Delhi District Court
Vide This Order vs B. D on 10 January, 2020
In the Court of Shri Dhirendra Rana : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
CS No. 93137/16
In the matter of:-
M/s. L.M.G Colonisers & Traders Pvt. Ltd.,
4/5-B, Asaf Ali Road, New Delhi
......Plaintif
VERSUS
Municipal Corporation of Delhi,
through the Commissioner,
Town Hall, Chandni Chowk, Delhi
......Defendants
Date of Institution : 16.05.1988
Reserved for Judgment : 24.12.2019
Date of Decision : 10.01.2020
Suit for Possession
JUDGMENT
1. Vide this order, I shall dispose off this suit filed by M/s. LMG Colonisers and Traders Pvt. Ltd. (hereinafter referred as 'plaintiff') against Municipal Corporation of Delhi (hereinafter referred as 'defendant') for possession of a plot measuring 7000 sq. yds. situated in Triloki colony Kotla Mubarak Pur, New Delhi (hereinafter referred as suit property).
Plaintif's Case
2. The plaintiff is a Private Limited Company having previously its registered office at 4/5-B, Asaf ali Road, New Delhi and now at 278, CS No. 93137/2016 Page no. 1 / 22 Masjid Moth, New Delhi. Late Sh. Prem Raj was the Managing Director of the company and he was authorised to file the suit vide resolution No. 2 passed on 02.05.1988. This suit was originally filed by Sh. Prem Raj but now Sh. Dinesh Sharma has stepped into the shoes of plaintiff as Director of the plaintiff's company. It is stated that the layout plan of Triloki colony was approved by the erstwhile Delhi Improvement Trust in April 1955. Vide resolution No. 919 dated 21.12.1960 the plan was modified and approved by the MCD with concurrence with the Standing Committee. It is stated in the plaint that sometime prior to the passing of resolution No. 919 dated 21.12.1960, the defendant started a school in a portion of the land of the said colony without the consent and approval of the plaintiff. As the plaintiff wanted to start the development of the colony, it was necessary to remove the tents fixed by the defendant. So, plaintiff requested the defendant vide letter dated 05.07.1961 to remove the tents and hand over the possession of the site to the plaintiff. On receipt of the said letter, defendant agreed to vacate the said land and shift the school to the land earmarked for school purpose in the revised lay out plan approved on 21.12.1960. The area of the plot meant for the school was 7000 sq. yds. Defendant agreed to vacate the said land but requested the plaintiff vide letter dated 15.11.1961 to allow it to use the land meant for school purpose temporarily at a nominal rent of Re. 1 per month till the defendant purchases the said site and the rent will be paid from the date of occupation of the new site. Plaintiff vide its letter dated 16.11.1961 agreed to the said request with the condition that in case defendant failed to purchase the land the defendant will vacate the land in dispute by the end of the session i.e., March 1962. In the end of November 1961 defendant shifted the school in the disputed premises and vacated the land which was previously in their possession. It is stated that the defendant occupied the suit property as a tenant at a CS No. 93137/2016 Page no. 2 / 22 monthly rent of Re.1/-. Defendant was running its school shown as marked red in the site plan and has also constructed a boundary wall over that portion. Since the defendant failed to purchase the land in dispute, it has acquired no right or title in the said land and continues to the tenant of the plaintiff in the said land. The tenancy was terminated vide notice dated 29.10.1983 which was received by the defendant on 11.11.1983 and it was requested on behalf of the defendant to hand over the said land to the plaintiff by 31.12.1983. Despite repeated requests made by plaintiff, defendant failed to vacate the land and hand over its possession. Plaintiff has prayed a decree for possession against the defendant with regard to suit property.
