Kishan Lal vs Rk Associates And Anr
2018 Latest Caselaw 2343 Del

$~ R-9
      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Decided on:- 16th April, 2018

+      C.R.P. 101/2011 and CM 14140/2011

       KISHAN LAL                                 ..... Petitioner
                         Through:     Mr. Ankit Jain, Advocate
                         versus

       RK ASSOCIATES AND ANR             ..... Respondents
                    Through: Mr. Hemant Malhotra, K.J.S.
                             Kalra and Mr. Pankaj Malhotra,
                             Advs. for R-1.
                             Mr. P.D Gupta, Sr. Adv. with
                             Mr. Abhishek Gupta, Advs. for
                             R-2.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                   ORDER (ORAL)

1. The first respondent had instituted the suit (CS no.304/2009) against the petitioner (impleaded as the first defendant) alleging wrongful dis-possession from the subject property described as plot admeasuring 200 sq. yds. situate in the revenue estate of Village Zamrudpur, Delhi. By the said suit, the first respondent (plaintiff) prayed for recovery of possession, permanent injunction and mesne profits from the petitioner (the defendant). On the application moved by M/s. DLF Universal Ltd. under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (CPC), the said party claiming right and interest in the subject property was impleaded as the second defendant. Later,

the said second defendant was substituted by the second respondent, it having statedly acquired right, title and interest from the former and, thus, having stepped into its shoes. Concededly, the plaintiff of the suit had pleaded a case for the aforementioned reliefs also on the basis of title. The suit was put to trial and was decided by judgment dated 05.03.2011. The Additional District Judge, at that stage, in the final judgment, observed that the impleadment of the second respondent was erroneous and resultantly deleted it from the array of parties. He decreed the suit granting the reliefs of recovery of possession of the subject property and directed payment of damages at the rate of Rs.10,000/- p.m. from the date of wrongful dispossession till restoration of the possession.

2. The revision petition at hand was filed by the first defendant of the suit against whom the aforementioned decree was passed, inter alia, on the ground that the same is perverse and based on no evidence, it being impermissible for the civil Court to grant mesne profits in proceedings primarily taken out under Section 6 of the Specific Relief Act, 1963.

3. The copy of the plaint of the suit in which the impugned judgment was passed has been filed (Annexure B). A bare perusal shows that it was not based on the provision contained in Section 6 of the Specific Relief Act, 1963. Even if the suit has been so treated, it has to be borne in mind that the recovery of possession was not the only relief claimed. The plaintiff had also sought permanent injunction and mesne profits. In these circumstances, the judgment

cannot be challenged by invoking revisional jurisdiction of this court in terms of Section 6 of the Specific Relief Act, 1963. The appropriate remedy is by a regular civil appeal under Section 96 CPC.

4. This revision petition was entertained in 2011. It will be harsh to throw it out after almost seven years as not maintainable. It is deemed appropriate and, therefore, directed that the revision petition be treated as a regular first appeal. The Registry shall do the needful.

5. The regular first appeal, after registration, shall be listed before the appropriate roster bench on 10.05.2018.

R.K.GAUBA, J.

APRIL 16, 2018 yg