Delhi District Court
Ashok Kumar Jain vs Sh. Vivek Kumar Tripathi on 17 April, 2013
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
CS No. 249/11
Date of Institution of Suit : 07.07.2010
Date on which Reserved for Judgment : 14.03.2013
Date of Judgment/Order : 17.04.2013
Case I.D. Number : 02402C0182682010
IN THE MATTER OF:-
Ashok Kumar Jain
S/o Sh. Padam Sain Jain
R/o D-606 A, Gali no.4,
Ashok Nagar,
Delhi-110093.
.....Plaintiff.
Versus
1. Sh. Vivek Kumar Tripathi
presently posted as SDM Vasant Vihar
D.C. Office complex,
Old Terminal Tax Building
Kapashera, New Delhi-110037.
2. Sh. R.P. Dixit
R/o D-831 A, Gali no.4,
Ashok Nagar,
Delhi - 110093.
3. Smt. Sudesh Dixit
W/o Sh. R.P. Dixit
R/o D-831 A, Gali no.4,
Ashok Nagar,
Delhi - 110 093.
.......Defendants.
CS No.249/2011 1/13
J U D G M E N T
1. On 21.01.2012, following preliminary issue was framed in the matter : "Whether the suit of the plaintiff is barred under Section 133 (2) Criminal Procedure Code 1973? (OPD1 and 4)"
2. The counsel for the parties had stated that since the issue framed was purely legal, no evidence was required to be led on the same. During the course of arguments, the counsel for the defendant no.1 and defendant no.4 have submitted that in view of certain admissions made by the plaintiff in his letters written to the defendant no.1 and his successor, the suit itself was liable to be dismissed under the provisions of Order 12 Rule 6 CPC. Arguments were therefore addressed by the counsel for the parties on the preliminary issue referred above as well as on the question whether suit of the plaintiff is liable to be dismissed under Order 12 Rule 6 CPC in view of the admissions made by him in his letters.
3. The brief facts that are necessary for determination of the questions calling for consideration are that the plaintiff has filed this suit claiming that he was running a small business of manufacturing of sweet saunf. It is averred that the plaintiff was carrying out the said activity with three small machineparts for rotating saunf and sugar but the same did not involve use of heavy machinery. It is averred that the said activity could not lead to any nuisance. It is averred that the plaintiff has been carrying on the said business for the past 10 years and had been issued a licence by the Municipal Corporation of Delhi (herein after referred to as MCD) for this purpose.
4. It is averred that defendant no.2 and 3, who are husband and wife, reside in CS No.249/2011 2/13 the neighbourhood of the plaintiff. It is averred that defendant no.2 and 3 are persons of criminal bent of mind and are involved in blackmailing. In the year 2009 they approached the plaintiff and demanded illegal gratification failing which they had threatened to have his business closed. It is further averred that at that time defendant No. 1 was posted as Sub Divisional Magistrate, Shahdara, Delhi, who was in connivance with defendant no.2 and 3, tried to extort money from the plaintiff. It is averred that defendant no.1 managed to get a complaint before him from defendant no.2 through his wife defendant no.3 to the effect that the business being carried on by the plaintiff was illegal. It is averred that the defendant No.3 made complaints dated 12.02.2009 and 17.02.09 to the defendant no.1 who called upon the plaintiff to appear before him 02.04.09.
5. It is averred that defendant no.1 passed an order for closing down the manufacturing activity of the plaintiff under the provisions of Section 133 of Criminal Procedure Code, 1973. It is averred that the said order was passed in a malafide exercise of power without any basis and was in contravention of the procedure laid down under Section 133 of Criminal Procedure Code. It is averred that the defendant no.1 has passed the said order at the behest of defendant no.2 and 3 and has acted dishonestly.
6. It is averred that although there was an order of closure dated 06.06.2009 the said order was not issued on that date. It is averred that defendant no.1 gave a copy of the order dated 06.06.2009 to the defendant no.2 and 3 who approached the plaintiff demanding an amount of Rs.1,00,000/ (One lac) as illegal gratification CS No.249/2011 3/13 and represented that if the said amount is paid the order dated 06.06.2009 would not be signed by defendant no.1. It is averred that the said amount was to be shared amongst the defendant no.1, 2 & 3. The plaintiff refused to make payment of the said amount.
