Delhi High Court
Lalit Yadav & Ors vs Delhi Development Authority & Ors on 17 November, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th November, 2017.
+ CM(M) 1281/2017
LALIT YADAV & ORS ..... Petitioners
Through: Mr. Pankaj Gupta and Ms. Rimpy
Gupta, Advs.
Versus
DELHI DEVELOPMENT AUTHORITY
& ORS ..... Respondents.
Through: Ms. Shobhana Takiar, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.40976/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM(M) 1281/2017 & CM No.40974/2017 (for stay)
3. This petition under Article 227 of the Constitution of India impugns
the judgment (dated 10th July, 2017 in Civil Suit No.8/17/16 (New
No.613640/16) of the Court of Additional District Judge (ADJ)-02, West,
Delhi) deciding the preliminary issue framed in the suit against the
petitioners/plaintiffs and resultantly dismissing the suit as not maintainable
and directing the decree sheet to be prepared.
4. I have at the outset enquired from the counsel for the
petitioners/plaintiffs as to how this petition under Article 227 of the
Constitution of India is maintainable and whether not the efficacious
CM(M) 1281/2017 Page 1 of 11
remedy of appeal under Section 96 of the Code of Civil Procedure, 1908
(CPC) is available to the petitioners/plaintiffs.
5. Neither the counsel for the petitioners/plaintiffs nor the counsel for
the respondents/defendants Delhi Development Authority (DDA)
appearing on advance notice were prepared to answer the said question
and sought time to hand over copies of judgments, if any to be relied upon
by them in the course of the day. Resultantly, the file was sent to the
Chamber for passing orders. The matter thereafter went on the back
burner and this judgment has been released on the date mentioned below.
6. The petitioners/plaintiffs have not placed before this Court the
copies of the pleadings in the suit from which this petition arises.
However, from a perusal of the impugned judgment, it is found that the
petitioners/plaintiffs instituted this suit for the reliefs of (A) recovery of
Rs.72 lakhs jointly and severally from the respondent/defendant No.1
DDA and the respondents/defendants No.2 to 4 being the offices of the
Commissioner Land Management, Director Land Management-I and
Deputy Director Land Management (West), of the respondent/defendant
No.1 DDA; (B) for permanent injunction restraining the
respondents/defendants from laying any right, title or interest in the piece
of land ad-measuring 1500 sq. yds. situated in Khasra No.1300 in Village
Abadi of Madipur, Delhi presently known as WZ-274-A, Madipur Village,
New Delhi; (C) for mandatory injunction directing the
respondents/defendants DDA to remove all its articles/goods lying in any
part of the said property, pleading (i) that the petitioners/plaintiffs were in
physical possession of the said land and have been dispossessed by the
CM(M) 1281/2017 Page 2 of 11
respondents/defendants DDA therefrom forcibly and without due process
of law; (ii) that the respondents/defendants DDA have also, without notice,
demolished the structure on the said land; (iii) that the petitioners/plaintiffs
had succeeded to the said land by inheritance; (iv) however in the revenue
records, the land was erroneously shown as Gaon Sabha land; (v) that the
said land was acquired pursuant to Notifications under Section 4 of the
Land Acquisition Act, 1894 of the year 1959 and under Section 6 of 2 nd
January, 1969; (vi) that vide Notification of the year 1963 under Section
507 of the Delhi Municipal Corporation Act, 1957, Village Madipur was
declared as urbanized land; (vii) that in 1960, Gaon Sabha of Madipur
initiated eviction proceedings for part of the land against the predecessor
of the petitioners/plaintiffs and eviction order was passed but which was
set aside in appeal and the case remanded back; (viii) that vide
Notification of 20th August, 1974, the land was transferred by Central
Government to respondents/defendants DDA; (ix) that a civil suit was
filed by the predecessor of the petitioners/plaintiff against the
respondent/defendant DDA for declaration of title and for injunction with
respect to the said land; however the said litigation did not fructify in view
of jurisdiction deciding the title of the land having been vested with the
Revenue Authority; (x) that on 17th May, 2014, the respondents/defendants
DDA demolished part of the structure on the said land, without notice or
warning and threatened to take forcible possession thereof; (xi) that the
petitioners/plaintiffs filed W.P.(C) No.319/2014 in this Court but the
respondents/defendant DDA despite status-quo orders in the said writ
petition dispossessed the petitioners/plaintiffs; (xii) that the
petitioners/plaintiffs have suffered loss and damage in the sum of Rs.60
CM(M) 1281/2017 Page 3 of 11
lakhs by such action of the respondents/defendants DDA; (xiii) that the
petitioners/plaintiffs filed W.P.(C) No.6528/2014 claiming relief of re-
possession and compensation but the said writ petition, on 24 th September,
2014 was withdrawn with liberty to take appropriate action; and, (xiv)
thereafter, the suit was being filed.