Defendants' case
3. Initially written statement was filed on behalf of defendant on 24.10.1989 but an amended WS was filed on 02.08.2007. Therefore, the court is concerned with amended written statement and not with the initial one. It is stated in the WS that present suit is time barred and plaintiff no locus standi to file the present suit. It is stated that defendant has passed resolution No.110 dated 30.04.1965 vide which area marked as Mark A, B, C, D, E, F and G in the layout plan of Triloki colony was decided to be retained as approved by the Standing Committee and rest of the area of the colony was decided to be utilized for the future development. The area so carved out was decided to be utilized for community services. The school site already existing is the approved plan was to be transferred to the MCD free of charge by the Colonisers. It is further stated that school is being run at the site since 1957 and there is no relation of landlord tenant between the parties as defendant has become owner of the property by virtue of resolution dated 30.04.1965. Defendant denied its liability to pay CS No. 93137/2016 Page no. 3 / 22 any rent to the plaintiff . It is stated that resolution dated 30.04.1965 the alleged letters mentioned by the plaintiff, if any, become redundant and the defendant become owner of the suit property. It is stated that plaintiff has illegally and unauthorizedly transferred land measuring 5600 sq. yds. out of the aforesaid 7000 sq. yds to different persons despite the fact that the plaintiff had no right, title and interest in the aforesaid land. The plaintiff has illegally transferred the piece of land of 180 sq. yds. to one Sh. B. D. Sharma out of the land over which school is in existence. It is submitted at this stage that B. D. Sharma has succeeded for the plot of 180 sq. yds finally decided by Hon'ble High Court in RFA No. 50/2001 in case titled as MCD Vs. B. D. Sharma. It s stated by defendant that all these persons, who have purchased land from the plaintiff, are encroachers and trespassers on municipal land. Defendant denied the fact of termination of tenancy through notice dated 29.10.1983 as same was never in existence.
4. First replication was filed on behalf of plaintiff on 17.02.1990 but after filing of amended WS, second replication was filed on behalf of plaintiff on 08.04.2008 wherein contentions on the lines of plaint are reiterated and it is denied on behalf of plaintiff that defendant has become owner of the land in question by virtue of resolution No. 110 dated 30.04.1965.
5. Vide order dated 04.12.1990, the following issues were framed by my learned Predecessor for trial :
1. Whether the defendant was a tenant in respect of the suit land under the plaintiff? OPP CS No. 93137/2016 Page no. 4 / 22 2 If issue no. 1 is decided in favour of the plaintiff, whether the tenancy of the defendant has been legally terminated as per law? OPD
3. Whether the suit is barred under Section 477/478 of DMC Act?
OPD
4. Whether the suit is barred by limitation? OPD
5. Whether the suit is barred under section 11 CPC? OPD
6. Whether the plaintiff has no locus standi to file the present suit?
OPD
7. Relief.
6. After filing of amended WS, an application under order 14 rule 5 CPC was filed on behalf of defendant for framing of additional issue. On 26.08.2008, an additional issue was also framed which is here as under:
"Whether the suit of the plaintif is not maintainable in view of resolution No. 110 dated 30.04.1965? OPD"
7. After framing of issues on 04.12.1990 the matter was fixed for PE and plaintiff has filed affidavit of evidence of late Sh. Prem Raj, but his examination could not be completed on account of his death. Therefore, his evidence recorded in the court and affidavit can not be read and considered by this court.
Plaintifs evidence
8. Plaintiff has examined Sh. Ved Prakash Aggarwal as PW1 . He was the summoned witness from Post and Telegraph department. He CS No. 93137/2016 Page no. 5 / 22 stated that the summoned recorded had been weeded out and certificate from the Post Master, Supreme Court Post Office is Ex. PW1/1.
9. PW2 was Sh. Prem Raj Sharma as stated earlier his examination could not be complete, therefore, his evidence is of no assistance in this case.
10. PW3 is Sh. V. K. Dua, Planning Assistant Zonal Plan Section, DDA, Vikas Minar. This witness was summoned to produce the layout plan of Triloki Colony and resolution No. 919 dated 21.12.1960 but he stated that same are not traceable in the office and stated that the record may be in possession of MCD i.e., defendant herein.
11. Sh. Dinesh Sharma, has also been examined as PW3 inadvertently. Therefore, in case of any confusion between the deposition of both PW3, their deposition shall be identified by their names and not by their numbers.