7. It is averred that the defendant no.2 & 3 made another complaint dated 08.06.2009 to the defendant no.1 containing false allegation and it was only thereafter that the defendant no.1 signed the order dated 06.06.2009 on 19.06.2009. It is averred that the said order was served on the plaintiff on 07.07.2009 granting him 15 days time to close down his business. It is averred that the plaintiff had to therefore close down his business w.e.f. 21.10.09 and his business remained closed upto 20.11.2009. The plaintiff could resume his business only after obtaining licence from Municipal Corporation of Delhi on 21.02.2011. The plaintiff therefore had to keep his business closed down for four months.
8. It is averred that due to the closure of the business, the plaintiff has suffered financial loss and loss of reputation and goodwill. The plaintiff was therefore claiming an amount of Rs.1,00,000/ as damages towards his loss of earning between the period of 21.07.2009 to 20.11.2009; Rs.50,000/ for expenses incurred on account of approaching officials in various offices; Rs. 2,00,000/ for having suffered mental torture and agony; and Rs.1,00,000/ towards loss of reputation and goodwill. In these circumstances, plaintiff has filed the present suit praying for a decree for damages for the amount of Rs.4,50,000/.
CS No.249/2011 4/13
9. Upon the summons being issued the defendant no.1 filed his written statement (which was also adopted by the defendant no.4) raising preliminary objections to the effect that the suit was liable to be rejected under Order VII Rule 11 CPC as the order dated 06.06.2009 was passed under the provisions of Section 133 of Criminal Procedure Code and a person aggrieved was entitled to prefer a criminal revision petition before the concerned Sessions Court against the same. It is also averred that the plaintiff himself has written letters dated 17.07.2009, 24.07.2009 and 02.01.2010 to the defendant no.1 in which he has never raised these contentions but on the other hand has sought time to comply with the order dated 06.06.2009; has intimated that he has complied with the order of closure and also intimated that he has restarted his business after obtaining licence from the Municipal Corporation of Delhi. It is averred that in view of these letters, it is evident that plaintiff never had any grouse against the defendant no.1 and the suit which has been filed by him is motivated and an afterthought.
10. Defendant no.1 has further averred that a complaint dated 02.02.2005 was received in the office of defendant no.1 from the defendant no.3 and other persons of the locality to the effect that the plaintiff was running an illegal factory from his residence. An inspection of the premises of the plaintiff was carried out on 09.03.09 in which it was found that the plaintiff was manufacturing sweet saunf with the use of generator, LPG cylinder and other machines. Notices dated 13.03.2009 were issued by the defendant no.1 to the plaintiff and the complainant to appear before him in person. Letter dated 20.05.2009 was received in the office of defendant no.1 from MCD intimating that the factory of the plaintiff was CS No.249/2011 5/13 unauthorized. Letter dated 25.05.2009 was received from the office of the DPCC on a complaint against the plaintiff. Complaint dated 05.06.2009 was received from 14 other persons regarding the factory of the plaintiff. Reference was also received from the office of Chief Minister of Delhi regarding the same to take appropriate action.
11. It is averred that after following due process, order dated 06.06.2009 was passed by the defendant no.1. The said order was dispatched to the plaintiff and a copy of the same was sent to the defendant no.3 on request on 19.06.2009. On 07.07.09 the plaintiff represented that he had not received a copy of the said order which was provided to him on 07.07.2009 itself. The defendant no.1 has denied the allegations of malafide made by the plaintiff and has averred that the order dated 06.06.2009 was passed in accordance with law. It is averred that the plaintiff has raised these allegations for the first time in a legal notice dated 31.03.2010, although by his letters dated 17.07.2009, 24.07.2009 and 02.01.2010 he had written to the defendant no.1 seeking time for compliance.
12. It is averred that even after the order dated 06.06.2009 was passed, another complaint dated 28.10.2009 was received in the office of defendant no.1 which was then occupied by Sh. Navin Kumar Saxena, SDM, Shahdara, Delhi. On the said complaint, an order dated 22.12.2009 was passed under Section 133 Criminal Procedure Code against the plaintiff who filed a criminal revision petition in the court of the Additional Sessions Judge, North East, Karkardooma Court which was allowed vide order dated 19.03.2010. It is averred that instead of filing a criminal revision petition against the order dated 06.06.2009, the plaintiff has filed the CS No.249/2011 6/13 present suit on malafide grounds.
13. The defendants no.2 and 3 have filed a joint written statement in which they have raised preliminary objections that the suit is not maintainable and is liable to be dismissed under Order VII Rule 11 CPC. It is averred that the present suit is a counterblast to the proceedings initiated by the defendant no.3 leading to the order being passed by the defendant no.1 as well as the suit of the defendant no.3 against the plaintiff. On merits defendant no.2 and 3 have denied that the averments of the plaintiff.
