Delhi District Court
Sh. Kedar Nath Yadav vs The Commissioner Of Police on 26 September, 2014
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRA) 11, DELHI
Suit No. 184/12
Unique ID No. 02401C0105952010
Sh. Kedar Nath Yadav
S/o Sh. Ram Nath Yadav
G-22/223, Sector-7
Rohini, Delhi .....Plaintiff
vs.
1. The Commissioner of Police
Delhi Police, Police Head Quarter,
I.P. Estate, New Delhi
2. Inspector Balbir Singh
Ex. S.H.O, P.S - Model Town
Posted in April 1994
3 ASI Randhir Singh
Previously posted in P.S Model Town
in April 1994, I.O. of Kalandra
DD No. 18A/9A
P.S Model Town
4 S.I. S.K. Drall
Previously posted in
In P.S - Model Town
I.O. of Kalandra
DD No. 16A/97, P.S Model Town
5 S.I Rajesh Kumar
Previously posted in
In P.S- Model Town
I.O of Kalandra
DD No. 16A/99
P.S Model Town .....Defendants
Date of Institution of Suit : 16.03.2010
Date when reserved for orders : 09.09.2014
Date of Decision : 26.09.2014
JUDGMENT
1 Vide this judgment I shall decide the suit for damages/compensation of Rs. 15 lacs for malicious prosecution, filed by the plaintiff against the defendants. The brief fact necessitated in filing the present suit are given as under-:
Suit no. 184/12 Page 1/162 That plaintiff was having Jhuggi at A- Block, Derawal Nagar, G.T.K Road, Delhi from prior to 1980 and was doing a business of building material. He was also working as social worker in 1993-94. In Delhi Assembly Election, he supported Sh. Charti Lal Goyal who was the candidate of BJP while Sh. Karan Singh had contested the said election against Mr. Charti Lal Goyal as all Congress Candidate.
3 The defendant no. 2 is the brother of Sh. Karan Singh who was posted as SHO, P.S. Model Town. The defendant no. 2 wanted to provide illegal help to the Congress candidate. Due to open support of the plaintiff to Sh. Charti Lal Goyal won the said election. The defendant no. 2 became enemy of the plaintiff due to that reason. He apprehended the plaintiff on 04.04.1994 alongwith his motor cycle which was booked under Section 103 D.P. Act and plaintiff was booked in Kalandra under Section 100 D.P. Act vide DD No. 18A/94 by defendant no. 3 under the instruction of defendant no. 2. The defendant no. 3 took personal search of the plaintiff and Rs. 3800/-, one golden ring, one pocket diary, one Citizen wrist watch were taken from his possession. Those articles, however were not shown in his personal search memo. The plaintiff filed an application for release of personal search article before the concerned M.M wherein it was reported that nothing was recovered from the personal search of the accused.
4 It is further averred that defendant no. 1 & 2 did not release the plaintiff in the said Kalendra despite bailable offence. The defendant no. 3 detained the plaintiff for whole night and he was released on bail on next day. The plaintiff made complaint to the higher authorities against the conduct of defendant no. 2 & 3 but of no use. After the transfer of defendant no. 2 his subordinate officials who was working under him took personal interest and implicated the plaintiff in false Kalandras of same nature i.e 16A/97 and 16A/99 at the interval of two-three years. The said implication of the plaintiff was at the instance of defendant no. 2 by defendant no. 3, 4 & 5. The plaintiff contested the said Kalandra for more Suit no. 184/12 Page 2/16 than 15 years and finally acquitted by the court of Sh. Neeraj Gaur, Ld. M.M on 16.03.2009 in all the three cases.
5 The further plea of the plaintiff is that he has good reputation in the society. He also contested the election of Counsellor of M.C.D from Rana Pratap Constituency but he has suffered in the hands of defendant no. 2 to 5 and has been maliciously prosecuted at the instance of defendant no. 2 to 5. He appeared as a accused for more than 15 years without any fault due to the illegal act of defendant no. 2 to 5 therefore, he is entitled for damages to the tune of Rs. 15 lacs for malicious prosecution. On the basis of aforesaid fact, present suit has been filed for adjudication.
6 Pursuant to the summons defendants appeared and filed their written statement taking preliminary objection that plaintiff has not approached the court with clean hands. That suit is liable to be dismissed for want of notice under Section 80 of CPC. That plaintiff has no cause of action for filing the present suit. Suit is barred under Section 140 of the Delhi Police Act.