7. The impugned judgment also records that the
respondents/defendants DDA in its written statement inter alia pleaded (a)
that the grandfather of the petitioners/plaintiffs had in or about the year
1980 instituted a suit for declaration and permanent injunction with respect
to the said land and which suit was dismissed vide judgment dated 4 th
March, 2003 and the first appeal against the said judgment was dismissed
on 29th July, 2008 and the second appeal against the said judgment was
dismissed on 23rd May, 2011 and the SLP preferred thereagainst dismissed
on 20th March, 2013; (b) that in the judgment dated 23rd May, 2011, it was
recorded that the petitioners/plaintiffs/their predecessor had been
dispossessed from the said property during the Emergency period and on
12th November, 1980 had been given alternate plot; (c) that the land
belonged to the respondent/defendant No.1 DDA; (d) that the suit was in
abuse of the process of the Court.
8. The following preliminary issue was framed in the suit on 17 th
February, 2017:
"Whether plaintiff's suit is maintainable in the present form
and barred by res judicata? OPP"
9. The learned ADJ, after hearing the counsels on the preliminary
issue, held that though the principle of res judicata was not applicable but
CM(M) 1281/2017 Page 4 of 11
the petitioners/plaintiffs had no legal right to the property and it is the
respondent/defendant No.1 DDA who is owner thereof and in whom the
said property vested and the petitioners/plaintiffs had been repeatedly
encroaching the land and the respondent/defendant No.1 DDA had acted in
accordance with law and the petitioners/plaintiffs can have no claim for
compensation with respect to the said act of respondent/defendant No.1
DDA. The suit was held to be not maintainable and was thus dismissed.
10. Considering the scope of the present judgment i.e. the
maintainability of this petition under Article 227 of the Constitution of
India, it is not necessary to detail the reasoning given by the learned ADJ
to hold as aforesaid.
11. The challenge by the petitioners/plaintiffs to the impugned
judgment, besides on merits, is also on the ground of the decision rendered
by the learned ADJ being on questions of fact and not merely on the
question of law and hence could not have been rendered on a preliminary
issue. The petitioners/plaintiffs have also pleaded that though the
impugned judgment directs preparation of the decree sheet but the learned
ADJ had committed grave procedural and material irregularity and
illegality in conducting the proceedings in the suit and the judgment is thus
revisable by this Court in exercise of powers under Article 227 of the
Constitution of India.
12. The counsel for the petitioners/plaintiffs relies on:
(I) Bhupinder Kamal Vs. New Delhi Municipal Committee AIR
1980 Del 121, negating the preliminary objection to the
maintainability of the Revision Petition on the ground of the
CM(M) 1281/2017 Page 5 of 11
challenge therein being to the judgment holding the suit to be not
maintainable, and holding the Revision Petition to be maintainable.
(II) Kondapally Vasudev Reddy Vs. Baireddy Venkata Reddy
AIR 1963 AP 232, also negating the challenge to the maintainability
of the Revision Petition on the ground of the challenge therein being
to an order on a preliminary issue and the remedy of appeal being
available; it was reasoned that since the Court below had followed a
procedure contrary to law, a Revision Petition would lie.