14. I have heard the counsel for the parties and have perused the record. By order dated 21.01.2012 an issue was framed regarding whether the suit of the plaintiff would be barred under the provisions of Section 133 (2) of the Code of Criminal Procedure. The basis of the present suit is a claim for damages on account of an order dated 06.06.2009 having been passed by the defendant no.1 in exercise of power under Section 133 of the Code of Criminal Procedure. The order dated dated 06.06.2009 is on record. The same reads as under:
"A complaint dated 02.02.2009 was received from Smt. Sudesh Dixit R/o D831A, Gali no.4, Ashok Nagar, Delhi110032 in respect of Sh. Ashok Jain, R/o D606A, Gali no.4, Ashok Nagar, Delhi110093 regarding running a commercial business/manufacturing unit of mouth freshner by using machines and generator in the residential area.
Notices U/s.133 Cr.P.C. were issued to both the parties from time to time and the plaintiff as well as respondents attended the given dates.
On the basis of the statements given, it is established CS No.249/2011 7/13 that Sh. Ashok Jain running a commercial business/manufacturing unit of mouth freshner from a residential premises without, any licence of doing so from any authority.
Running of this unit in this area is not in conformity with the orders on Hon'ble Supreme Court dated 07.05.2004 w.e.f. running the factory in the residential area of Delhi. I also feel that running of this unit is adversely affecting the physical comfort of the community. Hence of the basis of above mentioned facts and circumstances Sh. Ashok Jain, R/o D606A, Gali no.4, Ashok Nagar, Delhi110093 is hereby directed to stop the present activity of production of mouth freshner (Meethi saunf) within a period of 15 days from the date of receipt of this order."
15. Perusal of the said order reveals that the same has been passed by SDM Shahadara, in exercise of his powers under Section 133 of the Code of Criminal Procedure. Section 133 (2) of the Code of Criminal Procedure provides as under:
"(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court."
16. Section 133 (2) clearly provides that no order duly made by a Magistrate passed under Section 133 shall be called in to question in any Civil Court. The basis of the suit for damages of the plaintiff is that the defendant no.1 has passed the said order in a malafide manner in collusion with the defendant no.2 and 3 to extract illegal gratification. The plaintiff has also claimed that the said order is not in conformity with the procedure laid down under Section 133 of the Code of Criminal Procedure. In order for this court to adjudicate upon the claim of the plaintiff, this court will necessarily have to consider the merits of the order of the Magistrate passed under Section 133. Section 133(2) clearly ousts the jurisdiction of the civil CS No.249/2011 8/13 court from calling into question any order passed by the Magistrate under Section 133 of the Code of Criminal Procedure. Thus, the suit of the plaintiff is barred before the Civil Court and is liable to be rejected under the provisions of Order VII Rule 11 (d) CPC.
17. It is also to be noticed that against an order passed by the SDM under the provisions of Section 133, a person aggrieved by such order can file a revision petition before the Court of Sessions. In fact, the plaintiff has done so against a subsequent order of the SDM with success. Thus, the jurisdiction to consider the validity or otherwise of the order passed by the SDM under Section 133 of the Code of Criminal Procedure vests exclusively with the court of Sessions. Unless and until such an order is set aside by the Court of Sessions, the same will remain in operation and will have to be considered to be a valid order. No suit for damages would be maintainable against an order passed under Section 133 Cr.PC which remains in existence.
18. Now comes the question of the suit of the plaintiff being liable to be dismissed on account of admissions made by him. As recorded the defendant no.1 and 4 along with their written statement have placed on record certain letters written by the plaintiff to the office of defendant no.1 after the order dated 06.06.2009 was passed. The same were brought to the notice of the plaintiff who was directed by this court by order dated 25.09.2012 to file replication to the written statement of defendant No. 1. After grant of opportunities, the plaintiff filed replication in which he admitted writing the letters dated 17.07.2009, 29.07.2009 and 02.01.2010 to the CS No.249/2011 9/13 defendant no.1. I shall refer to the contents of these letters as under:
(i) In the letter dated 17.07.2009 written by the plaintiff to the defendant no.1, he has stated that after receiving the closure order, the plaintiff was looking for alternative premises to shift his manufacturing activity. The plaintiff has stated that he was 60 years old and had applied for a licence for his factory which was under consideration. He has prayed for one year time to close down his business and to look for alternate premises;
(ii) In the letter dated 24.07.2009, the plaintiff has written to the defendant no.1 that he has closed down his manufacturing activity and was intimating the compliance of the closure order;
(iii) In the letter dated 02.01.2010 written to the successor of the defendant no.1 the plaintiff has stated that in compliance of order of closure the plaintiff had closed down his business and had also intimated the same earlier. He has stated that after obtaining the factory licence, the plaintiff has restarted his activity. He has assured that his manufacturing activities are not leading to any form of air and water pollution.
