Delhi District Court
Sh. R. S. Vaish vs Union Of India on 31 October, 2012
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0224952012
RCA No. 26/2012
Sh. R. S. Vaish
S/o Late Sh. Jai Dayal Mal,
R/o 45/4A, Mall Road,
Delhi - 110 054. ..........Appellant
VERSUS
1. Union of India
Through its Secretary,
Ministry of Defence,
South Block, New Delhi.
2. Military Estate Office,
Delhi Circle, Delhi Cantonment. ...... Respondents
Date of institution : 13.05.2012
Arguments completed on : 25.10.2012
Date of order : 31.10.2012
ORDER
1. The plaintiff has come in present appeal against judgment and decree dated 16.02.2012 passed by Ld. Civil Judge dismissing his suit for injunction.
2. At the very outset it may be mentioned that the appeal is not accompanied by certified copy of judgment RCA 26/12 1 of 11 2 and decree without which the same is incompetent. Only a true copy of the judgment has been filed. There is no application for exemption from filing certified copy of judgment and decree what to say of orders of exemption. The certified copy of the judgment and decree was filed on 7.7.2012. Thus at the best appeal can be treated as having been filed on 7.7.2012.
3. The next hurdle is that limitation for filing appeal before District Court is 30 days. Impugned judgment and decree are dated 16.2.2012. The time spent in obtaining copy of judgment and decree cannot be excluded as copy thereof was applied on 8.5.2012 after expiry of limitation for filing appeal. Even if the time spent in obtaining copies is excluded, the copy was prepared on 8.6.2012 and the appeal should have been filed by 16.4.2012. The same was barred by limitation on 13.5.2012 when the same filed. The position would worsen if it is treated as having been filed on 7.7.2012 as discussed above.
4. There is an application for condonation of delay. The same proceeds on the avernments that suit was being RCA 26/12 2 of 11 3 conducted by earlier counsel, the earlier counsel abandoned the proceeding without intimating the appellant. The appellant was not aware about the passing of the impugned judgment. Appellant came to know about the same on 10.5.2012 when the officials of the respondent came on spot and started wire fencing in front of the gate of the appellant and collecting material for raising wall. Thereafter the appellant contacted present counsel who on making inquiry came to know that suit had been dismissed. Then he applied for certified copy and the present appeal was filed. Delay in filing appeal is neither intentional nor deliberate. The appellant will suffer grave irreparable loss if delay is not condoned. The application is accompanied by affidavit of the appellant.
5. The respondent has filed reply to application for condonation of delay raising preliminary objection that appellant has not submitted any reasonable ground on day to day delay as required by law. By condoning delay, valuable right of the opposite party is disturbed. On merits it submitted that mere engaging of counsel does not RCA 26/12 3 of 11 4 relieve the party of his duty to contact his counsel. Default/negligence of the counsel cannot be a sufficient ground.
6. I have gone through the material on record and heard the arguments. A very interesting feature is that as per application for condonation of delay the appellant came to know of the judgment and decree on 10.5.2012 when the official of the respondent came at the spot. But certified copy of the impugned judgment and decree was applied on 8.5.2012. The same belies the plea of the appellant that he was not aware of the judgment and decree. Moreover the application is not accompanied by the affidavit of previous counsel. The appellant did not write to Bar Council regarding abandonment of the case by his previous counsel without informing him. The respondent has rightly relied upon Ram Lal Moti Lal and Chhete Lal Vs Rewa Coalfields Ltd. (1962) SCR 762. At page 767 of the report it has been observed that when period of limitation expires, the opposite party obtains a benefit to treat the decree as beyond challenge and said legal RCA 26/12 4 of 11 5 benefit should not be light heartedly disturbed. In M. Paul Babuja Vs Union of India 75 (1998) DLT 634 it was held that by engaging a counsel party is not relieved of his duties. If party is in default, keeps no contact with counsel, negligence of counsel cannot come to aid to establish sufficient cause. The application for condonation of delay is dismissed. With this the appeal must automatically come to end.
7. Anyhow even on merits the appellant has no case.
Facts that can be gathered from the judgment are that appellant filed a suit on the allegations that he was owner of property No. 45/4-A, Mall Road, Delhi. He purchased the same vide registered sale deed dated 22.11.1977. On the eastern side of his property there is a passage about 50 ft. wide. Originally the entire land was ownered by defence department which sold 3.2 acres to Rai Sahib Choudhary Banarsi Dass from whom the same devolved upon his son Inder Prakash Choudhary. Subsequently it was sold to M/s Rentiers & Financiers Pvt. Ltd. vide sale deed dated 26.11.1961 and the appellant purchased the land RCA 26/12 5 of 11 6 from the said firm. Lay out plan was sanctioned on 16.3.1962, building plan was sanctioned on 14.9.1973, completion certificate was issued on 31.7.1976. On eastern side some land was allotted to CPWD and Education Department on which CPWD constructed Qrs. having approach from Lucknow Road. School building has also approach through Lucknow road. Few moths ago CPWD Qtrs. were demolished and Metro Station was built which has approach from Main Mall Road as well as from Lucknow Road. On western side there are various private bungalows. Appellant as well as predecessor had been using the said passage for the last more than 70/80 years and have easementary rights. Appellant's property has no other motorable approach except the said passage. In June 1983 the respondent handed over possession of 3.19 acres out of plot No. 39 to Education Department and at that time also they left passage as open space for ingress and egress for plaintiff and other bungalow owners. On 10.10.07 the employees of respondent visited the premises and were making measurement etc. On inquiry it RCA 26/12 6 of 11 7 revealed that they intended to constrct a boundary wall infront of the bungalows including plaintiff's bungalow to convert the said passage into their exclusive entry/passage to the flats/Army Qrs. situated on the rear side.
