Delhi District Court
(West)02 vs Delhi Development Authority (Dda) on 21 January, 2019
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IN THE COURT OF SH. DEEPAK VATS, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.10859/16
Ranjit Singh
S/o Sh. Jagat Singh
R/o B3, Ambedkar Colony,
Chhattarpur, New Delhi 110030
..........................PLAINTIFF
VERSUS
1. Delhi Development Authority (DDA)
Through its Vice Chairman
Vikas Bhawan, INA, New Delhi - 110003
2. Public Works Departmental
Office of EngineerinCharge,
PWD, 12th Floor, MSO, Building,
ITO, New Delhi.
.....................DEFENDANTS
Suit filed on - 18/02/2018
Judgment Reserved on - 21/01/2019
Date of decision - 21/01/2019
AMENDED SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
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JUDGMENT: By this judgment I shall dispose of a suit for permanent and mandatory injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
Pleadings of the plaintiff :
1. The brief facts of the case as per the amended plaint are that the plaintiff had purchased the suit land from Sh. Rupinder Kumar, vide title documents dt.16/01/2006 and he is in actual and physical possession of the suit property i.e. land measuring 1Bigha 11Biswas, dimensions 75' X 185', forming part of Khasra No.495, situated in Village Mehruali, New Delhi as owner. It is averred that he has been residing and running his nursery and a gurudwara in the suit property and water connection is also installed in the name of plaintiff in the suit property. It is further submitted that vide report of Halqa Patwari dt.15/11/2006, it has been reported that said suit property is not notified under Section4 and 6 of Land Acquisition Act, however, the Management Committee of a Resident Welfare Society, where the suit property is situated has alleged that the plaintiff is an unauthorised occupant of suit property and used to make false complaints against the plaintiff regarding his possession qua suit property and on the said complaint, the defendant's officials concerned used to visit the suit premises and threaten the plaintiff with forcible dispossession and demolition of four rooms constructed on the suit property time and again.
It is further the case of plaintiff that there is a main road situated towards the southern side and running parallel to the the suit property. It is averred that there is proposal to widen the said road by 37.5 meters on either sides from the center point of the said road and in that eventuality, it shall culminate at the Southern boundary wall of the aforesaid plot of the plaintiff Suit No.10859/16 Page2/10 3 leaving the entire property of the plaintiff intact. Thus, it is averred that as per the proposal the road widening project if executed properly shall not affect the suit property. It is further averred that the said road widening is to be executed by the officials of the defendant no.2.
It is further averred that the officials of defendant no.2 are acting contrary to the actual proposal and are trying to intrude into the land of the plaintiff thereby including the same in the road widening process despite the fact that the property of the plaintiff is not notified for acquisition U/S 4 & 6 of the Land Acquisition Act. It is further averred that instead of widening the road from the center point, the officials of defendant no.2 are trying to take and shift the center point of the said road by around 13Mtrs. towards the Northern side and in such an eventuality, the said road widening towards the northern side of the said road I.e. towards the suit property/land of the plaintiff shall be 50.5 meters instead of actual and proposed 37.5 meters.
It is alleged that this shall result in intrusion into the suit property/property of the plaintiff whereby the width of the suit property on its southern side shall be reduced from 80ft. to 50ft. and in such an event the Gurudwara and the other construction existing on the southern side of the aforesaid land/suit property shall be demolished. It is further averred that defendant no.1/DDA and also the defendant no.2 i.e. PWD have nothing to do with the suit property, nor are they competent to interfere in the actual physical possession of the plaintiff qua the suit property.
It is further the case of plaintiff that on 10/02/2008 at about 11.00 A.M. the officials of defendant visited the suit premises and threatened the plaintiff with forcible dispossession from the suit premises and even attempted to demolish the four rooms constructed in the suit property.
Therefore, the present suit has been filed by the plaintiff seeking the relief of permanent injunction thereby restraining the defendant/DDA from Suit No.10859/16 Page3/10 4 dispossessing the plaintiff from the suit property I.e. land measuring 1Bigha 11Biswas, dimensions 75' X 185', forming part of Khasra No.495, situated in Village Mehruali, New Delhi and also a decree of mandatory injunction thereby directing the defendant no.2 to stick to the original/actual proposal of road widening.
