Delhi High Court
M/S Mangal Das Vishamber Lal Jain & ... vs North Delhi Municipal ... on 15 March, 2018
$~6
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 15th March, 2018
+ CM(M) 1084/2015 & CM Nos. 25951/2015, 30754/2015,
10167/2017, 24800/2017
M/S MANGAL DAS VISHAMBER LAL JAIN & ORS.
.... Petitioners
Through: Mr. Rajat Aneja with Ms.Chandrika
Gupta & Ms. Nisha Sharma,
Advocates.
versus
NORTH DELHI MUNICIPAL CORPORATION
..... Respondent
Through: Ms. Renu Gupta, Standing Counsel
for NDMC.
Mohd. Elahi, Advocate for proposed
R-2 Mohd. Mursaleen.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. By the petition at hand, the correctness, legality and propriety of
the order dated 09.02.2015 of the Additional Senior Civil Judge
passed on the file of suit (CS no.17/2014) instituted by the petitioners
and order dated 22.07.2015 of the first appellate court passed in appeal
(MCA no.7/2015), affirming the formal order whereby the application
of the petitioners (plaintiffs) seeking an order of injunction under
Order XXXIX Rules 1 and 2 Code of Civil Procedure, 1908 (CPC)
was dismissed.
2. The petitioners had brought the aforesaid civil suit seeking
reliefs in the nature of declaration and permanent injunction against
North Delhi Municipal Corporation (NDMC) vis-á-vis orders issued
by it invoking its jurisdiction under Sections 348 and 349 of Delhi
Municipal Corporation Act, 1957, declaring the building dangerous, in
a part of which (at the ground floor) the plaintiffs claim to have been
in use and occupation as tenants for over five decades, directing it to
be sealed.
3. By the said orders under Sections 348 and 349 of Delhi
Municipal Corporation Act, 1957 issued on 17.10.2014, the building
in question was declared to be dangerous for human habitation. It is
the contention of the petitioners that the said action was mala fide, it
having been initiated at the instance of Mohd. Mursaleen S/o Sh.
Chaudhary Mughal, R/o T-224-A, Gali No.3, Nawab Road, Sadar
Bazar, Delhi-110006, he being the landlord in respect of the
petitioners in the portion referred to above. By the impugned orders,
the trial court and the first appellate court declined to grant any relief
of injunction against demolition or sealing.
4. When the petition at hand was filed, by order dated 04.11.2015,
it was directed that if the respondent NDMC had any plan for
demolition of the property before the next date of hearing, such fact
would be brought to the notice of the court as also the counsel for the
petitioners. The said order was extended by subsequent order dated
03.12.2015 and continued to operate till 17.07.2017, when an
assurance of the counsel for the respondent was recorded that no
demolition action would be taken till the next date, i.e. 01.11.2017.
The order was further extended till today by order dated 01.11.2017.
It is the contention of the petitioners that on 07.12.2015, demolition
action was carried out razing the building substantially. It is their
case that the building was a three storeyed structure and presently only
the outer walls remain, the inner walls and the upper floors have been
brought down, only rubble remaining at the ground level. The
petitioners had filed an application seeking initiation of contempt
proceedings on account of such demolition. For the record, it may be
added that the respondent-Corporation denies that any demolition
action was carried out during the pendency of these proceedings.
5. On the application (CM No.10167/2017) moved under Order I
Rule 10 read with Section 151 CPC, notice was issued to Mohd.
Mursaleen, the person described by the petitioners as the landlord in
their respect, such party having appeared in response, the counsel for
the petitioner clarifying that similar application has already been
moved and is pending before the trial court for impleadment of the
said party in the civil suit and also for corresponding amendments to
the plaint.
6. Be that as it may, Mohd. Mursaleen, in the above facts and
circumstances, is a proper party, if not a necessary party and,
therefore, is impleaded here. It is inherent in this decision that the trial
court will also take an appropriate decision on similar prayer qua the
civil suit - this order, however, not to be construed as endorsing the
prayer for amendment of the plaint in which respect the application of
the petitioner will be considered in accordance with law.
7. After some hearing, the learned counsel representing the
petitioners fairly conceded that these proceedings will not carry the
day for him any further, given the fact that the superstructure in
question has already been brought down substantially, only rubble
remaining at the site, it being of no use to any quarter including the
petitioners. He, thus, submitted, on instructions, that he may be
allowed to withdraw the present petition and instead be given liberty
to move an application for amendment of the plaint to incorporate
additional prayer vis-a-vis his claim for restoration of the right to
enjoy the tenancy rights, which, according to him, still subsist,
notwithstanding the demolition action in respect of the building under
the cover of jurisdiction of the municipal authority under Section 348
of Delhi Municipal Corporation Act, 1957, this based on his
contention that his possessory rights have not been extinguished.
Needless to add in this context that the respondent Mohd. Mursalem
once impleaded formally as a defendant in the suit will have the right
to raise all defences and contentions for consideration at the trial in the
suit.
8. The petition is thus dismissed as withdrawn though with liberty
as aforesaid, granted to the parties.
9. The interim orders stand vacated.
10. This disposes of the pending applications as well.
R.K.GAUBA, J
MARCH 15, 2018
srb
