Delhi District Court
Smt. Damyanti Gupta & Ors. vs . Dda & Ors. Page 1 Of 6 on 22 October, 2016
IN THE COURT OF SH. TARUN YOGESH,
SCJCUMRC (CENTRAL), TIS HAZARI COURTS, DELHI
MCA No. : 1314/16
1. Mrs. Damyanti Gupta,
W/o Sh. L. M. Gupta,
R/o 60UB, Jawahar Nagar,
Delhi - 110 007.
2. Mrs. Pushpa Chaudhry,
W/o Sh. Pramod Kumar,
R/o 91, Vaishali, Pitampura,
Delhi110 034.
3. Mrs. Jeewan Majumdar,
W/o Late Shri. P. K. Majumdar,
R/o 12, Shanti Kunj Apartments,
Meerut (UP).
4. Mrs. Sushma Aggarwal,
W/o Shri. P.C. Aggarwal,
R/o 6/8, Jagriti Vihar, Meerut (UP).
5. Mrs. Madhu Aggarwal,
W/o Shri C. L. Aggarwal,
R/o 92, Prasad Nagar, Karol Bagh,
New Delhi 110 005.
6. Mrs. Kumkum Jindal,
W/o Shri P. K. Jindal,
R/o House No. 297, RPC,
Opp. A.P.J. School,
Sheikh Sarai PhaseI, New Delhi.
7. Shri Vijay Chaudhry,
S/o Late Shri Prem Raj Chaudhry,
R/o D76, Kamla Nagar,
Delhi110 007.
Smt. Damyanti Gupta & Ors. vs. DDA & Ors. Page 1 of 6
8. Shri Virendra Chaudhry,
S/o Late Shri Prem Raj Chaudhry,
R/o 4282/3, Darya Ganj,
New Delhi110 002.
9. Ms. Astha Goel,
D/o Late Shri Ajay Goel,
R/o 42/2 Saket,
Meerut - 250 001 (U.P). ....Plaintiffs/Appellants.
Versus
1. The Vice Chairman,
Delhi Development Authority,
Vikas Sadan, INA, New Delhi.
2. The Deputy Director (OSB),
Vikas Sadan, ABlock,
Second Floor, INA, New Delhi.
3. Shri Babu Ram Gupta,
S/o Shri K.C. Gupta,
R/o 202, Bharat Apartments,
Sector13, Rohini,
New Delhi. (Since deceased)
Through Defendant no.5 as his legal heir.
4. Smt. Swaran Kanta Gupta,
W/o Shri. P. D. Gupta,
R/o 197, Sainik Vihar, New Delhi.
5. Smt. Raj Kumari Gupta,
W/o Shri Babu Ram Gupta,
R/o 202, Bharat Apartments,
Sector13, Rohini, New Delhi.
(For herself and as legal heir of defendant no.3)
6. M/s. Ashoka Metal Decor (Pvt.) Ltd.,
53/73, Ramjas Road, Karol Bagh,
New Delhi.
Smt. Damyanti Gupta & Ors. vs. DDA & Ors. Page 2 of 6
7. Shri Ashok Gupta,
S/o Shri Harswarup Gupta,
60/5, Ramjas Road, Karol Bagh,
New Delhi. ..... Respondents.
Date of institution of appeal : 29.09.2016
Date on which judgment was reserved : 30.09.2016
Date on which judgment was pronounced : 22.10.2016
ORDER
1. Appellants Mrs. Damyanti Gupta & Ors. (hereinafter referred as plaintiffs) have filed "Miscellaneous Civil Appeal" against proceedings of Ld. Trial Court by asserting that their application for interim injunction filed under Order XXXIX Rules 1 & 2 CPC in Suit No. CS/30/14 titled "Mrs. Damyanti Gupta & Ors. Vs. DDA & Ors." has not been disposed of till date.
2. Submissions upon maintainability of appeal has been addressed by Advocate Sh. S. C. Kumar and appellant no. 8 Sh. Virender Chaudhary who claims to be a lawyer by relying upon following judgments :
(i) Para no. 9 of judgment titled "A.R. Ponnusamy vs. Thoppalan @ Karuppa Gounder"
AIR 2004 Madras 147 holding that it is incumbent upon the part of court to pass order one way or other and application for interim injunction should not be kept pending.
