Delhi District Court
Shri Manu Chauhan vs North Delhi Municipal Corporation on 28 August, 2020
IN THE COURT OF JSCC-CUM-ASCJ-CUM GDN. JUDGE:
NORTH DISTRICT, ROHINI: DELHI
PRESIDING OFFICER: AANCHAL, DJS
Suit No. 363/19
In the matter of:
Shri Manu Chauhan,
S/o Shri Anil Kumar,
R/o 2528, First Floor,
Hudson Line Kingsway Camp,
Delhi-9 ..........Plaintiff
Versus
1.North Delhi Municipal Corporation, Dr. SPM Civic Centre, Minto Road, JLN Marg.
2. S.D.M. Azadpur, New Delhi. ..........Defendants Date of institution : 28.03.2019 Date of announcement of Judgment : 28.08.2020 JUDGM ENT
1. Vide this judgment, this Court shall decide the suit filed by the plaintiff against the defendants seeking following reliefs:-
(i) Decree of declaration thereby declaring Ram Lal son of Sh.
Hira Nand as dead or in the alternate decree of declaration in favour of the plaintiff thereby declaring Ram Lal son of Sh. Hira Nand dead only for the purpose of conversion of the property no. 2528, First Floor, Hudson Line, Kingsway Camp, Delhi.
(ii) Decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing to issue death certificate of Shri Ram Lal to the plaintiff in the interest of justice.
2. As per the case filed by the plaintiff as pleaded in the plaint:-
2.1. The plaintiff is legal and bonafide owner and in peaceful possession of first floor of House No. 2528, Hudson Line, Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 1 of 9 Kingsway Camp, Delhi having purchased the same from Shri Naresh Kumar Ratra and Shri Satish Ratra vide registered sale agreement dated 19.07.2010.
2.2. The property in question was allotted to Shri Hira Nand by the DDA vide Perpetual lease registered no. 1495 Book No. 1 Vol.
No. 4874 pages 88 to 93 and after raising the construction on the aforesaid plot, the allottee Shri Hira Nand sold the back half portion of the first floor of the property to his son Shri Naresh Kumar Ratra vide agreement to sell and GPA dated 22.09.2020.
2.3. The said Shri Hira Nand died on 12.01.2005 and his wife Smt. Kaushalya Devi died on 03.09.2006 leaving behind seven sons and one daughter as class I legal heirs. After the death of the allottee Shri Hira Nand and his wife Smt. Kaushalya Devi all other remaining legal heirs i.e. 6 sons, one daughter and LRs of missing son Shri Ram Lal who went missing since 04.08.1991 had relinquished their respective shares in respect of front half portion of the property in question in favour of Shri Naresh Kumar Ratra and Sh. Satish Kumar Ratra both son of Late Sh. Hira Nand.
2.4. The said front half portion was purchased by the plaintiff from the releasee vide registered sale agreement dated 19.07.2010 and the back half portion was also purchased from Sh. Naresh Kumar Ratra on 19.07.2010 who had purchased the same from his father Sh. Hira Nand.
2.5. That subsequent to the purchase of the property in question, the plaintiff applied for the conversion of the said property vide Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 2 of 9 application no. 04401 dated 11.05.2015 which conversion is pending for the last several years due to want of an opinion about the legal position of the missing son Shri Ram Lal.
2.6. Now, the plaintiff has received a letter no. 463 dated 11.03.2019 and relevant contents of the same are as follows:-
"This has reference to your appearance dated 14.02.2019 before vice Chairman DDA in his public hearing. In this connection I am directed to request you to furnish a declaration as per section 108 of Evidence Act, 1872 from the competent court of law, thereby declaring that the said legal heir was missing since 7 years prior to execution of GPA/ATS as earlier intimated vide this office letter of even number dated 25.09.2018 and 31.07.2018.
You are once again requested to provide the required information within 15 days from the date of issue of this letter, failing which this conversion application attracts its rejection."