8. In written statement the respondent pleaded that suit was not maintainable for want of notice u/s 80 CPC, apellant has not submitted sanctioned plan of his house No. 45/4. Permission to Sh. I.P. Choudhary had already been cancelled by letter dated 16.12.1988 by Government of India, Ministry of Defence, New Delhi. The land belongs to Ministry of Defence. It denied that on northern side there is a jungle. According to them there are residential Qrs. of Army personnel. Besides there is Garrison Engineer Office and Defence Research and Development Organisation Office which is very sensitive area.
9. On the pleadings of the parties, following issues were framed by the Ld. Trial Court on 7.10.2009. ISSUES
1. Whether the plaintiff is entitled for the decree of permanent injunction? OPP RCA 26/12 7 of 11 8
2. Relief.
10. The plaintiff/appellant did not adduce any evidence in support of his case. His evidence was closed vide order dated 19.12.2011. On the other hand the respondent/ defendant examined Lt. Col. Tusar Pratim Boruah as DW-1. He has filed affidavit EX. DW1/X and referred to the site plan as Ex. DW1/1, copy of letter of 1988 regarding cancellation as Ex. PW1/2 and copy of order dismissing application u/o 39 R 1 & 2 as Ex. PW1/4, copy of order dismissing application u/o 26 R 9 CPC as Ex. PW1/5. No cross examination was effected on DW-1 despite opportunity.
11. After going through the material on record and hearing the arguments advanced by counsel for respondent/defendant the Ld. Trial Court dismissed the suit. The judgment specifically mentioned that none came forward to address arguments on behalf of the plaintiff/appellant.
12. The Ld. Trial Court observed that burden of proving issue No. 1 was on the plaintiff who failed to adduce any RCA 26/12 8 of 11 9 evidence. Rather the evidence led by respondent/ defendant showed that plaintiff/appellant was given passage of 30 feet on Probyn Road through Rivira Apartment entrance as per site plan Ex. D-1. The Ld. Trial Court relied upon Rajinder Kakkar Vs DDA 1994 (28) DRJ 432 DB and Bakshi Ram Vs DDA 1995 (32) DRJ 597. In the said judgment it was held that court should not grant injunction which will have the result of permitting or protecting the continued illegal possession of public land.
13. In Premji Rattansay Shah & Ors Vs UOI & Ors 1994 (6) JT 585 and in Mahadeo Savlaram Shelke & Ors Vs The Puna Municipal Corporation & Anr. 1995 (2) JT 504 the same preposition was reiterated.
14. In Pratibha Co-operative Housing Society Ltd. & Anr. Vs Statement of Maharashtra AIR 1991 SC 1453 it was held that an illegal and unauthorised construction even if it being done over a prolonged time in connivance with certain government agencies does not in any way make it legal.
15. There is one thing more that case of the plaintiff is RCA 26/12 9 of 11 10 based on easement. Site plan Ex. DW1/1 shows that on eastern side of the appellant's property there is Property No. 45/413 and not a passage. The passage is on western side towards Riviria complex. The site plan filed by the plaintiff and placed at page 275 of the file of Ld. Trial Court is totally different from the site plan filed by the plaintiff in appeal. Though neither of the said site plans of plaintiff have been exhibited, yet even an un-exhibited document may be used against the party filing it. This is so as per law laid down by our own Hon'ble High Court in ms Rudnap Export Import Vs Eastern Associate Company & Ors. AIR 1984 Delhi 20.
16. The law regarding easement is discussed in Gauri Amma Krishnamma Vs Seethalakshmi Amma and Ors AIR 2004 Kerala 75. It was held that alternative inconvenient pathway is no ground for claiming easement of necessity. Necessity must be absolute and not convenient mode of enjoyment. Similar view was taken in Sanjeev Kumar Jain Versus Sh. Raghubir Saran Charitable Trust & Ors. 2004 (8) AD Delhi 398. In the RCA 26/12 10 of 11 11 case in hand the plaintiff has alternative passage on the western side. Thus there is hardly any scope of claiming easement on the eastern side.
17. The plaint does not contain any avernment that there was urgency for filing the suit nor the plaintiff has made request in the prayer clause u/s 80(2) CPC for filing a suit without serving notice required u/s 80 CPC. Thus the suit was hit by section 80 CPC.
18. Since the evidence of DW-1 went un-crossed, there is no reason to dis-believe the same as per Sarwan Singh Vs State of Punjab AIR 2002 SC 3652 and Satyendra Kumar Sharma Vs Jitender Kudsia 2006 (1) Vol. 68 Rent Control Reporter 206.
19. For the foregoing reasons I do not find any ground to interfere with the findings of the Ld. Trial Court. The appeal fails and is dismissed. Decree Sheet be prepared accordingly. Trial Court Record be sent back along with the copy of this order. File be consigned to Record Room.
Announced in the open court
on 31th October, 2012. (O.P. GUPTA)
DJ&ASJ-In-Charge(West)/ARCT
Delhi
RCA 26/12 11 of 11