Delhi District Court
Sh. Kishan Lal Bansal vs North Municipal Corporation Of Delhi on 22 January, 2019
Kishan Lal Bansal V. NDMC
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO.: 14/2018
UNIQUE CASE ID NO.: 180/2018
IN THE MATTER OF :
Sh. Kishan Lal Bansal
S/o Late Sh. Kanwar Lal Bansal
R/o 29, Rama Park, Kishan Ganj,
Delhi110007. ....Appellant
VERSUS
North Municipal Corporation of Delhi
Civic Centre, Minto Road,
Dr. S.P. Mukherji Marg,
Delhi110002. ....Respondent
APPEAL UNDER SECTION 96 OF C.P.C. FOR SETTING ASIDE THE IMPUGNED ORDER PASSED UNDER ORDER 7 RULE 11 CPC (WHICH IS DEEMED DECREE) PASSED BY LD. ASCJ/JSCC/GJ (CENTRAL), DELHI ON 16.10.2018 IN SUIT NO.93332/16 TITLED AS KISHAN LAL BANSAL VS. NORTH DMC Date of institution of the Appeal : 16/11/2018 Date on which Judgment was reserved : 09/01/2019 Date of Judgment : 22/01/2019 RCA No. 14/2018 Page 1 of 16 Kishan Lal Bansal V. NDMC :J U D G M E N T:
1. The Appellant was Plaintiff and the respondent was Defendant. The appellant and respondent are respectively referred in this Judgment according to the original status before the trial court. The Plaintiff/Appellant is dissatisfied with the Order dated 16.10.2018 whereby the Ld. Trial Court has allowed application under Order 7 Rule 11 CPC and rejected the plaint.
2. The defendant has filed an application under Order 7 Rule 11 CPC and stated in the present application that the unauthorized construction in respect of the suit property bearing no.9340, Gali Ghodhe Wali, Gaushala Marg, Kishan Ganj, Delhi was booked vide file No.6/B/UC/SPZ/98 dated 27.04.1998 in respect of three floors with staircase and thereafter, demolition order was passed. It is further stated that the demolition order was challenged before the Ld. Appellate Tribunal, MCD and the case was remanded back for a fresh decision. Thereafter, the demolition order dated 17.02.2003 was passed after giving personal hearing to the appellant which order was also challenged and the Court was pleased to accept the appeal and vide order dated 29.01.2004, the demolition order was set aside with direction to decide the matter afresh. After giving the personal hearing to the appellant by the competent authority, the demolition order was again passed on 20.09.2004 which was duly received by RCA No. 14/2018 Page 2 of 16 Kishan Lal Bansal V. NDMC the plaintiff/appellant and instead of filing the appeal before the Learned Appellate Tribunal, MCD, the Plaintiff has filed suit which is barred under Section 347E of the DMC Act, 1957.
3. The reply has been filed on behalf of the plaintiff to the said application wherein it is contended that the application is misconceived and has been moved to delay the proceedings of the case. It is further stated that the defendant has tried to demolish the property on the basis of the order already stood quashed by the orders of the Ld. Appellate Tribunal, MCD. Thereafter, the plaintiff filed a contempt application before the Hon'ble Appellate Tribunal, MCD. The Hon'ble Appellate Tribunal, MCD vide order dated 15.10.2004 had observed that the said Court was not exercising the power of a civil court nor there was any interim direction to maintain status quo by the defendant. It is further stated that in this backdrop of the fact, the suit is maintainable and bar of Section 347E of the DMC Act is not attracted in the present case. It is further stated that the issue qua Section 347E of the DMC Act was already framed in the present order and onus to prove the same was upon the defendant and the defendant by moving the said application wants to decide the said issue as per their whims and fences.
4. The Ld. Trial Court has allowed the application and paras No.5 to 10 of the said were are is as follows: RCA No. 14/2018 Page 3 of 16 Kishan Lal Bansal V. NDMC "5. It is a settled law that at the stage of deciding an application under Order 7 Rule 11 CPC only the contents of the plaint and documents filed along with it have to be seen and the defence of the defendant is not to be taken into consideration.
"6. Order 7 Rule 11 CPC reads as under :
"Rejection of plaint - The plaint shall be rejected in the following cases :
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insuffi ciently stamped, and the plaintiff, on being re quired by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9;"
"7. It is also relevant to reproduce Section 347E of the DMC Act, 1957 which reads as under ;
RCA No. 14/2018 Page 4 of 16Kishan Lal Bansal V. NDMC "Bar of jurisdiction of courts - no court shall entertain any suit, application or other proceed ings in respect of any order or notice appealable under Section 343 or Section 347B and no such order or notice shall be called in question other wise than by preferring an appeal under those sections."