12. PW3 Dinesh Sharma tendered his affidavit as Ex.PW3/A, certified copy of judgment dated 16.09.2000 passed in B. D. Sharma Vs. MCD and others as Ex.PW3/1, evidence of B. D. Sharma Vs. MCD as Ex.PW3/2 (colly) and judgment in RFA No. 50/01 dated 02.04.2009 as Ex.PW3/3. He also relied upon documents already exhibited in the evidence of Sh. Prem Raj which were exhibited as Ex.PW2/1 to Ex. PW2/37.
13. PW Shri Prem Raj was examined on 21.02.1995. He was further examined on 15.05.1995 as PW2, but the documents exhibited in his evidence have been exhibited as Ex.PW1/1 to Ex.PW1/6 CS No. 93137/2016 Page no. 6 / 22 whereas it should have been Ex.PW2/1 to Ex.PW2/6. He exhibited following documents as under :
a. Certified copy of Resolution dated 19.12.1960 as Ex.PW1/1. b. Letter written by Shri Prem Raj to defendant dated 05.07.1961 as Ex.PW1/2, its postal receipts as Ex.PW1/3 and Ex.PW1/4 and AD Cards as Ex.PW1/5 and Ex.PW1/6.
c. Ex.PW2/7 is resolution dated 02.05.1988 in favour of Shri Prem Raj.
d. Ex.PW2/8 is copy of letter dated 13.09.1961.
e. Ex.PW2/9 is copy of letter dated 05.03.1962.
f. Ex.PW2/10 is receipt dated 05.03.1962.
g. Ex.PW2/11 is AD card.
h. Ex.PW2/12 is letter dated 03.04.1962.
i. Ex.PW2/13 is letter dated 12.04.1962
j. Ex.PW2/14 is letter dated 04.05.1962.
k. Ex.PW2/15 is postal receipt.
l. Ex.PW2/16 is AD card.
m. Ex.PW2/17 is letter dated 26.05.1962.
n. Ex.PW2/18 is letter dated 02.06.1962 and its postal receipt is
Ex.PW2/19 and AD card is Ex.PW2/20.
o. Ex.PW2/21 is letter dated 17.07.1962.
p. Ex.PW2/22 is letter dated 25.08.1962.
q. Ex.PW2/23 is letter dated 14.09.1962, its postal receipt is
Ex.PW2/24 and AD card is Ex.PW2/25.
r. Ex.PW2/26 is letter dated 28.10.1962, its postal receipt is
Ex.PW2/27 and AD card is Ex.PW2/28.
s. Ex.PW2/29 is letter dated 12.12.1962, its postal receipt are
Ex.PW2/30 and Ex.PW2/31 and AD card are Ex.PW2/32 & Ex.PW2/33.
CS No. 93137/2016 Page no. 7 / 22 t. Ex.PW2/34 is letter dated 18.12.1962. u. Ex.PW2/35 is letter dated 20.03.1963. v. Ex.PW2/36 is revised layout plan of Tirloki colony. w. Ex.PW2/37 is legal notice dated 29.10.1983.
14. In his cross-examination, PW3 Shri Dinesh Sharma stated that he was a director in the company since May-June, 1982. He further stated that he has not placed on record any document issued by ROC indicating his directorship in the plaintiff company. He stated that plaintiff company is claiming tenancy given to the MCD on the basis of letter dated 13.09.1961 and apart from this document, no document has been placed on record to support the case of tenancy. He expressed his ignorance qua payment of rent by the MCD. He stated that negotiations to purchase the land failed somewhere in 1963. He stated that his father might have claimed the rent from the defendant.
He admitted that his father did not file any record when he demanded the rent from the MCD. He admitted that MCD is running the school on the land in question since 1961. He stated that his father came to know about the resolution dated 30.04.1965 during the pendency of case titled as "B.D. Sharma Versus MCD". He admitted that land in question was earmarked for school in the layout plan of Triloki colony. He further stated that plots in the colony were sold from the year 1955 till 1980.
15. PW4 is Sh. B. C. Narula, Assistant Education office (Headquarter), Kashmere Gate. This witness has proved true copy of resolution No. 919 dated 21.12.1960 as Ex. PW4/1. He also exhibited copy of layout plan as Ex.PW4/2.