(III) Surya Dev Rai Vs. Ram Chander Rai (2003) 6 SCC 675
laying down that amendment with effect from 1 st July, 2002 in
Section 115 of the CPC cannot and does not affect in any manner
the jurisdiction of the High Court under Articles 226 and 227 of the
Constitution of India and interlocutory orders against which remedy
of revision is excluded thereby, are nevertheless open to challenge
under Article 227 of the Constitution of India and further laying
down the category of orders against which Article 227 of the
Constitution of India can be invoked.
(IV) Major S.S. Khanna Vs. Brig. F.J. Dillon AIR 1964 SC 497
laying down that the jurisdiction to try issues of law apart from the
issues of fact may be exercised only where in the opinion of the
Court the whole suit may be disposed of on the issues of law alone;
else, all the issues should be tried together by the Court; it was
further held that since the Subordinate Court exercised its
jurisdiction with material irregularity in passing the order under
challenge therein and the said order being non-appealable, the same
CM(M) 1281/2017 Page 6 of 11
was amenable to the revisional jurisdiction of the High Court under
Section 115 CPC.
(V) S. Satnam Singh Vs. Surender Kaur (2009) 2 SCC 562
laying down that the Court, with a view to determine whether an
order passed by it is a decree or not, must take into consideration the
pleadings of the parties and the proceedings leading up to the
passing of the order and the circumstances under which an order
made would be relevant.
(VI) Mangluram Dewangan Vs. Surendra Singh (2011) 12 SCC
773 holding that where an order is neither a decree appealable under
Section 96 of CPC nor an order appealable under Section 104 and
Order XLIII Rule 1 of the CPC, the remedy is to file a revision
petition.
13. Per contra, the counsel for the respondents/defendants DDA has
referred to Satbir Singh Vs. Mehtab Singh 2017 SCC OnLine Del 9923
and Pushpa Rathi Vs. Jugnu Bansal 2017 SCC OnLine Del 10881
holding that where the remedy under Section 96 of the CPC or other
statutory provision is available, the remedy of a petition under Article 227
of the Constitution of India would not be available.
14. It is not in dispute that a decision on a preliminary issue as to the
maintainability of the suit, holding the suit to be not maintainable and
dismissing the suit, would be a decree and appealable under Section 96 of
the CPC. The question which arises is, when a Court reaches such
conclusion either by committing gross irregularity of procedure or which
could not have been reached on the material on record, whether it is open
CM(M) 1281/2017 Page 7 of 11
to a person aggrieved to contend that the decision, though if correctly
made would have been a decree but because has not been so made, is not a
decree and the statutory remedy as available in law thereagainst, need not
necessarily be availed of and a challenge thereto can be made under the
supervisory jurisdiction.
15. I am of the view that if it were to be held that the remedy of Article
227 of the Constitution of India in alternative to the remedy of appeal
under Section 96 of CPC, is available by contending gross irregularity of
procedure or on merits of the order, it would open the floodgates for
challenges being made before this Court also to decrees passed by the
Court of Civil Judge against which otherwise appeal to the District Judge
or the Senior Civil Judge is maintainable. Further, the Court would then in
such cases be first required to conduct an enquiry, whether there is any
gross mistake or illegality of procedure in arriving at the conclusion,
thereby keeping the petitions pending in this Court for long and axiomatic
delays in disposal of the lis.
16. I may at the outset only cite Rishabh Chand Jain Vs. Ginesh
Chandra Jain (2016) 6 SCC 675 holding that the order, conclusively
determining the rights of parties with regard to one of the issues is a decree
and where order passed is a decree under law, no revision lies under
Section 115 of the CPC and it is only appealable under Section 96 of the
CPC. It was further held that the order impugned therein dismissing the
suit on the ground of res judicata did not cease to be a decree on account
of a procedural irregularity of non-framing an issue and ought to be treated
as a decree as if passed, after framing the issue and on adjudication
CM(M) 1281/2017 Page 8 of 11
thereof. It was further held that what is to be seen is the effect and not the
process and even if there is a procedural irregularity in the process of
passing such order, if the order passed is a decree under law, no revision
lies under Section 115 of the CPC in view of the specific bar in Section
115 of the CPC.
