Delhi High Court
Surender Kumar vs Delhi Development Authority & Ors on 31 January, 2018
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st January, 2018
+ CM(M) 125/2018 and CM 3818-3819/2018
SURENDER KUMAR ..... Petitioner
Through: Mr. Rajeev Sharma, Advocate
versus
DELHI DEVELOPMENT AUTHORITY
& ORS ..... Respondents
Through: Mr. Sanjay Singh, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner had instituted civil suit (now registered as suit
no.12617/2016) on 10.11.2006 initially against Delhi Development
Authority (DDA), the first respondent herein, seeking reliefs in the
nature of declaration to the effect that he is the sole owner of the
subject property and for mandatory injunction against DDA for
mutation of the subject property in his name. It is stated that second to
fourth respondents moved an application on which they were
impleaded in the case which led to the plaint being amended wherein
the petitioner (as the plaintiff) also sought the relief of prohibitory
injunction against them from entering into the subject property or
raising any construction therein or from dispossessing or interfering in
his peaceful possession or enjoyment.
2. It is the case of the petitioner that upon facts coming to light
that the property had been belatedly transferred by the said
respondents in favour of the fifth respondent, she was also impleaded
as additional defendant.
3. The impugned order dated 15.11.2017 would show that the
defendants other than DDA are suffering the proceedings ex parte.
4. The plaintiff claims to have moved an application under Order
VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) on 13.08.2012
on the averments that on 19.12.2008 during the pendency of the suit
he had been forcibly dispossessed by the private parties shown in the
array as defendants. In this light, he also sought to add another prayer
to the suit, i.e. grant of the decree of possession. The said application
moved on 13.08.2012 did not see light of the day or any effective
proceedings. The petitioner moved another application on identical
grounds, and with similar prayer, on 14.12.2016 which has been
dismissed by the trial Court by order dated 15.11.2017, inter alia,
disbelieving the claim of facts about previous application having been
lost and not being traced on record holding the move for amendment
belated and consequently impermissible.
5. It is the aforesaid order which is under challenge by the present
petition.
6. The first respondent/DDA has appeared on advance notice
through counsel. The other respondents, as noted above, are suffering
the proceedings before the trial court ex parte.
7. Having heard the learned counsel for the petitioner and the
counsel for the DDA, this court is of the opinion that the prayer for
amendment ought to be allowed. It may be that the case is of 2006
vintage. It also may be that the petitioner is guilty of neglect on
account of not prosecuting the matter diligently. The fact remains that
the allegations of forcible dispossession on 19.12.2008 during the
pendency of the suit finds resonance in the proceedings arising out of
CM (M) 1128/2010 which is pending in this court. The burden of
proving that the petitioner was dispossessed on 19.12.2008, that too
illegally and forcibly, will remain on the shoulders of the petitioner
(the plaintiff) and he cannot succeed without discharging the said
burden. The fact remains that he came to the civil court in 2006 with
assertion that he was in possession which merited being protected.
The claim that he was dispossessed during the pendency of the case
will have to be tested at the trial. He ought not be denied the relief of
amendment in as much as that would only lead to multiplicity of
proceedings.
8. In the given sequence of events, it is not fair to disbelieve that
he had moved an application for such amendment in 2012 which
would be around the same time as he was prosecuting the matter
relating to forcible dispossession. The impugned order itself shows
that the file had travelled to this court in the context of CM (M)
1128/2010 referred to above which statedly continues to be pending. If
there has been some mis-management of the record, it is not proper to
deny the appropriate relief to the petitioner. Given the neglect,
however, such permission to amend cannot be without appropriate
conditions.
9. In view of the above, the petition is allowed. The prayer for
amendment of the plaint is granted subject to costs of Rs.20,000/- to
be deposited with District Legal Services Authority before the next
date of hearing fixed before the trial court and subject to fresh notices
being served on the amended plaint on the parties which have so far
been suffering the proceedings ex parte.
10. The petition and the applications filed therewith stand disposed
of in above terms.
R.K.GAUBA, J.
JANUARY 31, 2018
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