(ii) Para no. 9 of judgment titled "Rajendraprasad R. Singh vs. Municipal Corpn. of Smt. Damyanti Gupta & Ors. vs. DDA & Ors. Page 3 of 6 Greater Mumbai" AIR 2003 Bombay 392 holding that order refusing to grant or order postponing consideration of grant till service is effected on other side is passed under Rules 1 & 2 of Order XXXIX CPC and is therefore appealable under Order XLIII Rule 1 (r) CPC.
(iii) Paras no. 3 and 16 of judgment titled "A. Venkataubbiah Naidu vs. S. Challapan" 2000 (4) RCR (Civil) 396 holding that court shall make an endeavour to finally dispose of application of injunction within a period of 30 days under Order XXXIX Rule 3A CPC.
(iv) Para no. 21 of judgment titled "Jayesh Kanaiya Lal Shukla & Ors vs. RFCL Ltd." 2010 VI AD (Delhi) 280 holding that the aggrieved party shall be entitled to right of appeal where the mandate of order XXXIX Rule 3A of the Code is flouted.
(v) Paras no. 21, 22 & 23 of judgment titled "Ratna Commercial Enterprises Ltd. & Anr. vs. Vasutech Ltd." AIR 2008 Delhi 99 (DD) holding that affected party which is unable to get its application under Order XXXIX Rule 4 disposed of in terms of Rule 3A can file an appeal.
(vi) Paras no. 19, 22 to 25 of judgment titled "Ratna Commercial Enterprises Ltd. & Anr. vs. Vasutech Ltd." 143 (2007) Delhi Law Times 754 (DD) holding that affected party which is unable to get its Smt. Damyanti Gupta & Ors. vs. DDA & Ors. Page 4 of 6 application under Order XXXIX Rule 4 disposed of in terms of Rule 3A can file an appeal.
3. Appellant no. 8 and his counsel have referred to certified copies of order sheets of Ld. Trial Court since 27.11.2013 till 02.08.2016 besides adverting to impugned order dated 20.09.2016 (mentioned in para no. 13 of appeal) for submitting that plaintiff's application under Order XXXIX Rules 1 & 2 CPC was pressed on each day but was not taken up by Ld. Trial Court.
4. Perusal of certified copies of order sheets of Ld. Trial Court nonetheless discloses that defendants no. 6 & 7 have filed their application under Order VII Rule 11 CPC for assailing plaintiff's suit and also relied upon judgment dated 30.09.2012 of Hon'ble High Court of Delhi whereas impugned order dated 20.09.2016 was passed by Ld. Trial Court after hearing submissions for listing the case for order upon defendant's application under Order VII Rule 11 CPC.
5. It is, therefore, revealed from order sheets of Ld. Trial Court that matter has been pending for arguments and orders upon defendants' application under Order VII Rule 11 CPC since 11.08.2015.
6. None of the judgments relied by appellant / counsel are relevant in the facts of present case as aforesaid observations were made by Hon'ble Courts with respect to provision under Order XXXIX Rule 3 A CPC in case where exparte injunction has been granted without notice to opposite party which mandates the court to make endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted.
7. Present Miscellaneous Civil Appeal assailing proceedings before Ld. Trial Court / order dated 20.09.2016 listing the case for order Smt. Damyanti Gupta & Ors. vs. DDA & Ors. Page 5 of 6 upon defendant's application under Order VII Rule 11 CPC is therefore held as gross abuse of process of law and is according dismissed subject to cost of Rs.10,000/ to be deposited with the Office of DLSA, Central District, THC, Delhi.
Copy of order be sent to Office of DLSA, Central District, THC, Delhi for realizing cost in case the same is not deposited by appellants within two weeks from today.
Another copy of order be sent to Ld. Trial Court for information.
Appeal file be consigned to Record Room.
Announced in open court (Tarun Yogesh)
on 22nd October, 2016 SCJ/RC (Central),THC/Delhi
Smt. Damyanti Gupta & Ors. vs. DDA & Ors. Page 6 of 6