Pleading of Defendant :
2. Subsequently, the amended WS was filed by the defendant no.1/DDA in which some preliminary objections were taken, namely, the suit is not maintainable for want of notice U/S 53B of DD Act to be served upon the answering defendant before filing the suit. It is further contended that this court does not have the jurisdiction to entertain the present suit. It is contended that the suit is not maintainable in the present form as the plaintiff is seeking the relief of declaration under the garb of suit for permanent injunction. That the suit is bad for nonjoinder of necessary parties. It is further contended that the suit has not been properly valued for the purpose of court fees and jurisdiction. That the plaintiff has not come to the court with clean hands and has suppressed the material facts. It is contended that by way of amended plaint, the plaintiff has come with a new story regarding existence of Gurudwara on the Government Land as no such averment was made in the original plaint. It is contended that in the year 2008 when the plaintiff filed the suit, he alleged in Para5 of the unamended plaint that he has been residing and running his nursery in the suit property and water connection is also installed in his name and now by way of amendment he has developed a new story of running Gurudwara, only to grab the Government Land and to hinder the development work.Thus, it is claimed that the plaintiff has not approached the court with clean hands.
It is further contended that the suit property falls in Khasra No.498 min (New), 2490/1204 min (Old) are 03Bigha 03Biswa, 499 min (New), Suit No.10859/16 Page4/10 5 2506/1205 (Old) area 01Bigha 18Biswa, 501 min (New), 2458/1206 (Old) area 2Bigha 10Biswa, 503 (New), 2451/1207 (Old) area 2Bigha 07Biswa and the said Khasra numbers have been acquired vide award No.80E/7071 and the physical possession of the land has been handed over to DDA on 23/09/1981, hence, the suit land has been placed at the disposal of DDA vide notification U/S 22(1) of DD Act vide No.F.9(20)78/L&B/Vol.II d t.19/11/1981. It is claimed that the plaintiff is only an encroacher on government's land.
In reply on merits the defendant/DDA has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit be dismissed with costs.
It is pertinent to mention here that vide orders dt.19/05/2015 PWD was impleaded in the present suit as defendant no.2, however, as no WS was filed on behalf of defendant no.2 despite giving opportunities and as the defendant no.2 failed to pursue the matter diligently, it was proceed exparte vide orders dt.08/11/2016.
3. From the pleadings of the parties the following issues were framed on 20/04/2017 :
1. Whether the plaintiff is entitled to the decree of permanent and mandatory injunction as prayed for? OPP
2. Whether there is no cause of action and locus standi to file the suit in hand? OPD
3. Whether the suit in hand is not maintainable in its present form?
OPD
4. Whether the suit in hand is not maintainable for want of notice as required U/S 53B of DD Act? OPD
5. Whether the suit in hand is not properly valued for the purpose of jurisdiction and court fees? OPD Suit No.10859/16 Page5/10 6
6. Whether the suit is barred by jurisdiction? OPD
7. Relief, if any.
4. No evidence has been led by the plaintiff to prove the issues despite given several opportunities and lastly the PE was closed U/O 17 R.3 (a) CPC vide orders dt.21/01/2019. As Order 17 Rule 3(a) contemplates deciding the suit forthwith DE of defendants was also closed vide orders dt 21/01/2019.
5. As no evidence was adduced by either of the parties, this court proceeded to pass this judgment U/O 17 R.3 CPC. The pleadings and the record has been carefully perused and all the issues are decided as follows: ISSUEWISE FINDINGS
6. It is pertinent to mention here that the plaintiff has not produced even a single witness to substantiate the pleadings or the issues. Now the question arises whether in the absence of any evidence, can the pleadings be the basis for deciding the suit. The guiding principles in this context were laid down by the Hon'ble Supreme Court of India in UP State Electricity Board & Anr. vs. Aziz Ahmad I (2009) SLT 587. The relevant para i.e. Para17 is quoted here for the sake of clarity: "Pleadings are required to be proved and so long evidence is not led in support of the pleadings no reliance can be placed only on the pleadings without there being any cogent evidence in support of the pleadings. Pleadings are required to be proved by leading evidence.".
This court also deems it fit to quote here the observations made by Hon'ble Supreme Court of India in Rajasthan State TPT. Corpn. & Anr. Vs Suit No.10859/16 Page6/10 7 Bajrang Lal III (2014) SLT 220 wherein in para 12 and 13 , the guiding principles were provided. The relevant paras are quoted here for the sake of clarity: "It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors., AIR 1998 SC 1608;
National Building Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani & Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India & Ors., AIR 2001 SC 1237; and State of U.P. v. Chandra Prakash Pandey, AIR 2001 SC 1298.) In M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC 1684, this Court observed as under: The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law. (See also: Vithal N. Shetti & Anr. v. Prakash N. Rudrakar & Ors., (2003) 1 SCC 18; Devasahayam (Dead) by L.Rs. v. P. Savithramma & Ors., (2005) 7 SCC 653; Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252, Rajasthan Pradesh V.S. Sardarshahar & Anr. v. Union of India & Ors., AIR 2010 SC 2221; Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823; and Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148)".