7 On merit it is averred that a Kalendra under Section 100 of Delhi Police Act was filed against the plaintiff on 04.04.1994 by ASI Randhir Singh. While he was on patrolling duty, he found that behind the Police Booth plaintiff had accumulated building material in DDA Park and was selling the same. He asked the plaintiff to remove the material but plaintiff continue to sell the material and in order to save government land, defendants initiate action against the plaintiff in colour of their duties. It is denied that defendant No. 3 took personal search of the plaintiff and Rs. 3800/-, one Golden Ring, One Pocket Dairy and Wrist watch was taken out from the possession of the plaintiff. It is also denied that defendant apprehended the plaintiff on 04.04.1994 in order to take revenge at the instance of Karan Singh. It is also denied that defendant no. 1 & 2 have violated the fundamental rights of the plaintiff. It is stated that plaintiff is a land grabber. He was also arrested in FIR No. 701/07 under Section Suit no. 184/12 Page 3/16 448/34 IPC. All other averments have been denied. It is prayed that suit be dismissed with exemplary cost.
8 The plaintiff has filed replication to the written statement thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
9 On the basis of the pleadings of the parties vide order dated 18.09.2012 the following issues were framed for adjudication: -
1. Whether the plaintiff is entitled for damages/compensation of Rs.15,00,000/- against the defendant for the malicious prosecution? OPP
2. Whether the suit is hit by Section 140 of Delhi Police Act?
OPD
3. Whether the plaintiff has not served the notice under Section 80 CPC upon the defendant before filing the present suit? OPD
4. Relief 10 In order to prove his case the plaintiff has examined himself as PW-1 and reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the copy of complaint to the Chief Minister dated 23.03.2009 as Ex. PW-1/C, certified copy of telegraphic massage as Ex.
PW-1/C1, Certified copy of Kalendra Ex. PW-1/D11, Order of Jama Talashi is Ex. PW-1/E, A.D care Ex. PW-1/F, Kalendra is Ex. PW-1/H1 & H2, Judgment passed by ld, Magistrate as Ex. PW-1/1 to Ex. PW-1/3, Notice is Ex. PW-1/J, Postal receipts and registered letter as Ex. PW-1/K1 to K5, receipt of UPC as Ex. KPW-1/L, envelope as Ex. PW-1/M-1 to M-3. PW-1 has been throughly cross-examined by ld. counsel for the defendant.
11 Plaintiff has also examined Sh. Mukesh Juneja, UDC, Record Room, Rohini who brought the record. He has also examined Sh. Manpal Singh as PW-3. Both these witnesses also cross-examined by ld. counsel for the defendants.
Suit no. 184/12 Page 4/1612 In order to answer the claim of the plaintiff, defendant no. 2 examined himself as DW-1 who reiterated the averment made in the written statement in his examination in chief. The defendant no. 5 examined himself as DW-2 who also reiterated the averment made in the written statement in his examination in chief. Defendants have also examined Sh. Jaiveer Singh, Mauza Clerk as DW-3, defendant no. 4 as DW-4 who also reiterated the averment made in the written statement in his examination in chief. All these witnesses have been throughly cross- examined by ld. counsel for the plaintiff.
13 I have heard ld. counsel for the parties and perused the pleadings, evidence and other material placed on record. My issuewise findings is as under:-
14 ISSUE No. 1. Whether the plaintiff is entitled for damages/compensation of Rs. 15,00,000/-
against the defendant for the malicious prosecution? OPD Plaintiff has taken a plea that defendants have falsely and maliciously involved him in a Kalendra under Section 100 of D.P. Act Ex. PW-1/D11, PW-1/H1 and H2. The plea of the plaintiff is that defendant no. 2, who was posted as SHO, P.S. Model Town is the bother of Sh. Karan Singh, he wanted to provide illegal help to Sh. Karan Singh who was the congress candidate in the Delhi Assembly Election. The plaintiff did not support his brother due to which defendant no. 2 apprehended the plaintiff on 04,04.1994 and he was booked under Section 100 of D.P. Act vide D.D No. 18A/94 by defendant no. 3 on the instruction of defendant no. 2. The defendant no. 3 took personal search of the plaintiff and recovered Rs. 3,800/-, one golden ring, one pocket diary, one citizen wrist watch but those articles were not shown in his personal search memo. Defendant no. 1 & 2 did not release the plaintiff in the said Kalendra despite being bailable offence.