CS No. 93137/2016 Page no. 8 / 22
16. PW5 is Sh. Viresh Kumar Bagga, Town Planner MCD, Kashmere Gate. He stated that layout plan of Triloki colony has not been received from the office of DDA. He also stated that revised layout plan is also not available in office.
17. PW6 is Sh. J. K. Goel, Clerk, Record Room (Civil), Tis Hazari. He stated that summoned record i.e, case file titled as Leela Ram Vs. Chandi Ram consigned to record room vide Goshwara No. 1420 on 05.01.1972 was burnt in a fire incident occurred on 15-16.03.1996 and endorsement to this effect is Ex. PW6/1.
18. PW7 is Sh. Jagdish Chand Joshi, JJA Delhi High Court. He produced record of suit No. 547/1966 titled as Leela Ram Vs. Prashadi and others containing revised layout plan of Triloki Colony approved by Town Planner MCD vide resolution No. 919 dated 21.12.1960. The layout plan was exhibited as Ex. PW32/35 in Leela Ram Vs. Prashadi & Ors and exhibited as Ex. PW2/36 in the present file.
19. PW Sh. V. P. Bhardwaj Draftsmen Grade-1 office of Town Planner, Kashmere Gate, Delhi. Due to wear and tear in the file it is not clear as what number was given to this PW. He has stated that after resolution No. 919 of the Standing Committee the said area was declared as development area of the DDA. The DDA has notified Trioloki Colony in 1989 but the records have not been transferred by the DDA to the MCD as yet. Hence, the layout plan could not be produced by him.
20. Thereafter, plaintiff evidence was closed on 28.05.2016 and the case was fixed for defendant evidence.
CS No. 93137/2016 Page no. 9 / 22 Defendant Evidence
21. The defendant has examined Shri Kawaljeet Singh, Assistant Director (Education), Central Zone, South DMC as DW1 who in his evidence affidavit Ex.D-1 has stated and reiterated the contents of the written statement. He has relied upon certain documents. Ex.DW1/A is resolution no.110 dated 30.04.1965. Ex.DW1/B is revised layout plan.
22. He stated that he is not aware where the plaintiff was party to the resolution dated 30.04.1965. He admitted that the plaintiff was the owner of the suit property. He further stated that he has not seen any title document in favour of the defendant but in all records he had seen record of resolution dated 30.04.1965. He expressed his unawareness if another portion of school was being run on the land which belong to Shri B.D. Sharma who filed a suit and ultimately possession was handed over to him.
23. DW2 is Shri Parmeshwar Kumar, Record Keeper, Municipal Secretary Office (North), Delhi. He produced resolution book containing resolution no.110 dated 30.04.1965.
24. DW3 is Shri Mahipal Singh, Record Keeper, CTP Office, SDMC, Delhi. He exhibited the police report as Ex.DW3/1 which was lodged by the defendant as original summoned record i.e. the revised layout plan passed through resolution no.110 dated 30.04.1965 was misplaced.
25. DW4 is Shri Jagbir Singh, Proprietor of N.K. Engineers. He produced demarcation report of Bapu Park School land at Village Kotla Mubarakpur dated 01.01.2013 which is Ex.DW4/A (colly) and site plan prepared by him as Ex.DW4/B. CS No. 93137/2016 Page no. 10 / 22
26. DW5 is Shri S. K. Prabhakar, Executive Engineer Civil, SDMC. This witness has been examined by the defendant to lead secondary evidence as original revised layout plan got misplaced by the department. He exhibited his affidavit as Ex.DW5/1. He exhibited photocopy prepared from true copy of layout plan of Triloki colony bearing his signatures and seal dated 02.12.2016 as Ex.DW5/A. In his cross-examination, he stated that he was handed over true copy of Ex.DW5/A on the basis of which he had prepared it as a true copy. He did not produce the copy which was shown to him by the record keeper. He denied the suggestion that Ex.DW5/A was never shown to him and he had attested it to be a true copy at the instance of the defendant.
27. Thereafter, defendant evidence was closed vide order dated 20.12.2017 and the matter was fixed for final arguments.
28. I have heard arguments addressed by Shri Anuroop, ld. counsel for the plaintiff and Shri Mohit Sharma, ld. counsel for the defendant/South DMC. I have also gone through the written arguments placed on record on behalf of both parties.