19. In none of the above three letters has the plaintiff raised any allegation regarding the order dated 06.06.2009 having been passed by the defendant no.1 in a malafide manner in collusion with the defendant no.2 and 3. The plaintiff has not even contended that the orders for closure of his business was not in accordance of the provisions of Section 133 of Code of Criminal Procedure or were illegal in any manner whatsoever. On the other hand, the plaintiff has initially sought one year time to comply with the order of closure of his business. Thereafter he intimated compliance of order of closure of business and that he had applied for a factory licence. Lastly, by his letter dated 02.01.2010 the plaintiff has intimated that after being issued a factory licence, he restarted his business. The plaintiff has clearly assured the defendant no.1 that his manufacturing activities were not causing any pollution.
CS No.249/2011 10/13
20. In his replication to the written statement of defendant No.1, the plaintiff has admitted having written these letters to the defendant no.1. After the arguments in this matter were concluded, the counsel for the plaintiff has filed written submissions. In his written submissions, the counsel for the plaintiff has submitted that the said three letters could not be relied upon by the defendants to defend the suit and could not form the basis on which the suit could be rejected under Order VII Rule 11 CPC or under Order XII Rule 6 CPC. It is contended that letter dated 17.07.2009 states that coercive action to close down to manufacturing activity of the plaintiff be not taken as the plaintiff was looking for an alternative arrangement. It is stated that letter dated 24.07.2009 written by the plaintiff reflects that the defendant no.1 did not consider his request for alternative arrangement. It is stated that letter dated 02.01.2010 was written to the successor SDM and not to defendant no.1.
21. I am afraid that contents of these three letters are not as not being made out by the counsel for the plaintiff. The plaintiff has firstly clearly sought time of one year to make alternative arrangement; thereafter he reported compliance and that he had applied for MCD license; lastly he stated that he had restarted his business after obtaining factory licence. The question which arises is whether these letters can form the basis of an admission for the purpose of Order XII Rule 6 CPC. In the case of DTTDC VS. LEHAN International (p) ltd reported in 86 (2000) DLT 53, the Hon'ble High Court of Delhi has been pleased to hold that admissions need not be restricted only to the pleadings of the parties but can also be traced from admitted documents. Further, in the case of Babita Vs. Ravinder Verma, (RFA 86/2012), the CS No.249/2011 11/13 Hon'ble High Court of Delhi was pleased to hold that Order 12 Rule 6 CPC could not only be invoked to grant a decree against the defendant on the basis of an admission made by him but the same could also be ground for dismissal of his suit on the basis of admissions made by the plaintiff in his plaint or his documents.
22. As recorded, the suit of the plaintiff is for damages on account of closure of the manufacturing activity by the plaintiff due to an order passed by the defendant no.1 under Section 133 Code of Criminal Procedure on a complainant of the defendant no.3. The basis of the suit was allegation of malafide on the part of defendant no.1 in collusion with the defendant no.2 and 3 to obtain illegal gratification. Admittedly the plaintiff has written three letters dated 17.07.2009, 24.07.09 and 02.01.2010 to the defendant no.1 after the order dated 06.06.2009 was passed. None of these letters contain any allegations of any nature made in the plaint. On the other hand, the plaintiff has reported compliance, sought time for alternative arrangement and restarted his business after obtaining licence. The contents of these admitted letters amount to an admission on the part of the plaintiff that he did not have any grouse against the defendant no.1,2 & 3 in respect of the closure order dated 06.06.2009. The present suit is only an afterthought and has been filed for the reasons best known to the plaintiff. The suit of the plaintiff is therefore liable to be dismissed under the provisions of Order XII Rule 6 CPC in view of the contents of the said letters.
23. Thus for the reasons recorded above, the suit of the plaintiff is rejected being barred under Section 133 (2) Cr.PC and dismissed under Order XII Rule 6 CS No.249/2011 12/13 CPC in view of the contents of his letters written to the defendant No.1. Announced and dictated to the steno in Open Court today i.e. 18.04.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi CS No.249/2011 13/13