Delhi District Court
Mohd. Jameel vs Mohd. Basheer S/O Mohd. Babu on 18 January, 2010
IN THE COURT OF Dr. KAMINI LAU
ADDL. DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
RCA No. 75/2009
Mohd. Jameel,
S/o Late Sh. Mohd. Yaqoob,
R/o 1907, Mohalla Qabrastan,
Turkman Gate, Delhi.
.......... Appellant
Versus
1. Mohd. Basheer S/o Mohd. Babu,
2. Sh. Sallauddin S/o Haji Sahab
Both R/o House No. 1913
Mohalla Qabrastan, Turkman Gate,
Delhi.
3. Municipal Corporation of Delhi,
Town Hall, Chandni Chowk, Delhi.
(Through Commissioner)
4. The S. H. O.
PS Chandni Mahal, Delhi
.......... Respondent
Date of Institution : 22.09.2009
Arguments heard on : 21.12.2009
Date of Decision : 18.01.2010
1
: J U D G M E N T :
This appeal is directed against the Judgment / Decree of Ld. Civil Judge dated 22.7.2009 dismissing the suit of the appellant / plaintiff before the Trial Court for permanent injunction wherein he was seeking to restrain defendants from making or permitting to be made any illegal and unauthorized construction in property bearing No.1913, Mohalla Qabrastan, Turkman Gate, Delhi (suit property) on the averments that he has been residing in House No. 1907 in the same locality.
It is pleaded that the defendant No. 1 and 2 have encroached upon the government land which property is situated outside the house of the present appellant. It is stated that defendant no.1 and 2 have demolished parts of the property prior to filing of the suit to raise illegal and unauthorized construction for using the same for commercial purposes thereby adversely effecting the sewer and other 2 supplies as a result of which the sewers are being blocked and are causing ill health to the resident of the vicinity. It is stated that the complaint was also made in this regard which complaint did not yield any results.
The respondents no. 1 & 2 in their written statement had denied all the allegations made in the plaint and had also denied that they are encroachers in the government land and that the suit has been filed with malafide intention to harass them. It is pleaded that they have not raised any unauthorized construction in the property but have carried out renovation and repairs which is permissible as per building byelaws of MCD and for which no prior sanction was required from the MCD.
The respondent no. 3 also took preliminary objection and has stated that the suit was barred for the want of statutory notice u/s 478 of DMC Act. It was also stated that no unauthorized construction was seen in progress 3 during inspection of the property on 28.11.2005, though minor repairs had been being carried out which is permissible under Clause 6.4.1 of building byelaws.
The respondent no. 4 also raised the preliminary objection regarding maintainability of the suit in view of the want of prior notice u/s 140 D. P. Act.
The impugned judgment has been assailed on various grounds as mentioned in the appeal which are not being repeated for the sake of brevity. It is alleged that Ld. Trial Court has seriously erred in not appreciating the evidence of the appellant and had illegally, hurriedly and in violation of the principles of natural justice, pronounced the judgment. It is pleaded that the suit in question had been fixed for evidence of the plaintiff / present appellant on 22.7.2009 on which date the plaintiff is even cross examined and also would have further evidence but as the plaintiff was to appear before the court at Patiala House in some criminal 4 case, he could not appear in time to cross examine the witness and had sent his sister to the trial court to make a request. The matter further was kept pending till 12.25 p.m. but since the appellant could not reach from Patiala House Court in time and he could not appear before the Ld. Trial Court for reasons aforesaid, and that grave miscarriage of justice has been caused only because the Ld. Trial Court did not appreciate the situation in which the appellant was caught. It is also alleged that the Ld. Trial Court has not applied its judicious mind to the matter and the appellant is likely to suffer from irreparable losses due to which reason the judgment / decree is required to be set aside.
Detailed reply has been filed by the respondent no.1 & 2 wherein they have raised preliminary objection that the appellant is habitual litigant and has filed the present litigation only to extort money illegally and unlawfully from the respondents no.1 & 2 and has not come to the court with 5 clean hands. It is pleaded that several opportunities have been granted to the appellant before the Ld. Trial Court to conclude his evidence but the appellant / plaintiff before the Trial Court was not intentionally and deliberately appearing before Ld. Trial Court. It is stated that the property of respondents no. 1 & 2 is purely residential and they had only made some consequential rectification as permissible under the existing byelaws, whereas the appellant has deliberately in order to extract money and approached the Ld. Court in the present suit. It is alleged that the appellant himself is a violator and is wanting to take advantage of his own wrongs.
I have considered the submission made before me. I have also considered the written synopsis of arguments placed before this court by respondent no. 1 and 2 and the MCD. The appellant despite opportunity has not placed on record any written synopsis of arguments. The appellant appears to have abandoned the present proceedings. Initially 6 he had been appearing in person as evident from proceeding sheet dated 22.09.2009, 20.10.2009 and 24.11.2009 and when he was granted time to file written synopsis of arguments on 21.12.2009, neither the appellant has appeared nor any written synopsis were filed. Despite the aforesaid, the appellant was granted one more opportunity to file written synopsis of arguments by 15.01.2010 with advance copy to the counsel for respondents failing which no further opportunity was likely to be granted. Despite the aforesaid indulgence, the appellant has not filed any written synopsis of arguments. Therefore, under these circumstances this court is proceeding on the basis of Trial Court records and the grounds raised in the appeal and the material placed before it.