15 The further plea of the plaintiff is that subordinate officer of defendant no. 2 implicated him in two similar false Kalendra at the Suit no. 184/12 Page 5/16 intervention of two-three years and the said implication was at the instance of defendant no. 2. The plaintiff contested all those Kalendras for more 15 years and finally has been acquitted by the court of Sh. Neeraj Garg, ld. M.M. On 16.03.1999. As per the plaintiff he was maliciously prosecuted by defendants, therefore, he is entitled for damages to the tune of Rs. 15 lacs.
16 The defendants have taken a plea that they were posted as Police official in P.S., Model Town during the relevant time. On 04.04.1994, a Kalendra under Section 100 of D.P Act was filed against the plaintiff by defendant no. 3 who was on patrolling duty and found that plaintiff had accumulated building material in DDA Park and was selling the same. He asked the plaintiff to remove the material but he continue to sell the material and in order to save government land defendants booked the plaintiff in colour of their duties. As per the defendants they performed their duty as per the law and not prosecuted the plaintiff maliciously, therefore, they are not liable to pay any damages.
17 In order to substantiate their plea both the parties have led their respective evidence.
18 An examination of the pleading and evidence led on record shows that grievance of the plaintiff is that defendants had registered three Kalendras under Section 100 of D.P Act Ex. PW-1/D1, Ex. PW-1/H1 & H2 against him. As per the plaintiff all these Kalendras were registered at the behest of defendant no. 2 who happen to be the brother of Sh. Karan Singh who was a Congress Candidate at the Assembly Election. He has been maliciously prosecuted by defendant with the intention to malign his reputation, therefore, defendants are liable to pay damages.
19 On the other hand, case of the defendants is that they were posted as police officials in P.S. Model Town during the relevant period. The defendant no. 3 who was on patrolling duty on 04.04.1994 found the Suit no. 184/12 Page 6/16 plaintiff who accumulated building material in DDA park and selling the same. He stopped him but plaintiff did not stopped, therefore, a Kalendra under Section 100 of D.P. Act was registered against the plaintiff. As per the defendants they acted fairly and in colour of their official duty and not maliciously and they are not liable to pay any damages.
20 Malicious in its legal sense means such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. Malicious prosecution is a prosecution of some charges of crime which is willful or reckless. In malicious prosecution there are two essential element namely that no probable cause exists for instituting the prosecution or such prosecution terminated in favour of the plaintiffs.
21 The plaintiffs must prove to succeed in an action of damages for malicious prosecution that : (1) the defendants filed criminal case against the plaintiff before the competent court, (2) that the said criminal case complained of was terminated in favour of the plaintiffs, (3) that the defendant instituted or carried on such proceedings maliciously and (4) that there was an absence of reasonable and probable cause of such proceedings and (5) that plaintiff has suffered damages.
22 The onus of proving all the above conditions is upon the plaintiff. The principle to be borne in mind in the case of cause of action for malicious prosecution are that malice is not merely doing a wrongful act intentionally but it must be established that the defendants actuated by manis animus i.e. to say by ill will or indirect or improper motive but if the defendant had reasonable or probably cause of launching criminal prosecution, no amount of malice till date is liable for damages.
23 The plaintiff has filed the case for malicious prosecution on the ground that defendants being the police officials had registered Kalendra under Section 100 of Cr.P.C Ex, PW-1/D1, H1 & H2 in improper manner at Suit no. 184/12 Page 7/16 the behest of defendant no. 2 who wanted to help Sh. Karan Singh, the Congress Candidate in Assembly Eletion of Delhi and have thus maliciously prosecuted the plaintiff in which he was ultimately acquitted.
24 A perusal of the pleading and evidence placed on record shows that plaintiff has taken a plea that defendant no. 2 is the brother of Sh. Karan Singh, Congress Candidate of Assembly Election in Delhi. The defendant no. 2 wanted to help his brother but plaintiff did not fulfill his desire and the Congress Candidate was defeated due to which defendant no. 2 become enemy and in order to take revenge he apprehended the plaintiff on 4.4.1994 and registered kalendra under Section 100 of Cr.P.C Act. The defendants have controverted the said plea in the written statement.
25 Plaintiff is required to prove on record that defendant no. 2 is the brother of Sh. Karan Singh. He also required to prove that defendant no. 2 wanted the plaintiff to provide help to his brother in Delhi Assembly Election but plaintiff did not accede the said request and due to which Sh. Karan Singh defeated in the election and in order to take revenge of the said defeat defendant no. 2 implicated the plaintiff in Kalendras under
Section 100 of Cr.P.C. The plaintiff besides making oral averment in the plaint as well as in his testimony, has not placed any material whatsoever on record which may show or suggest that defendant no. 2 is the brother of Sh. Karan Singh and was in association with Sh. Karan Singh and provided any help to him in Delhi election.