29. Now I shall give my issue-wise findings.
Issue No. 1 : Whether the defendant was a tenant in respect of the suit land under the plaintiff? OPP Issue No.2 : If issue no. 1 is decided in favour of the plaintiff, whether the tenancy of the defendant has been legally terminated as per law?
OPD CS No. 93137/2016 Page no. 11 / 22
30. Both these issues are interconnected, therefore, both issues are taken up together. It is admitted case of the parties that no formal document was executed between the parties qua the tenancy of the suit property. On one hand, plaintiff is claiming that defendant was a tenant in his property and on the other hand, the defendant has denied that there was any relationship between the parties of such nature. Ld. counsel for the plaintiff has drawn attention of this Court towards letter dated 15.11.1961 (Mark E) written by Shri A.P. Kapila, Assistant Education Officer (PL), MCD, Kashmere Gate, Delhi. This letter was referred to the Managing Director, LMG Colonizers and Traders Pvt. Ltd. It has been argued that the relationship of tenant and landlord stands established by contents of this letter. The relevant portion of the letter reads as under :
"I am directed to say that we are prepared to occupy the plot of land earmarked for school purposes in the layout plan of Kotla Mubarakpur. We shall pay a nominal rent of Rs.1/- per month from the date of occupation. On hearing from you, we shall start negotiations for the purchase of that plot of land and in case negotiations fail we shall shift our school to another plot of land earmarked for school purposes."
31. This letter was replied on behalf of the plaintiff vide letter dated 16.11.1961 sent by Shri Prem Raj Sharma to the Education Officer, MCD and the said letter has been marked as Mark F. The relevant portion of the said letter dated 16.11.1961 reads as under :
"We are prepared to accommodate you to the extent that we allow you to continue the school and seek a nominal rent of Re.1/- per month from the Corporation for the new site for school as provided in the sanctioned layout plan of Triloki Colony."
CS No. 93137/2016 Page no. 12 / 22
32. From the communication quoted above, it is clear that by letter dated 15.11.1961, officer of the defendant conveyed to the plaintiff that defendant is ready to pay rent of Rs.1/- per month for the purpose of running a school on plaintiff's property and that offer was accepted by the plaintiff through its Managing Director vide letter dated 16.11.1961. Although both these letters have not been exhibited and are being marked, but genuineness and authenticity of these documents has not been disputed by either of the parties. In paragraph no.7 of the plaint, it is specifically mentioned that vide letter dated 15.11.1961, defendant requested the plaintiff to use the land meant for school purposes temporarily at a nominal rent of Rs.1/- per month. In first written statement, a vague reply has been given by the defendant which is here as under :
"That para 7 is wrong and denied. It is submitted that the defendant and is not tenant and did not pay any amount of rent to the plaintiff."
33. Defendant was allowed to file a amended written statement, but authenticity of letter dated 15.11.1961 was never questioned on behalf of the defendant. A fact which is admitted need not to be proved by the parties. A specific denial should have been done by the defendant by stating that either letter dated 15.11.1961 is forged or this letter was never written by the Education Officer of the defendant to the plaintiff. Same is the case of letter dated 16.11.1961 which is marked as Mark F which has been mentioned in para no.8 of the plaint and there is no specific denial about genuineness of this letter either in the first written statement or in the amended written statement. So, in absence of any formal rent agreement, these letters are sufficient to establish the fact that there was a tenant-landlord relationship between the parties and this fact has been duly proved by the plaintiff.
CS No. 93137/2016 Page no. 13 / 22 It is also matter of record that vide legal notice dated 29.10.1983 (Ex.PW2/27), tenancy of the defendant was terminated by the plaintiff. It is not the case of the defendant that legal notice was not received by the defendant. Hence, tenancy was terminated by the plaintiff and the plaintiff has successfully discharged its onus with regard to issues no.1 and 2 and accordingly, both these issues are decided in favour of the plaintiff and against the defendant.
