Delhi High Court
Delhi Development Authority vs Subhash Bhardwaj on 31 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:-31st August, 2018.
+ RSA 26/2017 & CM Nos. 2663/2017 (stay) & 2664/2017(for
condonation of delay of 18 days in filing)
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. Sanjeev Sagar and Ms. Sunita
Gupta, Advs.
versus
SUBHASH BHARDWAJ .... Respondent
Through: Mr. N. S. Dalal and Mr. Devesh
Pratap Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of the
Civil Procedure, 1908 (CPC) impugns the order [dated 1st August, 2016 in
RCA No. 377/2016 of the Court of Additional Senior Civil Judge, West] of
dismissal as barred by time of the first appeal under Section 96 of the CPC
preferred by the appellant/ defendant/ DDA against the judgment and
decree [dated 5th August, 2011 in Suit No. 296/2008 of the Court of Civil
Judge, West] allowing the suit filed by the respondent/ plaintiff and
restraining the appellant/ defendant/ DDA by a decree of permanent
injunction from dispossessing the respondent/plaintiff, from premises No.
RZ-1, Dabri Extension, Plot No. 44, measuring 310 Sq. Yds. Out of khasra
No. 14/22 situated in the area of village Dabri, colony known as Dabri
Extension, New Delhi, without due process of law.
2. This appeal is accompanied with an application for condonation of
delay of 18 days in filing thereof.
3. The appeal came up first before this Court on 23 rd January, 2017
when notice thereof was issued, albeit without indicating the substantial
question of law which the appeal entails.
4. The counsel for the respondent appears.
5. The Suit Court record and the First Appellate Court record
requisitioned in this Court has been perused and the counsels heard.
6. The judgment and decree in favour of the respondent/ plaintiff and
against the appellant/ defendant, as aforesaid, is only of restraining the
appellant/ defendant/ DDA from, without due process of law, dispossessing
the respondent/ plaintiff from the property aforesaid. It is not in dispute
that the respondent/ plaintiff is in possession of the subject property.
Though the appellant/ defendant/ DDA, immediately on receipt of
summons of the suit, unless the respondent/ plaintiff had recently trespassed
into the property, ought to have made a statement that the appellant/
defendant/ DDA will not dispossess the respondent/plaintiff save by due
process of law and initiated proceedings for recovery of possession of the
property aforesaid under such law as may be available / applicable to the
appellant/ defendant/ DDA, but due to the appellant/ defendant/ DDA
mechanically contesting the suit and preferring appeals against the
judgment therein, the respondent/ plaintiff has remained in possession of
the property now for over 10 years since the institution of the suit.
7. This appeal, even if allowed, will only result in dismissal of the suit
and the appellant/ defendant/ DDA will still have to take action, as
permissible to it under law for dispossession of the respondent/ plaintiff
from the property.
8. Though, as aforesaid, the suit was only for injunction against forcible
dispossession, but the Suit Court in its judgment, while granting such
injunction to the respondent/ plaintiff, made certain other observations and
returned findings with respect to the respective rights of the parties with
respect to the property. The same, in a suit for injunction simpliciter, was
not permissible.
9. The counsel for the respondent / plaintiff has fairly stated that the
said findings/ observations be set aside and it be ordered that in the
proceedings, as may be available in law to the appellant / DDA, for
dispossession of the respondent/ plaintiff, the judgments in suit and First
Appeal impugned in this appeal shall have no bearing and all pleas as may
be available to the parties in law will remain available to them.
10. Though the first appeal has been dismissed as barred by time and as
such there is no decree but as per dicta of the Supreme Court in Shyam
Sundar Sarma Vs. Pannalal Jaiswal (2005) 1 SCC 436, Second Appeal
lies against such dismissal of the First Appeal as barred by time also.
11. Though there is some controversy as to what is the due process of
law which the appellant/ defendant/ DDA is required to take for
dispossession of the respondent/ plaintiff from the property, if entitled
thereto, is, by issuing a notice simpliciter and thereafter taking possession
by use of reasonable force or by instituting proceedings under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 or by filing a
civil suit for recovery of possession, but this is not the stage for going into
the said aspect. Suffice it to state that DDA, hopefully this time around,
will be wiser and select the proceedings permissible to it in law for
dispossession of the respondent/ plaintiff.
12. For the aforesaid reasons, need to go into further factual details is not
felt. With the consent of the counsel for the respondent/ plaintiff, the
findings/ observations in the judgment of the Suit Court on the respective
rights of the parties to the property are set aside and the decree, only against
forcible dispossession without due process of law, is continued. It is further
clarified that it will be open to the appellant/ defendant/ DDA to follow the
process of law as available to it for dispossession of a person as the
respondent/ plaintiff and in the said proceedings if any initiated by the
appellant/ defendant/ DDA, none of the observations / findings in the
impugned judgments shall have any bearing / sway over those proceedings
and all contentions available in law to the parties against each other shall so
remain available.
13. The appeal is disposed of.
RAJIV SAHAI ENDLAW, J
AUGUST 31, 2018
SR..