Firstly, it is evident from the Trial Court record that the appellant before this court who was the plaintiff before Trial Court, has not been regular in his appearance 7 before the Ld. Trial Court a fact which is revealed from the proceedings sheet dated 05.11.2005 when it was only the plaintiff who appeared in person and not his counsel and steps were also not taken by the plaintiff to get serve the respondent no.1 & 2. Thereafter, it is evident from the proceeding sheet dated 03.02.2006 and 18.05.2006 that none had appeared for the plaintiff and thus adjournments were thursted upon the court on both the occasions. Again on 17.10.2006 it was only the plaintiff who had appeared in person without his counsel and the case was adjourned for admission denial of documents and framing of issues. On 24.01.2007 it was again the plaintiff who had appeared in person without his counsel and therefore the court was compelled to frame the issues in the absence of his counsel since the counsel of other sides were already present and thereafter when the matter was fixed for the evidence of the plaintiff none had appeared for the plaintiff on 12.11.2007 8 and also 21.05.2008 and it is evident that on both the occasions the Ld. Trial Court had made specific observation that the plaintiff was present in the court in the first call and was asked to call his counsel but none appeared for the plaintiff thereafter when the file was taken up after the first passover. On both the occasions the case had been adjourned for plaintiff evidence. It is evident that the modus operandi adopted by plaintiff / present appellant the counsel before the Ld. Trial Court was that he appeared on the first call, sought a passover and thereafter left the court. It is further reflected from the proceeding sheet dated 26.02.2008 it was again the appellant / plaintiff who appeared in person without his counsel and had for the first time filed the affidavit of evidence, copy of which was supplied to the defendant counsel in the court itself due to which reason the matter had to be adjourned for his evidence. Thereafter, again on 06.01.2009 when the case was transferred to the Court of Sh. 9 Vidya Prakash, ASCJ Delhi, it was only the defendant and their counsel who have appeared whereas one proxy counsel had appeared for the plaintiff when the court had granted last and final opportunity to the plaintiff to conclude his entire evidence with the directions that the advance copy of the affidavit of other witnesses should be supplied to the counsel for defendant's at least one week in advance. On 22.07.2009 sister of the appellant appeared and sought a passover for calling his counsel. The case was listed for 12.00 p.m. though it was taken by the Ld. Trial Court after conclusion of other matters at 12.25 p.m. and it was observed by the Ld. Trial Court that the defendant's as well as other counsels were waiting since morning and passover was granted only on the request of sister of plaintiff, as the plaintiff was in the Patiala House Court in some other matter and has not appeared before Ld. Trial Court in time and it was for these reasons the evidence of the plaintiff was closed and the court 10 proceeded to pass the impugned judgment.
As per provisio of Order 17 Rule 1 CPC it has been mandatorily provided that no adjournment should be granted for more than three times to the party during the hearing of the suit. In the present case there has been more than three occasion on which indulgence had been granted to the appellant who was the plaintiff before the Ld. Trial Court, to say that the Ld. Trial Court had been very unfair, unjust is rather unfair. As per the provisions of Rule 3 of Order 17 CPC where any party to the suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the court may proceed to decide the suit forthwith.
In the present case sister of the plaintiff was present and requested for a passover which request was 11 granted. Thereafter despite having kept the file pending the plaintiff / witness did not appear before the Ld. Trial Court. His repeated conduct in the last many years had been similar. His repeated attempts were to drag on the litigation on one ground or the other which disentitled him to any further indulgence.
As discussed herein above, the counsel for the appellant had not been appearing repeatedly before the court, whereas in so far as the appellant himself is concerned it had been observed by the court on many occasions that he had appeared at the first call, taken a passover and did not appear thereafter. Having accommodated the appellant for more than three occasions, where then was the necessity to keep the file further pending. The grounds so raised by the appellant that he was engaged in the Patiala House Court in a criminal proceeding. But the details of said proceedings where he was so held up have not been mentioned by the 12 appellant either in his appeal or in his affidavit. The conduct of the appellant before this is again same. He has virtually abandoned the proceeding and has failed to appear either in person or through his counsel and has also not filed his written synopsis of arguments despite opportunity.
Therefore, under these circumstance I hereby hold that there is no illegality or irregularity in the order passed by the Ld. Trial Court dated 22.07.09. The appeal is hereby dismissed. Decree sheet be prepared accordingly. Trial Court record be sent back alongwith copy of this order. Appeal file be consigned to record room.
Announced in the open court (Dr. KAMINI LAU) Dated: 18.01.2010 Addl. District Judge: Delhi 13 RCA No. 75/2009 Mohd. Jameel Vs. Mohd. Basheer & Ors. 18.01.2010 Present: None.
Vide separate detailed judgment dictated and announced in the open court, but yet not typed, the appeal is hereby dismissed. Decree sheet be prepared accordingly. Trial Court record be sent back alongwith copy of this order. Appeal file be consigned to Record Room.
(Dr. Kamini Lau) ADJ/Delhi /18.1.2010 14