Delhi District Court
S.B. Gupta vs Dda on 25 September, 2023
1
IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE
(WEST)-02, DELHI
SUIT NO.612694/2016
CNR NO. DLWT03-000018-1993
Sh. S.B. Gupta (Kabirpanthi)
S/o Sh. R.S. Gupta (Kabirpanthi)
R/o H-1/43-1 & 2, Lajpat Nagar,
New Delhi-110024
..........................PLAINTIFF
VERSUS
Delhi Development Authority
through its Vice Chairman,
Vikas Sadan, INA, New Delhi.
.....................DEFENDANT
Suit filed on :- 18.03.1993
Judgment Reserved on :- 22.09.2023
Date of decision :- 25.09.2023
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
JUDGMENT
By this judgment, the undersigned shall dispose of the present suit filed by the plaintiff against the defendant/DDA seeking the decree of declaration and permanent injunction. Before adjudicating upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-1/32 2 Pleadings of the Plaintiff: -
1. The plaintiff filed the present suit seeking declaration, permanent and mandatory injunction. The case of the plaintiff is that, he is the owner of the premises bearing no.H-1/43-1 & 2, Lajpat Nagar, New Delhi-110024 and is living there with his family for past 36 years (as on the date of institution of this suit). That, the suit has been instituted only w.r.t. premises bearing no.H-1/43-1, ad-
measuring 100 sq. yds., Lajpat Nagar, New Delhi-110024 (hereinafter "Suit Property"). It has been submitted by the plaintiff that the suit property was allotted by the Ministry of Rehabilitation vide letter no. RSCD/MO/GBP/AG/5578 dated 28.12.1972 at the total cost of Rs.15,000/- as a strip of land adjoining to H-1/43, Lajpat Nagar, New Delhi.
2. It has been stated by the plaintiff in his plaint that, the plaintiff had filed an earlier Civil Suit bearing no.649 of 1986 against the defendant herein, whereby an interim relief vide order dated 21.02.1989 was granted in favour of the plaintiff seeking the relief of restraining the DDA from demolishing the suit property. It has been further stated in the plaint that, the appeals filed by the DDA to the said interim relief dated 21.02.1989 in the earlier suit was also dismissed by the Ld. Appellate Court. It has been further stated by the plaintiff that, during the pendency of that earlier suit no.649/1986, certain office bearers of DDA called the plaintiff at their office and assured the plaintiff to regularize the suit property by issuing lease Suit No.612694/2016 S.B. Gupta Vs. DDA Page-2/32 3 deed/conveyance deed. As per the averment of the plaintiff, the plaintiff upon such assurance from the officials of DDA withdrew that earlier suit no.649/1986. It has been further averred by the plaintiff that thereafter the plaintiff wrote a letter dated 02.08.1989 to the defendant/DDA along with 22 enclosures for regularization of the suit property and the same was received in the office of DDA vide receipt no.27630 dated 02.08.1989.
3. It has been further averred by the plaintiff in his plaint that instead of regularizing the suit property, the DDA preferred a civil revision bearing no.852 of 1989 before the Hon'ble High Court of Delhi against the order of dismissal dated 26.04.1989 passed by the Ld. Appellate Court with respect to the interim relief passed in the earlier suit dated 21.02.1989; however, the same was also dismissed vide order dated 19.12.1989.
4. It has been further averred by the plaintiff that, the plaintiff complied with the assurance of the defendant/DDA and withdrew that earlier suit no. 649/1986 and had already made a payment with respect to suit property to DDA vide receipt no.1686/74630 dated 22.09.1983 for a sum of Rs.1,000/- and on 08.02.1989 for a further sum of Rs.14,0000/-. It has been further averred by the plaintiff that thereafter the officials of DDA started harassing the plaintiff by initiating eviction proceedings and issued show Suit No.612694/2016 S.B. Gupta Vs. DDA Page-3/32 4 cause notice no.EV/LPN/141/82 dated 03.09.1992. It has been further stated by the plaintiff that upon receipt of the said show cause notice, the plaintiff filed a reply in the Court of Estate Officer-IV, DDA on the ground that the actions of DDA are malafide, arbitrary, illegal and in breach of the mutual understanding between the parties.