"8. From the perusal of the above provision, it is clear that there is a bar of jurisdiction of the civil court in respect of any order or notice appealable under Section 343 or Section 347B of the DMC Act. The plaintiff in paragraph no. 6 of the plaint has averred that he has received copy of the or der dated 20.09.2004 whereby the defendant had upheld the orders dated 20.04.1998 as good. Therefore, it is the admitted case of the plaintiff that the order of demolition has been passed by the defendant on 20.09.2004. The said order has been passed under Section 343 of the DMC Act. There is a bar under Section 347B of the DMC Act for entertaining the civil suit in re spect of the aforesaid order. The suit of the plain tiff is not maintainable in view of Section 41 (h) of the Specific Relief Act as the plaintiff has equally efficacious remedy available to him by filing the appeal before the Ld. Appellate Tri bunal, MCD against the passing of the said de molition order. In a case titled as "Prabhu Dayal Versus MCD & Another" 2001 (58) DRJ 677, it was held by the Hon'ble High Court of Delhi as follows: "In such an appeal it would also be open to the plaintiff not only to show/prove that no such no tices/demolition orders were served, it will also RCA No. 14/2018 Page 5 of 16 Kishan Lal Bansal V. NDMC be open for him to contend that there was no unauthorized construction. The appellate forum being an alternative and efficacious remedy which puts a specific bar on the civil court to en tertain suit of this nature, it would not be appro priate to go in these questions and the appropri ate course would be to relegate the parties to the forum of Appellate Tribunal. It is possible that the show cause notice or the demolition order projected by the MCD are fabricated document or that these were not served upon the plaintiff. It is possible that the show cause notice or the de molition order projected by the MCD are fabri cated document or that these were not served upon the plaintiff. It is also possible that these are genuine documents and were duly served upon the plaintiff who is only feigning nonservice thereof. It is appropriate to leave all these mat ters for determination by the Appellate Authority. As observed by the Supreme Court in the case of Shiv Kumar Chadha (supra) "persons who make unauthorized construction often run to courts with such pleas specially that no notice was is sued or served on them before the Corporation had ordered demolition of the construction". Therefore, it the suit is to be held to be maintain able merely because plaintiff is alleging nonser vice, in all cases the plaintiff would pretend so and file the suit scuttling the provision of appeal altogether. Such an attempt should not be al lowed in view of their being specific provision barring the jurisdiction of the civil court more particularly when the question of service of non service of show cause notice and demolition or der can be duly examined by the Appellate Tri bunal."
RCA No. 14/2018 Page 6 of 16Kishan Lal Bansal V. NDMC "9. It is the contention of the learned counsel for the plaintiff that the bar of Section 347E of the DMC Act is not attracted in the present case as the defendant had taken illegal action and had made the endorsement on the earlier order dated 20.04.1998 by upholding the said order as good in the subsequent order dated 20.09.2004. In view of the Prabhu Dayal's case (supra), the above said contention of the learned counsel for the plaintiff has no merits as whatever the griev ances the plaintiff was having in respect of the said order should also have been agitated before the Ld. Appellate Tribunal, MCD which is an ap propriate forum for redressal of the grievances against the demolition order passed by the MCD as per the DMC Act.
"10. In view of the aforesaid discussions, the present application is allowed and the present plaint is rejected under Order 7 Rule 11 CPC...."
5. The appellant/Plaintiff has sought to set aside the aforesaid order, which is basically deemed decree and praying for remanding back of matter to the Ld. Trial Court for disposal of the case in the issue framed interalia on the following grounds and which are basically the arguments of the Appellant/Plaintiff: (A) Because the Ld. Trial Court has not considered the citation filed and relied upon before Ld. Trial Court reported as AIR 2012 Supreme Court 3023 titled as Bhanu Ram Vs. Janak Singh & Ors.
RCA No. 14/2018 Page 7 of 16Kishan Lal Bansal V. NDMC (B) Because the Ld. Trial Court after pendency of 14 years of trial on an application under order VII Rule 11 CPC rejected the plaint against the settled principles of law considering the defence of the respondent. It is pertinent to mention here that issue is already framed in the suit on the ground that urged in the application under order VII rule 11 CPC moved by the defendant and onus to prove the same was upon the defendant/ respondent which is apparent from the order on issue dated 19.01.2017.
