Delhi High Court - Orders
Ajay Kumar Saxena & Anr vs Mahesh Dutt Joshi & Anr on 13 October, 2023
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 579/2018 and C.M. No.54857/2018
AJAY KUMAR SAXENA & ANR ..... Appellants
Through: Mr. Vidit Gupta with Mr. Chetan
Singh, Advocates.
versus
MAHESH DUTT JOSHI & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 13.10.2023 No one is present on behalf of the respondents when the matter is called-out.
2. It is noticed that no one has appeared for the respondents for the last 04 dates i.e. 30.03.2022, 25.11.2022, 06.04.2023 and 13.04.2023, as also today.
3. In view of the above, it appears that the respondents are not interested in being represented in the matter.
4. The respondents are accordingly set ex-parte.
C.M. APPL.16300/20235. By way of the present application filed under Order XXII Rule 4 read with section 151 of the Code of Civil Procedure 1908, the appellants seek to bring on record the Legal Representatives ('LRs') of deceased respondent No.1, who is stated to have passed-away on 02.12.2022.
6. Mr. Vidit Gupta, learned counsel appearing for the appellants submits that respondent No.2 is the only surviving LR of respondent No.1
7. In order to substantiate this point Mr. Gupta draws attention to judgment dated 29.03.2023 passed by a Co-ordinate Bench of this court This is a digitally signed order. FAO 579/2018 Page 1 of 4 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:50:03 in CM(M) No. 532/2023 titled Sh. Mahesh Dutt Joshi vs. Mr. Ajay Kumar Saxena on an application bearing CM APPL. No. 15784/2023, in which proceedings the respondents were petitioners. It is pointed-out that in the said proceedings it was represented on behalf of Mr. Mahesh Dutt Joshi, who is (was) respondent No.1 in the present proceedings, that respondent No. 2/Ajay Joshi was his only LR.
8. Mr. Gupta has further shown to the court the memorandum of parties in CM (M) No. 532/2023, to supplement his submission.
9. Considering that the respondents in the present case have been set ex-
parte, the court is persuaded to accept the submission made on behalf of the appellants.
10. Accordingly, the present application is allowed; thereby recording that upon the demise of respondent No.1/Mahesh Dutt Joshi, respondent No.2/Ajay Joshi is the only surviving LR of respondent No.1; and substituting the said person in place of respondent No. 1.
11. Amended memo of parties filed alongwith the application is taken on record.
12. Application stands disposed-of.
FAO 579/201813. Mr. Gupta submits that in view of the conduct of the respondents, namely that they have chosen not to be represented in the present proceedings, the present appeal impugning order dated 20.12.2018 by the learned District & Sessions Judge, Shahdara, Delhi may be disposed-of in terms of report dated 23.10.2019 rendered by the local commissioner in the present proceedings.
This is a digitally signed order. FAO 579/2018 Page 2 of 4The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:50:03
14. Mr. Gupta submits that the appellants are aggrieved only by what has come to be recorded in para 12 of the impugned order dated 20.12.2018, inasmuch as it restrains the plaintiffs, i.e. the appellants in the present proceedings, from causing obstruction in the use and possession of the super-structure on the Ground, Second and Third Floor of the suit property bearing No. P-3, Naveen Vihar, Shahdra, Delhi.
15. Mr. Gupta submits that the appellants were the builders who constructed the suit property, in lieu of which they were entitled to the First Floor of the suit property alongwith Rs.6 lacs as consideration for the construction undertaken. It is pointed-out that this fact also finds mention in para 11 of the impugned order, whereby the defendants were restrained from interfering with the peaceful possession and enjoyment of the appellants in respect of the First Floor of the property.
16. Mr. Gupta points-out that the local commissioner's report dated 23.10.2019 submitted pursuant to the directions of this court also confirms (vide para (m) appearing at page 117 of the appeal paper- book) that the First Floor of the suit property is in the possession of the appellants. Furthermore, paras (j) and (k) at page 116 of the appeal- paper book; para (k) at page No. 118 of the appeal paper-book; and paras (k) and (d) at page 120 of the appeal paper book, further show that the respondent is in possession of the Ground Floor, Second Floor, Third Floor and Terrace of the suit property.
17. In view of the above, counsel submits that the present appeal may be disposed-of directing the parties to maintain status-quo in terms of the This is a digitally signed order. FAO 579/2018 Page 3 of 4 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:50:03 local commissioner's report, as was also directed vide order dated 18.10.2019 made in the matter.
18. Considering that the respondents have been set ex-parte; that no objections have been filed by them to the local commissioner's report; and in view of the aforesaid discussion, the present appeal is disposed- of, directing that the parties shall maintain status-quo in terms of what is recorded in local commissioner report dated 23.10.2019.
19. The appeal stands disposed-of in the above terms.
20. Pending applications, if any, also stand disposed-of.
ANUP JAIRAM BHAMBHANI, J OCTOBER 13, 2023 ds This is a digitally signed order. FAO 579/2018 Page 4 of 4 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:50:03