Delhi High Court
Om Prakash vs Sumitra Devi on 24 March, 2021
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24.03.2021
+ CM(M) 265/2021
OM PRAKASH ..... Petitioner
Through Mr.Sharavan Dev, Adv.
versus
SUMITRA DEVI ..... Respondent
Through Mr.Rahul Shukla, Mr.Bhuvan,
Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
CM 11779/2021(exemption)
Allowed, subject to all just exceptions.
CM(M) 265/2021 & CM 11778/2021
1. This petition has been filed by the petitioner challenging the
orders dated 18.10.2019 and 07.03.2020 passed by the learned Civil
Judge-07, Central, Tis Hazari Courts, New Delhi in suit, being CS SCJ
No.94260/2016, Om Prakash v. Sumitra Devi.
2. By the Impugned Order dated 18.10.2019, the learned Trial
Court was pleased to dismiss the application filed by the petitioner,
Signature Not Verified
Signed By:SHALOO BATRA
Location:
Signing Date:26.03.2021
15:40 CM(M) No.265/2021 Page 1
who is the plaintiff in the suit, seeking a direction to the MCD to file
on record various documents as was earlier directed by the learned
Trial Court in the order dated 07.12.2002. By the subsequent order
dated 07.03.2020, the application of the petitioner seeking review of
the order dated 18.10.2019 has been dismissed.
3. The suit has a chequered history inasmuch as the same has been
filed by the petitioner claiming unauthorized construction being
carried out by the defendant nos.1 to 3 in the suit as also claiming
easementary rights.
4. As far as the plea of the unauthorized construction is concerned,
the same stands finally adjudicated by an order dated 19.07.2011
passed by this Court in RSA No.184/2010, inter alia observing as
under:
"5. Accordingly, the impugned orders
cannot stand. They are accordingly set aside.
Rejection of the plaint under Order 7 Rule 11
CPC is set aside. The Trial Court will proceed
to hear and dispose of the suit in accordance
with law with respect to the cause of action of
easementary rights to light and air as stated in
the plaint and the reliefs claimed thereupon.
6. I may note that the learned counsel for
the appellants also sought to argue that the
suit must also continue with regard to the
unauthorized construction. I completely
disagree. The reason is the following
observations of the First Court in the order
dated 24.03.2004:-
Signature Not Verified
Signed By:SHALOO BATRA
Location:
Signing Date:26.03.2021
15:40 CM(M) No.265/2021 Page 2
"MCD also filed WS and raised
preliminary objection that the suit of the
plaintiff is barred under Section 347(E)
of the DMC Act and jurisdiction of this
Court is barred and this Court has no
jurisdiction to try the present suit. It
has been further stated that
unauthorized construction carried out in
the property No.E-20, Bhagwan Dass
Nagar, New Delhi was booked vide file
No.451/B/UC/WZ/98 dt. 8.9.98. It has
been further submitted that in view of
the resolution of Standing Committee,
MCD No.1648 dt. 24.5.79 the
owner/builder of the suit property was
processed fro regularization as per BBL
and policy and guidelines contained in
OO No.7/Building/HQ/86 dt.29.8.86 and
other circulars No.9/EE(B)/HQ/89 dt.
23.6.89 and 11/Bldg/HQ/86 dt.
27.10.86. It has been further stated that
after completing requisite formalities
and procedure as laid down in the
aforesaid circulars, the unauthorized
construction on GF and FF have been
regularized and building plan has been
sanctioned in respect of SF also as on
12.1.1999 as per details depicted in the
chart filed as annexure "A" with the WS
of MCD."
No doubt the issue could not have been
decided under Order 7 Rule 11 CPC, but, the
issue could well have been considered under
Order 12 Rule 6 CPC because MCD has given
detailed particulars of allowing of the sanction
and the completion of the requisite formalities
by the respondents no.1 to 3. Therefore, there
remains no illegal and unauthorized
construction for the suit to continue with
respect to that cause of action and relief
related thereto. I may however, note that the
appellants/plaintiffs are seeking that certain
documents be directed to be produced as
directed by the Trial Court vide its order dated
Signature Not Verified
Signed By:SHALOO BATRA
Location:
Signing Date:26.03.2021
15:40 CM(M) No.265/2021 Page 3
7.12.2002. Accordingly, MCD should for the
sake of completion of the record, comply with
the directions as contained in the Order dated
7.12.2002.