(C) Because the Ld. Trial Court has wrongly held in the impugned order that the suit is not maintainable under Section 347 E of DMC Act and Appellate Tribunal, M.C.D. is having the jurisdiction to adjudicate the dispute involved in the suit. Per contra, before filing the suit when the appellant approached the Appellate Tribunal, M.C.D. in M. No. 48/ATMCD/04 titled as Kishan Lal Bansal Vs. MCD, it has been specifically observed by the Appellate Tribunal: MCD in the order dated 15.10.2004 that "This court is not exercising the powers of the civil court nor there is any interim direction for maintaining status quo by the respondent. At the most, it can be said that the respondent is trying to demolish the property of the RCA No. 14/2018 Page 8 of 16 Kishan Lal Bansal V. NDMC applicant without process of law." Had this order dated 15.10.2004 passed by Appellate Tribunal, MCD been seen and considered by Ld. Trial Court, the application under order VII rule 11 CPC moved by respondent after 14 years of trial would have straightaway dismissed.
(D) Because the perusal of pleadings contained in the plaint would clearly show that suit was not at all barred under any law much less section 347 E of DMC Act, as alleged by the respondent.
(E) Because the issue qua section 347 E of DMC Act is already framed in the suit based on averments of the respondent in their written statement and onus to prove the same was upon the respondent. By virtue of said application under order VII rule 11 CPC, respondent segregated the issue framed in the suit and without proving the same and without leading the evidence over the same, got it decided by virtue of false and frivolous application, that too, after 14 years.
(F) Because the Ld. Trial Court has wrongly held in para no.
8 of the impugned order that it is the admitted case of the plaintiff that order of demolition has been passed by defendant on 20.09.2004 and said order has been passed under section 343 of the DMC Act. Whereas, RCA No. 14/2018 Page 9 of 16 Kishan Lal Bansal V. NDMC perusal of the plaint would not show the alleged case of the plaintiff at all as held by the Ld. Trial Court to be admitted case and furthermore perusal of the said order sheet dated 20.09.2004 in the Trial Court record would show that the same is not the order under section 343 of the DMC Act t all which could attract the bar of filing suit before civil court under section 347 E of DMC Act.
(G) Because the Ld. Trial Court failed to understand the true import of the case of the plaintiff and under the wrong impression that order dated 20.09.2004 has been passed under section 343 of DMC Act, therefore, suit is not maintainable. Whereas, on 12.10.2004 (i.e. after 20.09.2004), admittedly, the defendant/ respondent had come to implement the demolition order dated 27.04.1998 which is already quashed by Appellate Tribunal, MCD and not the order sheet dated 20.09.2004 passed by A.E. (Building)/SPZ and this fact is apparent by the endorsement made by the plaintiff on 12.10.2004 on the original demolition order dated 27.04.1998 produced by the defendant/ respondent and intended to be implemented by respondent on said day.
6. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
RCA No. 14/2018 Page 10 of 16ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
FINDINGS AND CONCLUSIONS OF THE COURT In para No.3 of the Plaint, it is averred that against demolition order No.6/B/UC/SPZ/98 dated 27.04.1998 passed by Shri Ashok Kumar, A.E. (B), of defendant, in respect of Third Floor of Property bearing No.9340, Gali Ghorey Wali, Manakpura, Gaushala Marg, Kishan Ganj, Delhi, the Plaintiff/Appellant has approached the Appellate Tribunal, MCD and the Ld. Appellate Tribunal has setaside the said demolition order and directed the said order shall be treated as fresh show cause notice. In para No.4, it is averred that Plaintiff filed the objections dated 28 th November, 2002 alongwith the documents. In para No.5, it is averred that suddenly the officials of defendant visited the property on 22.02.2003 and tried to demolish the third floor of the suit property, however, they were not able to demolish as per averments made in the said para. It is further averred that the Plaintiff received the copy of the demolition order dated 17.2.2003 on 22.2.2003 and the plaintiff filed an Appeal before the Appellate Tribunal, MCD against the said order and the Hon'ble Tribunal RCA No. 14/2018 Page 11 of 16 Kishan Lal Bansal V. NDMC again setaside the order and remanded back the matter for fresh consideration. In para No.6, it is averred that the Plaintiff received one copy of order dated 20.09.2004 whereby the defendant had upheld the orders passed vide No.6/B/UC/SPZ/98 dated 27.04.1998 as good.
The Ld. Counsel for the Appellant/Plaintiff has strenuously harping upon the observation of the Ld. Appellate Tribunal which was passed on 15.10.2004 in contempt petition No.48/ATMCD/04 titled as "Kishan Lal Bansal Vs. MCD" and the same is as under: "... The facts, in brief, for filing this contempt petition are that a demolition order dated 27.4.1998 was passed by respondent which was challenged before this court vide appeal no.215/02. Vide order dated 11.07.02 this order was set aside and the case was remanded back for fresh decision. Again the respondent passed a demolition order which was challenged before this court vide Appeal No. 57/03. The matter was again remanded back with the direction to decide the same afresh issuing a fresh show cause notice."
