Delhi High Court
Raj Kumar Yadav vs Delhi Development Authority on 28 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th September, 2018.
+ RSA 90/2018
RAJ KUMAR YADAV ..... Appellant
Through: Mr. Atul Kumar Sharma & Mr. Sachin
Sangwan, Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.24457/2018 & 24460/2018 (both for exemptions)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
RSA No.90/2018 & CMs No.24458/2018 & 24459/2018 (both for
condonation of delay of 31 days in filing & 57 days in re-filing the
appeal)
3. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the order [dated 30 th October, 2017 in RCA
No.31/2016 of the Court of Senior Civil Judge, New Delhi] of dismissal of
First Appeal under Section 96 of the CPC preferred by the appellant against
the judgment and decree [dated 7th October, 2016 in Suit No.448/2014 of the
Court of Civil Judge, West District, Delhi] of dismissal of suit filed by the
appellant / plaintiff for mandatory injunction directing the respondent /
RSA 90/2018 Page 1 of 5
defendant Delhi Development Authority (DDA) to allot a shop to the
appellant / plaintiff against the demolition slip bearing No.4018 dated 30th
April, 1981 issued by the respondent / defendant DDA on the date when the
shop of the appellant / plaintiff was demolished by the respondent /
defendant DDA, "promising to allot the alternative accommodation thereon
to the plaintiff".
4. This appeal is accompanied with application for condonation of delay
of 31 days in filing thereof and 57 days in re-filing thereof.
5. The appeal along with the applications came up first before this Court
on 1st June, 2018 when the counsel for the appellant / plaintiff, instead of
addressing arguments, sought adjournment to bring certain documents on
record. Accordingly, the hearing was adjourned to 26th September, 2018.
On 26th September, 2018, no additional documents were found to have been
filed and again adjournment was sought. Observing, that if the counsel for
the appellant is not ready to address arguments on admissibility of the
appeal, the appeal should not have been got listed, the appeal was posted to
today for hearing.
6. I may record that a second appeal under Section 100 of the CPC is not
to be admitted as a matter of course and Supreme Court in Surat Singh Vs.
Siri Bhagwan (2018) 4 SCC 562 and Vijay Arjun Bhagat Vs. Nana
Laxman Tapkire 2018 SCC OnLine Del 518 has reiterated that before
issuing notice of a Second Appeal, the High Court has to satisfy itself that
the same entails a substantial question of law and frame the said substantial
question of law.
RSA 90/2018 Page 2 of 5
7. The counsel for the appellant / plaintiff today, draws attention to page
122 of the paper book, being the photocopy of receipt purportedly issued by
the respondent / defendant DDA and recording that 'one jhuggi in
occupation of the appellant / plaintiff at Jail Road, Nangal Raya, Delhi was
demolished on 30th November, 2011'. The counsel for the appellant /
plaintiff argues, (i) that the shop of the appellant / plaintiff was 'acquired' for
construction of Janak Setu flyover; and, (ii) that the appellant / plaintiff was
promised alternate plot but the same has not been given to him and for which
the suit was filed.
8. I have enquired from the counsel for the appellant / plaintiff, where is
the promise which is claimed to have been made to the appellant / plaintiff.
9. The receipt, to which attention has been drawn, does not contain any
such promise.
10. The counsel for the appellant / plaintiff states, "that whenever there is
a demolition, alternate plot is allotted". However, on being asked to show
from where he gathered so, he again seeks adjournment.
11. The counsel for the appellant / plaintiff has not argued, that under any
law or statutory or beneficial scheme there is any right of the appellant /
plaintiff to any alternate plot, seeking which the suit, from which this Second
Appeal arises, was filed. What is being referred to by the counsel for the
appellant / plaintiff as a shop, in the receipt relied upon, is described as a
'jhuggi'. No right of the appellant / plaintiff to the land underneath the
jhuggi has been disclosed. In fact, in the receipt, the name of the appellant is
mentioned against the column "name of the squatter / occupant". Therefrom,
it is clear that the appellant / plaintiff as per his own document, was merely a
RSA 90/2018 Page 3 of 5
squatter over public land, for the purpose of a shop, as distinct from
residence. It is thus clear that the appellant / plaintiff had no entitlement
asserting which the suit was filed.
12. No other argument has been urged.
13. Though in the light of above, there is no need for me to deal with the
findings of the Suit Court affirmed by the First Appellate Court but for the
sake of record, it may be stated that the respondent / defendant DDA
disputed the receipt aforesaid based on which the suit was filed and stated
that the receipt bearing serial No.4018, as was the number of the receipt
relied upon by the appellant / plaintiff, was issued in the name of one Jagan
Nath in respect of his jhuggi demolished at Kingsway Camp; it was pleaded
that the appellant / plaintiff had forged the receipt, relying whereon the suit
was filed.
14. The Suit Court held that the appellant / plaintiff has failed to prove
that he was in possession of the jhuggi which he claimed to have been
demolished and had concealed material facts and resultantly dismissed the
suit.
15. The First Appellate Court, in addition held that the suit for mandatory
injunction filed in the year 1993, when the cause of action had accrued in
1981, was also barred by time and that the appellant / plaintiff had also
admitted that he had been allotted an alternate plot in lieu of his demolished
shop at another location.
16. There is no merit in the appeal.
RSA 90/2018 Page 4 of 5
17. The same does not raise any substantial question of law.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 28, 2018
'gsr'
