Delhi High Court
Managing Committee Jan Kalyan ... vs Lt. Governor Of Delhi & Ors on 2 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd November, 2018.
+ CS(OS) 2037/2008
MANAGING COMMITTEE JAN KALYAN
PRIMARY SCHOOL ..... Plaintiff
Through: Mr. Pankaj Sharma, Adv.
Versus
LT. GOVERNOR OF DELHI & ORS. ..... Defendants
Through: Ms. Mini Pushkarna, Ms. S. Bhuyan,
Ms. Shiva Pandey, Ms. Neha Goel,
Advs. for R-2&3.
Mr. Aditya Singhal, Adv. for D-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
IA No.10701/2018 of the plaintiff for restoration of the suit dismissed
in default on 4th September, 2015 and IA No.10703/2018 for condonation of
delay of 1024 days in applying therefor are for consideration.
2. The applications and the replies filed by the defendants no.2&3 East
Delhi Municipal Corporation (EDMC) thereto have been perused and the
counsel for the plaintiff and the counsel for the defendants no.2&3 EDMC
have been heard.
3. The plaintiff, claiming to be a Society registered under the Societies
Registration Act, 1860 instituted the suit, pleading (i) that the plaintiff was
constituted on 14th June, 1971 for the purpose of running a primary school on
a piece of land ad measuring 400 sq. yds. out of Khasra No.432 and 433 of
village Ghonda, Gujaran Khadar Illaqa, Shahdara, Delhi; (ii) the said
property was purchased on 4th January, 1974 by late Shri Raghubar Dayal
Gupta from one Nirmala Devi and Kailasho Devi through General Power of
Attorney (GPA) etc.; (iii) that the plaintiff Society was running a primary
school on the said property since the year 1972 and the school being run
there became a recognised and aided school in the year 1972 with the
approval of the defendant no.1; (iv) that in the year 1978, the Managing
Committee of the Jan Kalyan Primary School, Bhajanpura, Delhi was
illegally, unlawfully, unconstitutionally and contrary to the provisions of the
Delhi School Education Act, 1973, suspended and taken over vide order
dated 20th June, 1978 of the defendant no.1, for a period of three years; (v)
that in the year 1981, with the approval of the defendant no.1, the said Jan
Kalyan Primary School, Bhajanpura, Delhi was closed down and all staff of
the school and the students of the school shifted to the other schools of the
defendant no.2 EDMC; (vi) that the defendants also took over possession of
the property aforesaid; (vii) that since the staff and students of the school had
been absorbed in other schools, the defendants had no right to continue
holding possession of the property of the school; (viii) that the defendants,
after shutting down the school had no right to the property aforesaid; (ix) that
since 1982, the founder Manager of the Society Shri. Raghubar Dayal Gupta
had been making representations for return of possession of the school but to
no effect; (x) that thereafter the plaintiff also called upon the defendants to
return possession of the property aforesaid but to no avail; (xi) that pursuant
to a letter dated 29th August, 1997, the defendant no.2 EDMC demolished the
building of the school, claiming that the same had been donated to defendant
No.3 EDMC; (xii) Shri Raghubar Dayal Gupta filed W.P.(C) No.830/1997
titled as Nirmala Devi & Ors. Vs. The Lt. Governor of Delhi and Ors. in
this Court; (xiii) Shri Raghubar Dayal Gupta died on 16th February, 2003 and
thereafter Shri Naveen Gupta became the President/Manager of the plaintiff
society; (xiv) that W.P.(C) No.830/1997 was vide order dated 22 nd October,
2007 disposed of with liberty to file a suit and condoning delay in filing
thereof; and, (xv) that the defendants do not have any right to the property.
4. The suit came up first before this Court on 26th September, 2008,
when the counsel for the plaintiff sought liberty to move an appropriate
application to amend the plaint and the suit was adjourned to 17 th November,
2008. However no application for amendment was filed and on 17th
November, 2018 again time was sought and the suit adjourned to 16 th
January, 2009. On 16th January, 2009, none appeared for the plaintiff and no
application also had been filed and resultantly the suit was dismissed in
default and for non-prosecution.
5. The applications filed by the plaintiff for restoration of the suit came
up first before this Court on 4 th March, 2009 when the same were allowed
and the suit restored and adjourned to 23rd April, 2009. Though the plaintiff
did not make any application for amendment of the plaint as was stated
earlier, but vide order dated 23rd April, 2009, the plaint was registered as a
suit and summons thereof ordered to be issued to the defendants.