17. In my view, the judgment aforesaid is a complete answer to the
question aforesaid which arises for decision and in view thereof, this
petition has to be dismissed as not maintainable. I may mention that the
Full Bench of Madras High Court as far back as in P.M.A.R.M. Muthiah
Chettiar Vs. Lodd Govinddoss Krishnadoss Varu (1921) ILR 44 Mad.
919, dealing with a contention that the appeal against the order purportedly
under Order XXII Rule 10 of the CPC was not maintainable since Rule 10
of Order XXII of CPC did not apply to the situation, held that since the
District Judge purported to act under Order XXII Rule 10 of CPC and
rejected the application, an appeal will lie, even if the Court thinks the
Rule to be inapplicable. It was further held that the fact that the District
Judge had no power to pass an order under a particular section did not bar
the High Court from treating his order as having been passed thereunder
for the purposes of entertaining an appeal against the order. Reliance was
placed on Hurrish Chunder Chowdhry Vs. Kalisunderi Debi (1883) ILR
9 Cal. 482 (Privy Council) and on Latchmanan Chetty Vs. Ramanathan
Chetty 1905 ILR 28 Mad 127.
18. It follows, that even if the learned ADJ in the present case wrongly
framed the preliminary issue or under the preliminary issue decided
matters which could not have been decided without trial, the same would
CM(M) 1281/2017 Page 9 of 11
not make available against the order a remedy which is otherwise not
available against a decision on a preliminary issue dismissing the suit.
19. As far as the judgments cited by the counsel for the
petitioners/plaintiffs are concerned, though in the light of the recent dicta
aforesaid of the Supreme Court, there is no need to deal therewith but I
may mention that the judgment of this Court in Bhupinder Kamal supra is
based solely on the earlier dicta of the Division Bench of this Court in Siri
Krishan Bhardwaj Vs. Manohar Lal Gupta AIR 1977 Delhi 226 holding
a Revision Petition under Section 115 of the CPC to be available against
an order of dismissal of an application for leave to defend a suit under
Order XXXVII of the CPC, notwithstanding a consequential decree having
been passed. The learned Single Judge in Bhupinder Kamal supra applied
the said principle to hold that a Revision Petition against a judgment to be
maintainable, as the decree following the said judgment is consequential. I
respectfully disagree. An order of dismissal of an application for leave to
defend a suit under Order XXXVII of the CPC and a decree as a
consequence thereof, cannot, in my view, be equated with a decree which
under Section 33 of the CPC follows a judgment. While a 'judgment', in
Section 2(9) of the CPC is defined as a statement given by the Judge of the
grounds of a decree or order, Section 2(2) of the CPC defines 'decree' as a
formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard
to all or any of the matters in controversy in the suit and may be either
preliminary or final. The two in my view are inseparable. I may also
notice that this Court in V.S. Saini Vs. D.C.M. Ltd. AIR 2004 Del 219 has
held Siri Krishan Bhardwaj supra to be no longer good law owing to the
CM(M) 1281/2017 Page 10 of 11
subsequent judgment of the Supreme Court in Shah Babulal Khimji Vs.
Jayaben D. Kania AIR 1981 SC 1786 and owing to the amendment of the
CPC of the year 2002.
20. As far as other judgments are concerned, save for Kondapally
Vasudev Reddy, which also is of the time prior to amendment of the year
2002 of CPC, the others do not directly deal with the issue in hand.
21. The petition is accordingly dismissed as not maintainable.
No costs.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 17, 2017 'bs' (corrected & released on 19th March, 2018) CM(M) 1281/2017 Page 11 of 11