26 Defendant no. 2 has examined himself as DW-1. During cross- examination DW-1 deposed that he knows Karan Singh, who was leader of Congress party in the area. He denied that Karan Singh is his cousin. He volunteered that he has no relation with Karan Singh. He also denied that he had taken action against the plaintiff because he had not supported Karan Singh in his election in the year 1993. He volunteered that he was posted in P.S Model Town, after the election. He denied that he personally called the plaintiff to support Sh. Karan Singh in his election.
Suit no. 184/12 Page 8/16He also denied that Kalendra dated 4.4.1994 was prepared falsely against the plaintiff.
27 The defendant no. 2 has categorically denied having any relation with Sh. Karan Singh. The plaintiff has alleged in the plaint that defendant no. 2 is the brother of Karan Singh in whose instance Kalandra Ex. PW-1/D1, H1 & H2 were registered against him. The plaintiff, however, has failed to substantiate his above plea by leading any evidence on record. In the absence of any evidence in this regard, I am of the considered view that plaintiff has failed to substantiate his plea that defendant no. 2 is the brother of Sh. Karan Singh. He has also failed to prove on record that defendant no. 2 implicated the plaintiff in Kalendra Ex. PW-1/D1 in order to take revenge of the defeat of Sh. Karan Singh who was the congress candidate in Delhi Assembly Election.
28 The plaintiff has further taken a plea that defendant no. 3 took his personal search and Rs. 3800/-, one gold ring, one pocket diary, one wrist watch was taken out from his possession but same was not shown in his personal search memo. The defendants have controverted the said plea in the corresponding para of the written statement.
29 The plaintiff claimed that defendant no. 3 recovered Rs.3800/-, one gold ring, one pocket diary, one wrist watch from his possession but these articles were not shown in his personal search memo. In such circumstances, the plaintiff was required to make complaint about the said fact before the ld. M.M. where the said Kalendra was filed by the police. The plaintiff, however, did not make any such complaint before the ld. M.M. If the said amount and article were taken by defendant no. 3 from the possession of the plaintiff and not shown in his personal search, it was incumbent for the plaintiff to put forth his grievance before the concerned court then and there but he has not made any such endeavour. The said fact itself shows that those articles were not recovered from the plaintiff otherwise he would have taken recourse before the ld. M.M where Kalendra under Section 100 of D.P. Act was filed.
Suit no. 184/12 Page 9/1630 Ld. counsel for the plaintiff contended that court of ld. M.M. Directed the police to release the Jama Talashi to the plaintiff but despite the order passed by the court, the police did not release the article. Ex. PW-1/E is the application filed by the plaintiff before the ld. M.M for release of Jama Talashi on 26.04.1994. On the said application direction was given by the ld. M.M to release the article as per law. Defendant no. 3 had taken out Rs. 3800/- as well as other articles from the possession of the plaintiff in his personal search and those articles were not shown in his personal search memo nor returned to him despite the court order, then it was incumbent upon the plaintiff to make complaint before the ld. M.M who passed the order on 27.04.1994. But the plaintiff did not file any such complaint before the ld. M.M. apprising him about non-release of Jama Talashi. In the absence of any such action being done by the plaintiff, I am of the considered view that allegations levelled by the plaintiff in the instant case that defendant no. 3 recovered Rs. 3800/- one gold ring, one pocket diary and one citizen wrist watch did not return him despite direction of the court is after thought and without any basis.
31 The plaintiff has filed a suit for malicious prosecution against defendants on the ground that they registered Kalendra under Section 100 D. P. Act against him in which he was finally acquitted vide order dated 16.03.2009 Ex. PW-1/P1 to PW-1/P3. The ground on the basis of those Kalandras were registered was that plaintiff was trying to encroach upon government land. The plaintiff has deposed in para 3 of his examination in chief that he was having Jhuggi at A Block, Derawal Nagar, GTK Road Delhi prior to 1980 and was doing a business of building material and surviving his own and his family from the said earnings.