6. Thereafter the suit was adjourned from time to time. The plaintiff filed
IA No.5594/2009 for amendment of the plaint and adjournments granted for
completion of pleadings on the said application. The order dated 6 th
September, 2010 records (i) that the plaintiff wanted to amend the memo of
parties and the plaint, to prosecute the suit under the title Nirmala Devi &
Ors. Vs. The Lt. Governor of Delhi; and, (ii) that the counsel for the
defendants had not opposed the application. The application for amendment
was thus allowed subject to the plaintiff depositing costs of Rs.5,000/- with
the Advocates‟ Welfare Fund of Bar Council of Delhi and the defendants
granted time to file the written statement to the amended plaint.
7. The order dated 13th December, 2010 records that the defendants
no.1&3 namely Lt. Governor of Delhi and Directorate of Education,
Municipal Corporation of Delhi (MCD) adopted the written statement of the
defendant no.2 MCD.
8. Vide order dated 1st May, 2012, the following issues were framed in
the suit:-
"1. Whether the suit is barred by limitation? OPD
2. Whether the suit has not been valued properly for the
purpose of court fee, if so its effect? OPD
3. Whether the suit is bad for non-joinder of necessary
party? OPD
4. Whether the plaintiff is owner of the suit property?
OPP
5. Whether the plaintiff is entitled to a decree for
possession as prayed for? OPP
6. Whether the land vests in Government, if so its effect?
OPD
7. Relief."
and the plaintiff relegated to leading evidence and granted four weeks‟
time to file affidavit by way of examination-in-chief.
9. The order dated 11th March, 2013 records, that it was the claim of the
authorised representative of the plaintiff that affidavit by way of examination
had been filed but the same was not on record. The suit was adjourned for
evidence of the plaintiff to 26th September, 2013. On 26th September, 2013,
the advance copy of the affidavit by way of examination-in-chief had not
been supplied to the counsel for the defendants and the suit adjourned to 27th
February, 2014. There is no order sheet of 27th February, 2014. The order
sheet of 28th February, 2014 records that no witness of the plaintiff had
appeared and adjournment was sought. Last opportunity was granted to the
plaintiff to lead evidence on 28th July, 2014. On 28th July, 2014, though the
witness of the plaintiff appeared but the counsel for the plaintiff sought
adjournment stating that some documents were not on record. The Joint
Registrar also noticed that the affidavit by way of examination-in-chief did
not contain the exhibit marks on the documents sought to be tendered in
evidence. Resultantly, fresh opportunity was granted to the plaintiff to file
affidavit by way of examination-in-chief. No fresh affidavit by way of
examination-in-chief was filed and none appeared for the plaintiff on 27th
January, 2015, 10th August, 2015 and 4th September, 2015, when the suit was
dismissed in default.
10. I may at this stage state that the file of the suit in the physical form is
reported to have been destroyed after making electronic copy thereof and the
file which has been placed before this Court contains printouts of the said
electronic copy but does not contain the written statement, recorded in the
order sheet to be filed by the defendant and/or the application for amendment
of the plaint filed by the plaintiff. The file only contains copies of the plaint
and the application for restoration of the suit and reply thereto.
11. The plaintiff, in the application for restoration of the suit, has shown
the title of the suit as „Managing Committee Jan Kalyan Primary School
Vs. Lt. Governor of Delhi & Ors.‟ and not as recorded in the order dated 6th
September, 2010 to be amended to „Nirmala Devi & Ors. Vs. The Lt.
Governor of Delhi‟.
12. The plaintiff has pleaded, (i) "that the father of the plaintiff died on
16.02.2003 and after that the plaintiff from the year 2003 till 4th September,
2015 had been diligently pursuing the proceedings before this Hon‟ble
Court"; (ii) that the plaintiff, in the year 2015, has suffered problems in spine
due to long sittings in one position in his office, for which the plaintiff was
unable to move; (iii) that the papers pertaining to the prolonged disease are
annexed; (iv) the plaintiff became totally dependent on the counsel for the
conduct of the present case; (v) the plaintiff also suffered a financial crisis;
(vi) that the plaintiff was in touch with his earlier counsel through whom he
was pursuing the suit and had complete faith in his counsel; (vii) the plaintiff
was kept in dark about the actual status of the case; (viii) the plaintiff was
infact waiting for his cross-examination; and, (ix) when the counsel for the
plaintiff failed to give any details of the proceedings in the suit for a period
of three years, the plaintiff became suspicious that his counsel was
misleading him and on making enquiries learnt that the suit stood dismissed
on 4th September, 2015.