2.7. A complaint with regard to missing of Sh. Ram Lal was lodged by the legal heirs of Sh. Ram Lal and on the basis of said complaint, entry was made vide DD No. 23A dated 04.08.1991. It is submitted that the police of PS: Mukherjee Nagar issued a certificate dated 19.07.2018 certifying that the said Sh. Ram Lal is missing since 04.08.1991 and is still untraceable uptill date as per record of PS: Mukherjee Nagar.
2.8. Several requests were made by the plaintiff earlier for the issuance of death certificate of late Sh. Ram Lal in the office of the defendants, but the defendants and DDA advised the plaintiff to take relief from the competent court. The plaintiff has no other efficacious remedy/except to file the present suit.
Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 3 of 9With these averments, the plaintiff has filed the present suit.
3. The defendant no. 1 filed the written statement and the suit of the plaintiff is objected on the ground that the same is barred under the provision of Section 477 and 478 of DMC Act for want of statutory notice. On merits, it is stated that in such case, the death and place of missing person has to be determined by the competent authority or by the court on the basis of evidence, therefore, death certificate could not be issued by the defendant no. 1. Finally, the suit of the plaintiff prayed to be dismissed.
4. Official of defendant no. 2 appeared, but no written statement was filed on behalf of defendant no. 2.
5. Considering the pleadings, following issues were framed vide order dated 27.05.2019 passed by the Ld. Predecessor of this Court:-
1. Whether the plaintiff is entitled to the decree of declaration in his favour and against the defendants as prayed in para no. a) and b) of prayer clause? (OPP)
2. Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendant, as prayed for? (OPP)
3. Whether the suit of the plaintiff is barred by the provisions contained under Section 477 and 478 of the DMC Act for want of service of statutory notice? (OPD-1)
4. Whether the suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 CPC? (OPD-1)
5. Relief.
1. Sh. Manu Chauhan/plaintiff is the only witness examined as PW-1 Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 4 of 9 and he relied upon the following documents:-
1. Copy of agreement to sell dated 27.06.2010 and dated 06.07.2010 of back and front portion respectively as Ex. PW- 1/1 (Colly) (OSR);
2. Copy of lease deed dated 21.02.1988 as Ex. PW-1/2 (OSR);
3. Copy of agreement to sell dated 22.09.2000 as Mark A;
4. Copy of certified copy of RD dated 19.07.2010 as Ex. PW-1/4;
5. Copy of letter to the DDA, vide letter number L-
7(2528)83/OSB/Pt/463 dated 11.03.2019 as Mark B;
6. Copy of status of the missing report of Ram Lal dated 04.08.1991 as Ex. PW-1/6; and
7. Publication in the newspaper of 29.07.2019 as Ex. PW-1/7.
2. Plaintiff was cross-examined on behalf defendant no. 1, but none appeared for defendant no. 2. Hence, defendant no. 2 was proceeded ex-parte.
3. Despite opportunity granted, defendant no. 1 did not lead the evidence. Accordingly, DE was closed vide order dated 11.12.2019.
4. Final arguments heard. Record is perused carefully.
5. Now, this court proceeds to give the issue-wise findings. This Court is taking up the issues no. 3 at first.
Issues No. 3:-
"Whether the suit of the plaintiff is barred by the provisions contained under Section 477 and 478 of the DMC Act for want of service of statutory notice? (OPD-1)
6. The onus to prove this issue lies upon defendant no. 1.
Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 5 of 96.1. As per the provision of Section 477 DMC Act, protection is granted to Municipal corporation or its employee or officer against any suit in respect of any act done in good faith under DMC Act or regulations or bye-laws made under the provisions of DMC Act. But, this is not the defence of defendant no. 1 that defendant no. 1 acted in good faith, but its case is that the suit of the plaintiff is not maintainable for want of the statutory notice against the Municipal Corporation or its employee or officer which bars the institution of the suit. Service of notice clearly specifying the cause of action and expiry of stated period after such service, is a condition precedent which needs to be satisfied for institution of suit against DMC or its official or officer under Section 478(1) of DMC Act, but its sub-clause 3 provides its exception by stating that "nothing in sub-clause-1 shall be deemed to be applied to a suit in which only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the institution of the suit."