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This court also found guiding principles in the judgment pronounced by the Hon'ble High Court of Delhi in the case of Prem Nath Chopra deceased Through LRs vs Arun Chopra & Ors. 209 (2014) DLT 144 (DB) wherein it was observed by the Hon'ble High Court of Delhi that if no evidence is given by the parties on whom burden is cast, issue must be found against him. The relevant para is quoted here as under for the sake of clarity: "The strict meaning of the term 'onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him".
The court also deems it fit to quote here the observations made by the Hon'ble High Court of Delhi in Sahana Pal vs. U. K Samanta 222 (2015) DLT 81 wherein it was observed by the Hon'ble High Court of Delhi that the pleadings unless admitted cannot be the basis of deciding the suit or the case. The relevant para is quoted here as under for the sake of clarity: "In any event, a pleading is not evidence, and cases are required to be decided on the basis of evidence. The Court cannot proceed on the basis of a mere pleading, unless the same is admitted, and if disputed, is substantiated by acceptable evidence. Since the defence of the respondent had been struck off, the learned ADJ ought not to have looked into the same while rendering the impugned judgment.".(underline added) From the above quoted principles as laid down by the Hon'ble Apex Court and Hon'ble Delhi High Court, it is clear that if no evidence has been adduced by the parties to substantiate the pleadings then issues have to be decided against the party on whom burden of proof was cast.
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As this court has proceeded under Order 17 Rule 3(a) CPC in the present case, it is deemed appropriate to quote the certain observations of Hon'ble High Court of Delhi, in the case of Naresh Chand Gupta v/s Braham Prakash and Another, (2007) 97 DRJ 193, whereby the Hon'ble High Court discussed the law under Order 17 Rule 3. The court observed thus:
"9. We may at this stage also refer to Rule 3 of Order XVII which deals with situations where a party to a 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 for the further progress of the suit. In the event of any such default, the Rule provides for two different approaches to be adopted depending upon whether the parties are present or absent. If the parties are present, the court can proceed to decide the suit forthwith but if the parties or anyone of them is absent the can only resort to Order XVII Rule 2 CPC, which, as noticed earlier, deals with situations where the parties or anyone of them is absent. A conjoint reading of the two Rules, therefore, leaves no manner of doubt that the consequences flowing from the nonappearance of the parties are different from those flowing from defaults committed by the parties, who are present at the hearing.
10. In the instant case, the parties were present through their authorised agents on all relevant dates of hearing including the date when the evidence of the plaintiff was closed. They were also present on the date when the matter was reserved for orders and the judgment eventually pronounced. It is not, therefore, a case whether Order XVII Rule 2 CPC could be invoked by the court as argued by learned Counsel for the appellants. It was clearly a case where the plaintiffs had failed to adduce his evidence and committed a default warranting action in terms of Order XVII Rule 3 which, as noticed earlier, permitted the court to proceed to decide the suit forthwith. Any such decision was bound to be a decision on the merits of the issues that were framed and not Suit No.10859/16 Page9/10 10 just an order of dismissal for default as suggested by the learned Counsel."
Coming to the factual matrix of the present suit, no evidence has been adduced the plaintiff to prove issue no. 1, accordingly issue no.1 is decided against the plaintiff and in favour of the defendant. Further, as Order 17 Rule 3(a), contemplates immediate passing of judgment, the DE of the defendants was closed without giving them an opportunity to lead DE. Accordingly no findings are given on Issues No. 2 to 6.
RELIEF
7. In view of my findings on issue No.1, suit of the plaintiff is hereby disposed of as dismissed. No order as to cost. Applications, if any, which are pending in the present judicial file and have not been pressed for by the parties are also disposed of as dismissed as not pressed.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities. DEEPAK Digitally signed by DEEPAK VATS VATS Date: 2019.01.24 16:38:07 +0530 (DEEPAK VATS) Civil Judge (West)2, Delhi Pronounced in the open court on 21/01/2019.
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