Delhi High Court
Anand Kumar Gautam vs Anand Prakash Bansal & Anr on 22 August, 2017
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 900/2017
ANAND KUMAR GAUTAM ..... Petitioner
Through: Mr. S.C. Rana, Adv.
Versus
ANAND PRAKASH BANSAL & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 22.08.2017
CM No.30018/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM(M) 900/2017 & CM No.30019/2017 (for stay)
3. This petition under Article 227 of the Constitution of India impugns
the order [dated 22nd April, 2017 in MCA No.2036/2016 of the Court of
Additional District Judge (ADJ)-01 (South), New Delhi] of dismissal of an
appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908
(CPC) preferred by the petitioner against the order dated 3 rd July, 2015 in CS
No.261/2013 of the Court of Senior Civil Judge (South), Saket Courts, New
Delhi allowing the application of the respondents/plaintiffs under Order
XXXIX Rules 1&2 CPC and restraining the petitioner/defendant from
opening/installing doors/windows/balconies "in the suit property towards
gali of the plaintiff as shown in blue colour in the site plan and to close the
same, in case they have been opened" till final disposal of the suit on merits.
4. The petitioner, though preferred the appeal aforesaid, but the
impugned order dated 22nd April, 2017 records that the petitioner/defendant
chose not to argue the appeal inspite of taking four adjournments in the past
and inspite of adjournment being refused on 22nd April, 2017. The learned
ADJ has in the circumstances, dismissed the appeal after hearing the counsel
for the respondents/plaintiffs and perusing the record.
5. The petitioner/defendant having chosen not to argue the appeal, cannot
have a second round by way of this petition under Article 227 of the
Constitution of India. The supervisory jurisdiction of this Court is to enable
this Court to correct the errors, if any, capable of interference in such
jurisdiction, committed by the Courts subordinate to this Court. However,
the jurisdiction under Article 227 of the Constitution is not meant to be
invoked when the litigant invoking the same chooses not to pursue the
proceedings before the Trial Court and wants to substitute this Court to, for
the first time, adjudicate the dispute. The jurisdiction under Article 227 of
the Constitution cannot be converted into appellate jurisdiction. This Court
in Dewan Daulat Rai Kapur Vs. R. Chatha Ram (1986) 30 DLT 364 held
that the High Court, in exercise of powers of superintendence under Article
227, cannot for the first time determine question of law without there being
any determination of those questions by the Subordinate Court. Power of
superintendence was held to not include power to determine even pure
questions of law which questions have not been determined by Subordinate
Court. Supreme Court also in Montford Brothers of St. Gabriel Vs. United
India Insurance (2014) 3 SCC 394 held that the High Court erred in setting
aside the judgment of Motor Accidents Claim Tribunal by ignoring the fact
that the issue had not been pressed before the Tribunal. It was held that the
High Court, for the first time in a writ petition under Article 227, could not
have decided the issue. It was further held that petition under Article 227
could be exercised for limited purpose only.
6. It is also not as if there was any reason for the petitioner/defendant to
have not argued the appeal. Neither has any reason been set out in the
memorandum of this petition nor is the counsel able to state so on enquiry
and vaguely blames the advocate for the petitioner/defendant before the
Appellate Court.
7. Five adjournments in a row are inexcusable and cannot be
countenanced.
8. Though the petition is liable to be dismissed on this ground alone but
the counsel for the petitioner/defendant has also been heard on merits.
9. Though the learned ADJ exercising powers as an Appellate Court has
merely affirmed the view taken by the learned Senior Civil Judge but the
learned Senior Civil Judge is found to have given detailed reasons for grant
of the interim injunction.
10. It is not in dispute that in a suit filed by the mother of the
respondents/plaintiffs against the predecessor-in-interest of the
petitioner/defendant, the predecessor-in-interest of the petitioner/defendant
had been restrained by a decree of permanent injunction from so opening
doors and windows towards the gali which was held to be a private street
and not a public street. The learned Senior Civil Judge has primarily based
the interim order thereon.
11. The counsel for the petitioner/defendant has argued that even as per
the judgment and decree against the predecessor-in-interest of the
petitioner/defendant, the predecessor-in-interest of the petitioner/defendant
or subsequent purchaser were entitled to open ventilators towards that side.
Attention in this regard is drawn to page 37 of the paper book being the first
para of the judgment dated 3rd June, 1989 of the Court of Sh. R.S. Mahla,
Sub Judge, Ist Class, Delhi in Suit No.12/1982.
12. However, a perusal of the relief granted in the said judgment does not
show any such liberty having been given to the petitioner/defendant and the
argument of the counsel for the petitioner/defendant is based on a misreading
of the judgment inasmuch as he is relying on the pleadings of the
predecessor-in-interest of the petitioner/defendant and not the relief given in
the suit to the mother of the respondents/plaintiffs.
13. The counsel for the petitioner/defendant has then contended that
though the judgment dated 3rd June, 1989 has become final but there were
lots of flaw therein. It is also stated that Municipal Corporation of Delhi has
filed a report stating that the "gali" is a public street.
14. It is also the argument of the counsel for the petitioner/defendant that
by way of the interim order, the final relief which could have been granted in
the suit, has been granted and not only has the petitioner/defendant been
restrained from opening any windows but has also been directed to close the
existing openings.
15. In view of the judgment against the predecessor-in-interest of the
petitioner/defendant, no error is found in the said direction also.
16. All the other questions raised are subject matter of final adjudication
in the suit. For the purposes of interim order, the judgment against the
predecessor-in-interest of the petitioner/defendant would bind the
petitioner/defendant.
17. There is no merit in the petition.
18. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 22, 2017
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