32 The plaintiff in his cross-examination admitted that on 04.04.1994 his building material was lying in DDA Park surrounded by jhuggies. He also admitted that a Kalendra dated 04.04.1994 Ex. PW-1/D1 was registered against him. The above testimony of plaintiff itself shows that he was in possession of DDA land and was selling building material on Suit no. 184/12 Page 10/16 04.04.1994. The defendant no. 3 who was the police officer, posted in P.S Model Town was on patrolling duty on 04.04.1994 and found plaintiff selling building material accumulated in the DDA Park. Being the police officer it was his duty to protect the government land and not allow any person to tress pass over the government land unauthorizedly. The defendant no. 3 thus duty bound to stop the plaintiff from unauthorizedly selling building material in the DDA Park. The plaintiff did not stop doing the same, therefore, defendant no. 3 has left with no other option but to take appropriate legal action against the plaintiff.
33 The plaintiff has claimed that he was in possession of the said land prior to 1980 and was selling building material over the said land since then. However, he has not placed any material whatsoever to substantiate his above plea that he was in possession of the land since prior to 1980 and was not trying to encroached upon the DDA land.
34 The defendant no. 3 being the police officer during the relevant time when plaintiff had accumulated building material over there. Being the police officer posted in P.S. Model Town, defendant no. 3 reached at the spot and started investigation and asked the plaintiff to remove the material but plaintiff did not stop due to which defendant no. 3 registered a Kalendra under Section 100 of D.P.Act within the ambit of his duty which he was bound to carry out. The police officials are required to carry out investigation and to perform their duty as per the law. The plaintiff has failed to prove on record that defendants acted against him maliciously without any reasonable and probable cause.
35 In view of the above facts and circumstances, I am of the considered view that plaintiff has failed to prove that defendants have ill will, malafide intention against the plaintiff and on that basis, they prosecuted him in false Kalendra under Section 100 of D.P. Act Ex. PW-1/D1, H1 and H2. The plaintiff has also failed to prove on record that defendants prosecuted him maliciously or without any reason. The plaintiff Suit no. 184/12 Page 11/16 has thus failed to discharge the onus of issue no. 1, same is accordingly decided against the plaintiff.
36 ISSUE NO. 2 Whether the suit is hit by Section 140 of Delhi Police Act? OPD Defendants have taken a plea that suit is hit by Section 140 of D.P. Act. The plaintiff has controverted the said plea and pleaded that in civil proceedings Section 140 of D.P Act is not applicable.
37 The defendants were posted as police officers at the relevant time in P.S. Model Town. Section 140 (1) of Delhi Police Act 1978 prescribe limitation for initiating proceeding against police officer which reads as under:-
Section 140. Bar to suits and prosecution:--- (1) In any case of alleged offence by a police officer or other persons, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if it is instituted, more than three months after the date of the act complained of. Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
38 The plaintiff has filed the present suit for malicious prosecution against the defendants on the ground that defendants prosecuted him in Kalendras under Section 100 D.P. Act Ex. PW-1/D1, H1 and H2 at the behest of defendant no. 2 and ultimately plaintiff was acquitted by the Suit no. 184/12 Page 12/16 competent court of jurisdiction in those cases, therefore, plaintiff is entitled to recover compensation from the defendants. The plaintiff was acquitted in three Kalendras vide judgment Ex. 16.03.2009 Ex. PW-1/P1 to P3.
39 As per Article 74 of the Limitation Act, a suit for malicious prosecution can be filed within one year from that date of termination of prosecution. The plaintiff was acquitted vide judgment dated 16.03.2009 vide Ex. PW-1/P1 to P3, thus the present suit could have been filed by the plaintiff within one year from that date i.e. upto 16.03.2010. The plaintiff has filed the present suit on 16.03.2010 itself i.e within the period of one year from the date of his acquittal.
40 As per Section 140 (1) of Delhi Police Act, no action against the police officer can be entertain by the court, if such suit is instituted after more than three months after the date of act complain of. The question which needs to be examined in this case is whether the present case shall be governed by Article 74 of Limitation or by Section 140 (1) of Delhi Police Act, 1972.
41 The Delhi Police Act has been enacted for the purpose of amending and consolidating the law relating to regulation of police in the union territory of Delhi. The Act is a special enactment. Section 140 of the Act imposes certain limitations in the matter of institution of suit and prosecution against the police officers in respect of acts done by a police officer under the colour of their duty or authority. One such limitation is that such suit or prosecution shall not be entertained and if entertained shall be dismissed if it is instituted after more than three month from the date of the Act complained of.