5. It has been further stated that, the Estate Officer-IV, DDA thereafter issued a demand letter to the plaintiff for payment of damages charges for the suit property vide letter no.D-54(1)/LN/1996 dated 22.07.1996 and the same was also arbitrary and illegal on the ground that as per the claim of the plaintiff, the plaintiff was not liable for paying any damages since the plaintiff claimed to be in the possession of the suit property as owner. The plaintiff thereafter paid a sum of Rs.15,000/- vide challan no.1787/receipt no.13258 dated 26.07.1996 to the defendant, subject to the adjustment in the cost of the land. It has been further averred by the plaintiff that the suit property as calculated by defendant @Rs.150/- per sq. yrds. which comes around to Rs.41812.50/-, out of which the plaintiff has deposited a sum of Rs.30,000/-. The plaintiff has further mentioned the details of certain properties in the area of Lajpat Nagar, Rajinder Nagar, Geeta Colony, which has also been regularized by the defendant/DDA. However, the same are not being reproduced for the sake of brevity.
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-4/32 5
6. It is the further case of the plaintiff that being constrained by the actions of defendant/DDA, the plaintiff served a notice to the defendant/DDA dated 01.01.1997 U/s 53B of DDA Act'1957 with respect to regularization of the suit property and thereby requesting DDA not to implement the demand letter no.D-54 (1)/Lajpat Nagar/1996 dated 22.07.1996 and the same was received by DDA vide receipt no.00011 dated 03.01.1997. However, it has been further averred that thereafter the officials of defendant/DDA came to the plaintiff on 14.03.1997 and threatened to demolish the suit property malafidely, arbitrally and against the provisions of DDA act without issuing any show cause notice and demolition notice. It has been further averred by the plaintiff in the plaint that, the defendant/DDA in fact removed the staircase and some built up structure without any notice to the plaintiff.
7. The plaintiff thereafter filed a petition in the Consumer Forum, Delhi vide case no.2664/1996 seeking compensation against the acts of defendant/DDA. Hence, the plaintiff has filed the present suit seeking the relief of declaration, thereby declaring the plaintiff to be the owner and in possession of the property bearing no.H-1/43-1 & 2, Lajpat Nagar, New Delhi as shown in red colour in the site plan alongwith the further consequential reliefs seeking permanent injunction thereby restraining the defendant, its agent, employees, representatives etc. from demolishing and removing the suit property and from further restraining Suit No.612694/2016 S.B. Gupta Vs. DDA Page-5/32 6 the defendant from interfering in the peaceful use, occupation and possession of the plaintiff and further seeking the relief of mandatory injunction, thereby issuing directions to the defendant/DDA not to implement the demand letter no.D-54(1)/LN/1996 dated 22.07.1996.
8. At this stage it is pertinent to mention that, the instant suit was instituted in the year 1997, whereby the original plaint dated 18.03.1997 was filed and thereafter an amended plaint dated 28.10.1999 was filed and which was allowed to be taken on record vide order dated 05.01.2000. Thereafter another corrected plaint dated 17.09.2018 was also filed stating to have been filed in compliance of order dated 28.10.1999 and the copy of the same was also supplied to the defendant/DDA. Thereafter defendant/ DDA moved an application U/O 6 Rule 16 CPC seeking rejection of the amended plaint, however, the said application was dismissed and the corrected plaint dated 20.09.2018 was taken on record as the final corrected plaint in the present matter vide detailed order of the Ld. Predecessor Court dated 13.02.2020; and the pleadings as afore-mentioned have been mentioned on the basis of the said final corrected plaint dated 20.09.2018.
Pleadings of the Defendants: -
9. Thereafter summons for settlement of issues were issued upon the defendant and the same was received back as served and Ld. Counsel for DDA appeared and filed his WS to the contents of the plaint.