Issue no. 3 : Whether the suit is barred under section 477/478 of DMC Act ? OPD
34. The onus to prove this issue was upon the defendant and this plea has been taken throughout by the defendant, but no concrete evidence has been led in this regard. The tenancy was terminated by the plaintiff vide legal notice dated 29.10.1983 (Ex.PW2/37) and the suit was filed on 16.05.1988. As per Section 478 (1) of the DMC Act, no suit can be instituted against the Corporation without two months prior notice. By sending the legal notice, the plaintiff has complied with the requirement of Section 478 (1) of the DMC Act and the suit has been filed on 16.05.1988. Therefore, the defendant has failed to prove this fact as to how the suit is barred under Section 477/478 of the DMC Act. Merely, raising a plea at the time of filing of written statement would not suffice and evidence was to be adduced by the defendant to support its contention. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 4 : Whether the suit is barred by limitation? OPD
35. It is argued on behalf of the defendant that plaintiff has filed a suit for possession, but the same is hopelessly time barred. It is argued by Shri Mohit Sharma, ld. counsel for the defendant that last CS No. 93137/2016 Page no. 14 / 22 communication prior to summoning of legal notice was of 20.03.1963. Thereafter, no communication took place between the parties till 29.10.1983 when the legal notice was sent by the plaintiff. When the plaintiff came to know that defendant was not interested in purchasing the land in question and the plaintiff was not interested to continue the tenancy then the cause of action to file the suit for possession arose in the year 1963 only. As per Article 67 of the Limitation Act, the limitation to file a suit for possession is 12 years and, therefore, the limitation expired in the year 1975 whereas, this suit has been filed in the year 1988. Therefore, the suit is likely to be dismissed on this ground alone.
36. It is correct that there is a long gap of around 20 years between the communication of 20.03.1963 and date of legal notice being 29.10.1983. As discussed above, the defendant was occupying the suit property in the capacity of tenant at a rate of Rs.1/- per month and it is settled law that once a tenant is always a tenant and his status cannot be changed subsequently. The suit of the plaintiff cannot be thrown out of the Court just because the plaintiff took no action for claiming the possession of the suit property for almost 20 years. After the communication of 16.11.1961, the status of the defendant was of tenant only and it remained as a tenant until the tenancy was terminated by the plaintiff vide notice dated 29.10.1983. Therefore, the period of limitation as per Article 67 of the Limitation Act started running from 29.10.1983 and from there, we have to calculate 12 years for the purpose of filing suit for possession. The suit has been filed on 16.05.1988. Hence, in my view, the defendant has failed to discharge its onus as to how this suit for possession is time barred and accordingly, the issue no. 4 is decided in favour of the plaintiff and against the defendant.
CS No. 93137/2016 Page no. 15 / 22 Additional Issue : Whether the suit of the plaintiff is not maintainable in view of the resolution No.110 dated 30.04.1965? OPD
37. This issue was framed on 26.08.2008 as resolution no.110 dated 30.04.1965 was placed on record by the defendant vide which defendant is claiming that it has become owner of the suit property and the plaintiff has no right whatsoever to file the present suit for possession. Resolution no.110 dated 30.04.1965 reads as under :
"The school site already existing in the approved Triloki Colony shall be transferred to Municipal Corporation of Delhi free of charge from the Coloniser."
38. The Standing Committee of the defendant resolved that the school site in question shall be transferred to the defendant free of charge from the Coloniser i.e. the plaintiff. Ld. counsel for the plaintiff, Shri Anuroop argued that MCD can become owner of the property by virtue of Section 197, 198 and 199 of the DMC Act. If these provisions are not followed, then MCD cannot become owner of any land of its own. He further submitted that the resolution says "shall be transferred" meaning thereby the property was to be transferred by the Coloniser and nothing of that sort has been done by the plaintiff in favour of the defendant. It is also matter of record that plaintiff was not the party to that resolution no.110 dated 30.04.1965. Attention of the Court has been drawn towards case titled as "PT. Chet Ram Vashisht Versus Municipal Corporation of Delhi" 1995 AIR SC 430 wherein it has been held as under :
"There is no provision in this chapter or any other provision in the Act which provides that any space reserved for any open space or park shall vest in the Corporation. Even a private street can be declared to be a public on the request of owners of building and then only it vests in the Corporation. In absence of CS No. 93137/2016 Page no. 16 / 22 any provision, therefore, in the Act the open space left for school or park in a private colony cannot vest in the Corporation."
