant/Society harbours with
regard to the manner of executing the impugned judgment and decree, it
shall be at liberty to place the same before the Executing Court. While
binding the respondent No.1/plaintiff to the statement made on his behalf as
recorded hereinabove, the present appeal is disposed of alongwith the
pending applications.
HIMA KOHLI, J
DECEMBER 05, 2016
rkb