"As per the appellant, the officials of the respondent have come to the spot on 12.10.04 alongwith the police force to demolish the property of the appellant. However, when the copy of the order of this court dated 29.1.04 was shown to them then these officials went back without carrying out demolition. But these officials have left the spot with threat that they will come again and will demolish the property of RCA No. 14/2018 Page 12 of 16 Kishan Lal Bansal V. NDMC the appellant. These are undisputed facts till now. Now the question arises how the contempt is maintainable in the back drop of these facts. This court is not exercising the powers of the civil court nor there is any interim direction for maintaining status quo by the respondent. At the most, it can be said that the respondent is trying to demolish the property of the applicant without process of law. Thus, in my considered opinion this application is not maintainable. Accordingly, the same is dismissed....."
The Ld. Counsel for the Plaintiff/Appellant has strenuously argued on the aforesaid observation that the Ld. Trial Court was having jurisdiction to entertain and try the present case as the Ld. Appellate Tribunal had categorically held that "at the most, it can be said that the respondent is trying to demolish the property of the applicant without process of law.
The Plaintiff has filed the contempt petition before the Ld. Appellate Tribunal MCD and not appeal before the Ld. Appellate Tribunal and perusal of the aforesaid order, it clearly depicts that there is no mention about the order dated 20.09.2004, whereby, the defendant had upheld the orders passed vide No.6/B/UC/SPZ/98 dated 27.04.1998 as good. The Ld. Appellate Tribunal has nowhere interpreted the order dated 20.09.2004 and then came to the conclusion that respondent is acting without due process of law. The Plaintiff has nowhere averred in the entire plaint that the Plaintiff has challenged the order dated 20.09.2004 before the Ld. RCA No. 14/2018 Page 13 of 16 Kishan Lal Bansal V. NDMC Appellate Tribunal, MCD and in view thereof the Ld. Appellate Tribunal has observed the aforesaid aspect. In my considered view, the observation of Ld. Appellate Tribunal, MCD is of no help to the plaintiff to conclude that the Civil Suit is maintainable.
The Plaintiff is also trying to show in the plaint that since the order dated 27.04.1998 was treated as showcause notice by the Ld. Appellate Tribunal, therefore, the entire proceedings prior to the same has been vitiated. The said argument of the Ld. Counsel has not substance at all. The moment the defendant had endorsed the view that order dated 27.04.1998 is good vide order dated 20.09.2004 then natural corollary or sequel thereof is that the defendant had passed fresh and subsequent demolition order on 20.09.2004 and the order dated 27.04.1998 is merged with order dated 20.09.2004. The demolition order dated 20.09.2004 has basically bodily lifted and incorporated the order dated 27.4.1998 in the order dated 20.9.2004. The passing of the fresh order dated 20.09.2004 was admittedly received by the Plaintiff in para No.6 and the same is basically the demolition order and the bar created under Section 347E of the DMC Act, 1957 squarely applies to the factual matrix of the case from the admitted case of the Plaintiff in the Plaint.
The Ld. Trial Court has categorically held that there is an equal efficacious remedy available under the law and in my considered view, not only this there is clear ouster of jurisdiction of the Civil Court under Section 347E of the DMC Act, 1957 and the RCA No. 14/2018 Page 14 of 16 Kishan Lal Bansal V. NDMC same would amount to bar of Civil Court jurisdiction under Section 9 of the Code of Civil Procedure, 1908 (CPC). As per Section 9 of the CPC, the jurisdiction of the Civil Court can be ousted expressly or impliedly by the legislature. The Legislature in its wisdom has categorically and expressly ousted the jurisdiction of Civil Court by incorporating Section 347E of the DMC Act, 1957. Considered from any view point this court do not find infirmity in the findings of the Ld. Trial Court and the Ld. Trial Court has rightly rejected the plaint while exercising the powers under Order 7 Rule 11 CPC. RELIEF:
In view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
1. The Regular Civil Appeal of the Plaintiff/Appel lant is hereby dismissed and consequently the impugned order dated 16.10.2018, which is deemed decree in terms of Section 2 (2) of CPC, passed by the Ld. Trial Court is hereby con firmed.
2. The Parties shall bear their own respective costs.
3. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.RCA No. 14/2018 Page 15 of 16
Kishan Lal Bansal V. NDMC Decreesheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 22nd day of January, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi RCA No. 14/2018 Page 16 of 16