39. Section 197 of the DMC Act says that Corporation shall have power to acquire and hold movable and immovable property. Section 198 of the DMC Act says that the Commissioner shall acquire such property on behalf of the Corporation by agreement as may be approved by the Standing Committee and Section 199 of the DMC Act described the procedure where immovable property cannot be acquired by agreement. Therefore, there is no provision in the DMC Act where immovable property can be owned by the Corporation of its own. Merely passing a resolution qua the suit property without any information given to the plaintiff is not going to serve the purpose. Pt. Chet Ram Vashisht's case (Supra) has also categorically clarified this fact that space meant for park or school cannot be vested in the Corporation. Defendant is claiming itself to be owner on the basis of resolution only whereas the resolution was passed that suit property shall be transferred by the colonisers. Defendant has failed to point out any document vide which suit property was transferred by the plaintiff to the defendant pursuant to resolution no.110. This Court is of the considered view that owner of the suit property is the plaintiff and defendant has not become the owner by virtue of resolution no.110 dated 30.04.1965. Therefore, the plea of the defendant that suit of the plaintiff is not maintainable in the light of resolution no.110 dated 30.04.1965 is not tenable and defendant has miserably failed to discharge the onus to prove this issue in its favour. According, additional issue is decided in favour of the plaintiff and against the defendant.
CS No. 93137/2016 Page no. 17 / 22 Issue no.5 : Whether the suit is barred under section 11 CPC? OPD
40. It is the case of the defendant that out of 7000 square yards earmarked for the school purposes, a plot measuring 180 square yards was sold to one person Shri B.D. Sharma by M/s. Lila Ram & Sons. As the defendant was running a school at the site, Shri B.D. Sharma filed a suit for possession against the defendant herein. The matter went up to the High Court and vide judgment dated 02.04.2009, appeal of the MCD was dismissed. A preliminary objection in the first written statement was taken by the defendant that present suit is barred under Section 11 CPC as Shri B.D. Sharma had already filed a suit against the Corporation bearing no.143/1987.
41. It is a matter of record that LMG Coloniser who is plaintiff herein was not a party to that suit. Shri B.D. Sharma was contesting that suit for a plot of 180 square yards which is not under consideration before this Court. The present suit property is 1366.95 square yards as per the demarcation report (Ex.DW4/A). To apply the principle of res- judicata, subject matter and parties should be the same in a formal suit which has been decided by a competent court. Apart from raising a preliminary objection, no evidence has been led by the defendant as to how suit of the plaintiff is barred under Section 11 of the CPC. Plaintiff herein was not a party in B.D. Sharma's case and the suit property was also different, therefore, this Court is of the considered view that suit of the plaintiff is not barred by virtue of Section 11 of the CPC. Accordingly, the issue no.5 is decided in favour of the plaintiff and against the defendant.
CS No. 93137/2016 Page no. 18 / 22 Issue no.6 : Whether the plaintiff has no locus standi to file the present suit? OPD
42. The onus to prove this issue was upon the defendant. It is argued on behalf of the defendant that this suit was filed initially by Shri Prem Raj who expired during the trial and PW3 Shri Dinesh Sharma has stepped into his shoes in the capacity of Director of the plaintiff company. PW3, Dinesh Sharma has not filed any document to support his status as Director of the plaintiff, therefore, in absence of any document/authorization from the plaintiff company, Dinesh Sharma has no locus standi to claim possession of the suit property.
43. On the other hand, ld. counsel for the plaintiff has relied upon a case titled as "United Bank of India Versus Naresh Kumar" 1996 (6) SCC 660 and "M/s. Sangat Printers Pvt. Ltd. Versus M/s Vimpy Internationala Ltd."RFA No.657/2003 decided by our own High Court on 17.01.2012. He has argued that resolution in favour of Dinesh Sharma is available on record, though not exhibited, which is sufficent enough to prove his locus to pursue the present suit as Director of the plaintiff company.