13. The reason given in the application for condonation of delay in
applying for restoration of the suit are the same.
14. The plaintiff, along with the applications has filed prescription dated
10th November, 2015 of Nidaan Medicare Nursing Home & Maternity
Center at Indirapuram, Ghaziabad in the name of Naveen Gupta, 43 years
diagnosing the disease as "IL Spondylosis" and prescribing application of
Volini Gel and MRI tests. The said prescription also contains an
endorsement dated 20th July, 2016 prescribing some other medicines. The
plaintiff has also filed MRI - Lumbo-Sacral Spine report from Platinum
Imaging Centre at 9, Dayanand Vihar, New Delhi revealing Naveen Gupta
to be suffering from "early lumbar spondylosis with disc desiccation
changes", "left paracentral and foraminal disc protrusion" and "impingement
upon left L5 traversing nerve root". The plaintiff has also filed some other
medical prescriptions.
15. The affidavits accompanying the applications are of Naveen Gupta son
of late Shri. Raghubar Dayal Gupta, as Manager of the plaintiff school.
16. The defendants no.2&3 EDMC, in their replies to the applications
have inter alia pleaded (i) that all the members of the plaintiff could have
pursued the suit; (ii) that the plaintiff was given several chances to lead
evidence and the suit was dismissed only when the plaintiff failed to avail
the said chances; (iii) the plaintiff cannot take advantage of its own wrongs;
and, (iv) that the medical certificates filed by the plaintiff also do not
disclose any such illness so as to prevent following up of the suit.
17. I have enquired from the counsel for the plaintiff, how the averements
in the plaint, of owners of the land namely Nirmala Devi and Kailasho Devi
having executed the GPA in favour of late Shri. Raghubar Dayal Gupta and
of late Shri. Raghubar Dayal Gupta having founded the plaintiff Society and
which plaintiff Society was operating a school from the property, disclosed
the title of the plaintiff to be in a position to maintain the present suit for
recovery of possession of immovable property on the basis of title.
18. The counsel for the plaintiff states that he has read only the application
for restoration and is not aware about the suit.
19. In considering an application for restoration of the suit, particularly an
application filed after a delay of more than three years, the question, whether
the suit itself is maintainable or not, is of relevance inasmuch as if the suit is
not maintainable on the face of the plaint, no purpose would be served in
restoring the same.
20. The suit, as aforesaid was found to be not maintainable on the
averments in the plaint, as evident from the counsel for the plaintiff having
sought adjournments to amend the plaint. No amendment was carried out
and the suit allowed to be dismissed in default. Thereafter, taking advantage
of the change of Roster, the suit was got restored and summons thereof
issued. Though the plaintiff thereafter sought amendment and which was
permitted, converting the suit from that filed by the plaintiff i.e. „Managing
Committee of the Jan Kalyan Primary School‟ to that filed by „Nirmala Devi
and Kailasho Devi‟ but not only the scanned copy of the file before this
Court does not contain the said amendment, but it appears that the plaintiff
also is oblivious of the same in as much as the applications for restoration of
the suit and condonation of delay in filing thereof also have been filed
describing the suit to have been filed by the Managing Committee of the Jan
Kalyan Primary School and not by Nirmala Devi and Kailasho Devi. The
applications are liable to be dismissed on this ground alone.
21. Shri Naveen Gupta, who has filed the applications, has also filed the
same in his capacity "as Manager of the plaintiff school" and not as attorney
of Nirmala Devi and Kailasho Devi. However the reasons given for
dismissal of the suit and for delay in applying for restoration thereof are also
of Naveen Gupta, Manager of Jan Kalyan Primary School and not as
attorney of Nirmala Devi and Kailasho Devi.
22. The counsel for the plaintiff is unable to respond.
23. No ground for restoration of the suit and/or for condonation of delay
in applying therefor is made out.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
NOVEMBER 02, 2018
„pp‟