6.2. In the pleadings, the plaintiff has not specifically craved for exemption of statutory notice, but it has been pleaded that vide letter dated 11.03.2019, the plaintiff has been asked by DDA to submit declaration regarding the death of Sh. Ram Lal prior to the date of execution of agreement to sell in his favour and upon the failure of production of the same, his application would attract rejection after 15 days. The plaintiff has also produced this letter in his evidence as Mark B. It speaks in itself that had the plaintiff issued the statutory notice and waited for expiry of the period as stated in the provision of Section 478(1) of DMC Act, the purpose of his suit would have defeated. Further, even it has been specifically pleaded on behalf of defendant no. 1 that no such death certificate could have been issued by it without the orders court. Therefore, this court is of the view that Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 6 of 9 the case of the plaintiff falls under the exception given under the provision of Section 478 (3) of DMC Act and the suit is held not barred under the provision of Section 478 of DMC Act. Consequently, this issue is decided in favour of the plaintiff and against the defendants.
Issues No. 1 and 4:-
Whether the plaintiff is entitled to the decree of declaration in his favour and against the defendant as prayed in para no.
a) and b) of prayer clause? (OPP) AND Whether the suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 CPC? (OPD-1)
7. The onus to prove issue no. 1 lies upon the plaintiff whereas the onus to prove issue no. 4 lies upon defendant no. 4. These two issues are taken up together since the facts necessary to decide these issues are overlapping.
7.1. The plaintiff has deposed that he purchased the suit property a more specifically, the front half portion of same from the releasee in whose favour LRs of the allottee had executed the release deed. Documents produced show that LRs of Ram Lal who went missing on 04.08.1991 i.e. about 19 years prior to the date of sale agreement were amongst those who had executed release deed in favour of the releasee and the plaintiff had applied for conversion of the property in 2015 which was kept pending and he was asked to submit the declaration as per the Section 108 of Indian Evidence Act by DDA only on 11.03.2019. The plaintiff has also produced the copy of relinquishment deed as Ex. PW-1/4 and letter from DDA as Mark B. It is not the case of the defendant no. 1 that the plaintiff is/was not the party to the agreement to sell Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 7 of 9 executed in 2010 or plaintiff was in any manner aware about the requirement of such declaration before his letter dated 11.03.2019 issued by the DDA. Therefore, the defendant no. 1 has been unable to prove that plaintiff has no cause of action to file the present suit, due to which the present suit could be rejected under order 7 rule 11 CPC and further considering the report/certificate Ex. PW-1/6 issued from the concerned police station, which is not rebutted or challenged by defendant no. 1 in any manner by producing any evidence ocular or documentary or by cross-examination in this respect, it is held proved that the son of allottee of DDA namely Ram Lal went missing on 04.08.1991 and he could not be traced till 2018, consequently he is not being heard continuously since 04.08.1991, therefore as per Section 108 of Indian Evidence Act, Sh RamLal S/o Hira Nand is presumed dead as on the expiry of seven years from 04.08.2020 i.e. the date of complaint/missing report made into the police station i.e. since 05.08.1998.
7.2. In view of the above discussion, the plaintiff is held entitled for declaration that Ram Lal S/o Hira Nand is presumed dead since 05.08.1998 and issues under consideration are decided accordingly.
Issues No. 2:-
Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendant, as prayed for? (OPP)
8. The onus to prove this issue lies upon the plaintiff. In view of the findings given in issue no. 1, the plaintiff is also entitled for injunction and this issue is also decided in favour of the plaintiff.Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 8 of 9
Relief:
9. In view of findings given on issues involved in the suit, the suit of the plaintiff is hereby decreed that Ram Lal S/o Hira Nand is hereby declared dead as on 05.08.1998 and the defendant no. 1 is also directed to issue the death certificate as per the declaration granted.
No order so as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court (Aanchal) on 28th day of August, 2020. Add. Senior Civil Judge cum Judge, Small Causes Court cum Guardian Judge, North District, Rohini Courts, Delhi.
Suit No. 363/19 Manu Chauhan Vs. NDMC and Ors. Page 9 of 9