44. In M/s. Sangat Printers Pvt. Ltd.'s case (Supra), the suit was dismissed by the trial court stating that the plaintiff could not produce the original minutes book during evidence, although resolution in favour of AR was duly proved and exhibited. It was held by Hon'ble High Court that once the resolution was exhibited and no objection was raised by the defendant at the time of exhibition of the resolution, then no benefit can be derived of by the subsequent objection by the defendant. In all humbleness and with utmost regard to the judgment M/s. Sangat Printers Pvt. Ltd. (Supra), the facts of the present CS No. 93137/2016 Page no. 19 / 22 case are somewhat different. In M/s. Sangat Printers Pvt. Ltd.'s case (Supra), resolution passed by the Board of the Directors was duly exhibited which is not the case herein. Merely by putting a board's resolution on record would not suffice and it was the duty of the plaintiff to exhibit of the same during his evidence as PW3. In his cross- examination dated 12.09.2013, PW3 Shri Dinesh stated as under:
"I have been a director in the plaintiff company since about May-June, 1982. I have not filed any document issued by the Registrar of Company indicating my directorship in the plaintiff company. It is wrong to suggest that I have not filed such document as I am not a director in the plaintiff company."
45. At the time of this cross-examination, plaintiff came to know about the inherent defect qua locus standi of Shri Dinesh Sharma in the present suit. That cross-examination took place on 12.09.2013, whereas, the PE was closed on 28.05.2016. After 12.09.2013, plaintiff was supposed to take necessary action to rectify this defect, but nothing of that sort has been done for the reasons best known to the plaintiff.
46. As far as judgment of United Bank of India's case (Supra) is concerned, facts have not been discussed. It is not clear whether the resolution was exhibited or not. Moreover, it was held by Hon'ble Supreme Court that where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. The plaintiff herein is not a public corporation and there is no public interest attached with the affairs of the plaintiff company. Hence, United Bank of India's case (Supra) is also not applicable to the present suit and is not going to help the plaintiff.
CS No. 93137/2016 Page no. 20 / 22
47. In a case titled as "State Bank of Travancore Versus Kingston Computers India Pvt. Ltd. (2011) 11 SCC 524", the trial court dismissed the suit on locus standi, but the judgment was reversed by the High Court and the suit was decreed. The matter went up to the Hon'ble Supreme Court and the order of the High Court was set aside stating that respondent had neither produced any evidence to prove that A was appointed as director of the company nor that there was any resolution by board of directors of respondent company authorizing A to file suit against appellant. It was held that suit filed by a person not duly authorized by a company is not maintainable. In the present case, we have a resolution on record in favour of Dinesh Sharma, but that has not been exhibited. No document is placed on record that name of Dinesh Sharma has been entered as director of the company in the Registrar of Company's record. Therefore, it can be said that there is no resolution proved in favour of Dinesh Sharma and State Bank of Travancore 's case (Supra) is fully applicable to the present set of facts.
48. The present suit is filed for possession for a big piece of land and there is nothing on record that Dinesh Sharma is the director of the company. If he was inducted as a director of the company in the year 1982 as stated by him, then it was expected that document issued from the Registrar of Companies should have been placed on record. The resolution placed on record has not been exhibited. This was a curable defect, but steps should have been taken by the plaintiff in this direction. This is not the case that plaintiff was not aware about this fact as this question was put to him during his cross-examination conducted on 12.09.2013. If somebody has opted to sleep over his right, then the Court cannot help such a litigant. Therefore, defendant has succeeded in creating a doubt over the locus standi of Shri Dinesh CS No. 93137/2016 Page no. 21 / 22 Sharma to pursue the present suit on behalf of the plaintiff company and has successfully discharged the onus to prove this issue in its favour and against the plaintiff. Accordingly, the issue no.6 is decided in favour of the defendant and against the plaintiff.
Relief
49. In view of my findings on the issue no.6, the suit of the plaintiff is dismissed. Decree sheet be prepared. File be consigned to the record room. Digitally signed by DHIRENDRA DHIRENDRA RANA Announced in the Open Court RANA Date: 2020.01.13 on 10.01.2020 16:18:28 +0530 (Dhirendra Rana) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No. 93137/2016 Page no. 22 / 22