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[Cites 2, Cited by 0]

Delhi District Court

Dh/ vs . on 19 January, 2016

                                                  ::- 1 -::

 IN THE COURT OF Ms. AANCHAL, CIVIL JUDGE­07, CENTRAL DISTT.,
                 TIS HAZARI COURTS, DELHI.


Ex. No. 115/14


Sh. Karta Ram                                                                      ......... DH
                                                    Vs.
Sh. Nawab @ Nawabuddin                                                             ......... JD


                                                                         Date of order : 19.01.2016

                                                  ORDER

Vide this order, this Court shall decide the application under Section 9 r/w Sec. 151 CPC filed by JD thereby praying that the order/ decree dated 16.03.2011 in Suit No.24/2008 passed by the Court of Sh. Abhilash Malhotra, Ld. predecessor court of this Court, may be declared as null and void and similarly the present execution petition be stayed till the disposal of this application.

Arguments have been heard. Record is perused carefully. There are following contentions made in the present application by JD :­

1. DH/plaintiff had deposed in the main suit pending before the court of Sh. Pranjal Aneja, Ld. Civil Judge, Delhi that father of JD Sh. Bahabuddin was the tenant in respect of the property the possession of which is sought under execution and he has already been died. But his father is still alive, in which circumstance the plaint is liable to be rejected.

2. One of the tenant of DH, Sh. Onkar against whom ejectment order was passed, challenged the order being without jurisdiction and vide its order dt. 24.05.2013, Hon'ble High court of Delhi has held that the provisions of Delhi Rent control Act are applicable and hence the forum of civil court is barred and further held that there is an error committed by the trial court as said notification dt. 14.04.1997 and others will have to be proved and examined before a finding can be arrived at and please to ::- 2 -::

modify the impugned order of ejectment to this extent. Therefore, the judgment and decree under execution is nullity being passed by the court with no jurisdiction.
So far as the first contention is concerned, it is substantially nothing but re­wrapping of the contentions that have been put forth by JD vide his application u/s 151 CPC which was disposed off and decided against the JD vide order dt. 21.08.15 passed by this Court. It is the settled proposition of law that contentions heard and decided on merits at one stage of the judicial proceedings, cannot be re­agitated at subsequent stage of the same proceedings. This principle has been iterated and explained by Hon'ble Supreme Court in Arjun Singh Vs. Mohindra Kumar and Ors.

reported as 1964 AIR 993 by observing that "the scope of principle of resjudicata is not confined to what is contained in Section­11 but is of more general application is also not in dispute. Again, resjudicata could be as much applicable to different stages of the same suit as to the findings on issues in different suits". Therefore, this Court is of the opinion that this contention needs not to be dealt with again and the judgment & decree under execution cannot be assailed on this count.

It has been admitted on behalf of DH that Hon'ble High Court of Delhi had pleased to pass the order, as referred by JD in case Karta Ram Vs. Onkar, which is also pending for execution before this Court only. But during the course of arguments, Ld. Counsel for DH has contended strongly that the order dated 24.05.2013 passed by Hon'ble High Court of Delhi, as referred by JD, has been reviewed by Hon'ble High Court of Delhi vide its subsequent order. This Court had examined the record of execution case file no. 116/2014 titled as Karta Ram Vs. Onkar thoroughly and it is revealed that submissions of Ld. Counsel for DH are correct and vide its order dated 24.01.2014, Hon'ble High Court of Delhi has pleased to modify and review the order dated 24.05.2013 and held that there is no question of leading any evidence in order to prove the notifications. Thus, it is inferred that the order dated 24.05.2013 is of no assistance to the JD and second contention of JD is nothing but an attempt to misguide the Court also to delay the proceedings for which he should be burdened with exemplary costs as it can be safely assumed that JD had knowledge of modification of ::- 3 -::

order dated 24.05.2013 passed by Hon'ble High Court of Delhi as the execution bearing no. 116/14 was listed on the same date when the present execution petition was listed on 21.08.2015 when the order was passed in execution no. 116/14 making reference of modification of order dated 24.05.2013, passed by Hon'ble High Court of Delhi.
Thus, in view of the above discussion, the present application filed by JD is dismissed with the cost of Rs.20,000/­, 50% of which is directed to be deposited into DLSA and balance is directed to be paid to the DH.
( AANCHAL ) Civil Judge : Delhi.
19.01.2016.

RB ::- 4 -::

Ex. No. 115/14
19.01.2016 Present: None for the parties.

Vide separate order of even date, the application under Section 9 r/w Sec. 151 CPC filed by the JD is dismissed with the cost of Rs.20,000/­, 50% of which is directed to be deposited into DLSA and balance is directed to be paid to the DH.

Now, put up for further proceedings on 29.01.2016.

( AANCHAL ) Civil Judge : Delhi.

19.01.2016.

RB