42 The Hon'ble Supreme Court of India in Prof. Sumer Chand Vs. Union of India reported as AIR 1993 Supreme Court 2579 has held that:-
"Where a suit for malicious prosecution against two Suit no. 184/12 Page 13/16 police officers alleging that one police officer was incharge of police post had registered a false, vexatious and malicious report against a person and another officer who was Station House Officer had filed the challan in the Court against him and other accused on the basis of the said report was filed after the expiry of three months from acts complained of, it was barred by limitation. The act thus alleged were done under the colour of office of the said officers and would fall within the ambit of Section 140(1) of Delhi Police Act because it was the duty of the said first officer being incharge to Police Post to record the report and so also it was the duty of the another officer to file the challan in the court. The acts complained of were therefore, done under the colour of office of the said officers and fell within the ambit of Section 140(1) of the act. In such a case, the period of limitation for institution of the suit would be that prescribed in Section 140 and not the period prescribed in Article 74 of the Limitation Act. The Limitation Act is an enactment which consolidates and amends the law for the limitation of suits and other proceedings connected therewith. It is a law which applies generally to all suits and proceedings. It is, therefore, in the nature of general enactment governing the law of limitation. The Delhi Police Act has been enacted for the purpose of amending and consolidating the law relating to regulation of police in the Union Territory of Delhi. The Act is a special enactment in respect of matters referred to therein. Section 140 of the Act imposes certain restrictions and limitations in the matter of institution of the suit and prosecutions against police officers in respect of acts done by police officer colour of duty or authority or in excess of such duty or authority. Since the Act is a Suit no. 184/12 Page 14/16 special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for suits against persons governed by the Act in relation to matters covered by Section 140, by virtue of Section 29(2) of the Limitation Act, the period of limitation prescribed by Section 140 of the Act would be the period of limitation prescribed for such suits and not the period prescribed in the Schedule to the Limitation Act"
43 In the instant case defendants were posted as police officer in P.S., Model Town. Defendant no. 3 was on patrolling duty and saw that plaintiff accumulated building material in DDA Park. He asked the plaintiff to removed the said building material but he failed to do so and in order to save the government land defendant no. 3 registered a Kalendra under Section 100 D.P. Act. Similar Kalendra was registered against the plaintiff under Section 100 of D.P Act Ex. PW-1/H1 & H2 and plaintiff has been ultimately acquitted by the court holding that prosecution has failed to prove the guilt of the accused. The act of the defendant complaint by the plaintiff was done by them in performance of their duty, therefore, the act complaint against defendants squarely comes under Section 140 (1) of D.P. Act of 1978 and suit for maliciously prosecution against the defendant should have been filed within a period of three months from the date of act complained. The instant suit, however, has been filed after the expiry of three months period from the date of acquittal of the plaintiff, same is thus barred by limitation.
44 In view of the above facts and circumstances, I am of the considered view that the suit filed by the plaintiff against the defendants is barred by limitation. The suit is thus hit by Section 140 (1) of D.P. Act. Defendants have thus successfully discharged the onus of issue no. 2, same is accordingly decided in favour of the defendants.
Suit no. 184/12 Page 15/1645 ISSUE NO. 3 Whether the plaintiff has not served the notice under Section 80 CPC upon the defendant before filing the present suit?
OPD Defendants have taken a plea that plaintiff has not served notice before filing the suit as provided under Section 80 CPC. The plaintiff has controverted the said plea in the corresponding para of his replication.
46 In order to substantiate the above plea, plaintiff has examined himself as PW-1 and reiterated the fact regarding service of notice in compliance of Section 80 in para 11 of his examination in chief. He has also exhibited the notice and postal receipt as Ex. PW-1/J , K-1 to K-5 and Ex. PW-1/L. The defendants have not controverted the above testimony of PW-1 made by him in para 11 of his examination in chief, thus, defendants deem to have admitted that plaintiff has served legal notice upon them in compliance of statutory provision before filing the present suit.
47 In view of the above facts and circumstances, I am of the considered view that plaintiff has served notice as required under Section 80 CPC upon the defendants before filing the present suit. Defendants have failed to discharge the onus of issue no. 3, same is accordingly decided against the defendants.
48 RELIEF In view of my above, the suit filed by the plaintiff against the defendants is dismissed. No order of cost. Decree Sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( PITAMBER DUTT)
on 26th September, 2014 Additional District Judge
Delhi
Suit no. 184/12 Page 16/16
Suit No. 184/12
26.09.2014
Present; None
Vide separate judgment dictated and announced in the open court, the suit of the Plaintiff against the defendants is dismissed. No order of cost. Decree sheet be accordingly prepared. File be consigned to record room after due compliance.
( PITAMBER DUTT) ADJ; DELHI 26.09.2014 Suit no. 184/12 Page 17/16 Suit no. 184/12 Page 18/16