7. With the aforesaid observations, the
appeal is partly allowed to the extent that the
suit will continue with respect to the cause of
action and the reliefs claimed qua the
easementary rights. Appeal is disposed of
accordingly."
(Emphasis supplied)
5. As is evident, the only issue remaining before the learned Trial
Court was with respect to the claim of easementary rights made by the
petitioner. However, the petitioner is right in contending that the
direction passed to the MCD to produce documents as contained in the
order dated 07.12.2002 remained operative with the confirmation of
the order in that regard by this Court.
6. Thereafter issues were framed in the suit on 12.01.2015 and the
parties led their respective evidence. The petitioner closed his
evidence on 10.01.2019.
7. By an order dated 07.12.2017, the learned Trial Court directed
the MCD to file a Status Report regarding the extent of construction in
the property belonging to the petitioner as also defendant nos.1 to 3.
8. This order was challenged by the respondent nos.1 to 3 before
this Court in form of CM(M) No.813/2018. This Court by its order
dated 04.12.2019, was pleased to dispose of the said petition directing
as under:
Signature Not Verified
Signed By:SHALOO BATRA
Location:
Signing Date:26.03.2021
15:40 CM(M) No.265/2021 Page 4
"4. Insofar as the second petition, i.e.
CM(M) 813/2018 is concerned, the ld. Trial
Court has directed that notice be issued to the
Deputy Commissioner of the concerned zone to
examine any unauthorized construction and
file a detailed status report in respect of the
same. The impugned order was passed on 7th
December, 2017. If the status report has been
filed, the same shall be considered at the stage
of final hearing. No further orders are called
for in both these petitions. The submissions of
the Plaintiff shall be heard on 12th December,
2019. Within a period of four months, the final
judgment shall be passed. The costs of Rs.1
lakh are reduced to Rs.25,000/-. The same
shall be paid on or before the next date to the
Plaintiff."
(Emphasis supplied)
9. In the meantime, the first Impugned Order had been passed by
the learned Trial Court relying upon the interim stay granted during
the pendency of the above petition before the High Court.
10. Upon passing of the order of the High Court, the review petition
filed by the petitioner has also been dismissed by the order dated
07.03.2020.
11. The petitioner has thereafter filed an application praying for
permission to lead additional evidence. The said application has been
dismissed by the learned Trial Court vide its order dated 08.02.2021
relying upon the order dated 04.12.2019 of this Court. This order is
not in challenge in the present petition. This Court has therefore, not
expressed any opinion on the merit of the said order.
Signature Not Verified
Signed By:SHALOO BATRA
Location:
Signing Date:26.03.2021
15:40 CM(M) No.265/2021 Page 5
12. As far as the orders impugned in the present petition are
concerned, the fact remains that the petitioner took no steps for
ensuring compliance with the order dated 07.12.2002 after the passing
of the order in the second appeal by this court on 19.07.2011. As
noted hereinabove, thereafter issues were framed on 12.01.2015 and
the parties have led their evidence. The petitioner had not taken any
steps at that stage for having the documents produced before the
learned Trial Court.
13. As far as the order dated 07.12.2017 is concerned, this Court in
its order dated 04.12.2019 directed the learned Trial Court to expedite
the hearing of the suit without insisting on the status report to be filed
before the Trial Court. This order has also attained finality.
14. In view of the above, I find no infirmity in the orders impugned
in the present petition.
15. It is made clear that this Court has not expressed any opinion on
the relevance of documents which are sought to be produced by the
petitioner through MCD and the effect of non-production of the same
shall be considered by the learned Trial Court while considering the
suit on merit.
16. With the above observation, the present petition is disposed of.
Dasti.
NAVIN CHAWLA, J
MARCH 24, 2021
RN
Signature Not Verified
Signed By:SHALOO BATRA
Location:
Signing Date:26.03.2021
15:40 CM(M) No.265/2021 Page 6