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-6/32 7
10.The written statement was filed on behalf of defendant/ DDA denying the allegations as contained in the plaint wherein inter alia, it was submitted that the plaintiff is a mere trespasser, who has encroached upon the government land adjacent to the plot no.H-1/43/1 without any right or title and therefore the plaintiff has not locus standi to file the present suit. It has been further stated in WS that the earlier suit no.649/86 was withdrawn by the plaintiff on 01.08.1989 without the leave of the Court to file a fresh one and filed another suit bearing no.497/1990 on the same cause of action and seeking the same relief and the said suit was also dismissed vide order dated 04.03.1993 and an appeal against the order of dismissal dated 04.03.1993 was also dismissed by the Ld. Appellate Court vide order dated 22.03.1996 and therefore, the present suit of the plaintiff is barred and is liable to be dismissed under the principles of res-judicata. It was further stated that, the plaintiff has not properly valued the suit for the purpose of court fees and proper court fees has not been paid and further the suit is also bad for non-joinder of necessary party i.e. the Union of India.
11.In the para wise replies on merits in the WS, the DDA categorically denied the allegations as made by the plaintiff in his plaint and further stated that the claim of the plaintiff for another strip of land bearing no.H-1/43/2 measuring 223 sq. yrds. is a fresh claim and without any right or title. It has been further stated in the WS that the Suit No.612694/2016 S.B. Gupta Vs. DDA Page-7/32 8 said strip of land bearing no.H-1/43/2 measuring 223 sq. yrds. has been handed over to the defendant/DDA as a vacant land vide letter dated 10.01.1984 by the settlement wing of the Ministry of Rehabilitation. It has been further categorically replied to and stated by DDA that the Ministry of L.E. & Rehabilitation vide letter dated 28.12.1972 proposed to allot/transfer the additional strip of land measuring 100 sq. yrds. adjoining to the property bearing no.H-1/43-1, Lajpat Nagar to the plaintiff on following terms and conditions (being reproduced hereinunder at the cost of convenience):
"1). That the allottee/lessee shall not construct the building independently or as an extension on the additional strip of land now offered to him/her or shall not put into any use, without getting the approval of the local body to the land used of the plot so allotted to him now.
2). That he will deposit within 15 days from the date of receipt of allotment order with the Reserve Bank of India, New Delhi after having the necessary challan from the office. A sum of Rs.15,000/- as cost price of the additional piece of land @Rs.150/- per sq. yrds.
3). That he will execute the lease deed in the form approved by Govt. of India in this behalf.
4). That he will pay ground rent @Rs.1/per hundred sq. yrds. as part thereof, per annum from the date of occupation/allotment/transfer, whichever is earlier.
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-8/32 9
5). That if he fails to notify his/her acceptance of this offer within 15 days from the date of receipt of this letter, the offer would be deemed to have been withdrawn."
12.In this regard it has been further stated by DDA in WS that, the plaintiff failed to deposit the cost of land within the stipulated time and as such the offer stood withdrawn in view of condition no.5 as mentioned above and, therefore, the contention of the plaintiff that the suit land was allotted to him is an incorrect fact and rather the plaintiff wishes to grab the suit land measuring 100 sq. yrds. bearing no.H-1/43/1 and another piece of land bearing no.H-1/43/2 measuring 223 sq. yrds. Both these pieces of lands have been transferred/handed over to DDA by the Ministry of Rehabilitation. Further, in reply to para no.3 to 5, it has been stated in the WS that the same are admitted being a matter of record, however, the plaintiff has concealed material facts that the previous suits and appeal of the plaintiff were dismissed and, therefore, the present suit is barred by principles of res judicata. Further, the contents of para no.6 & 7 have been categorically denied and stated to be not admitted by the defendant. Further, with respect to the contents of para-8, it has been stated by defendant that no such assurance was ever given by the defendant to the plaintiff for regularizing the suit property. Further, the contents of para-9, 11, 12, 13, 14, 15, 16 have been admitted being a matter of record and Suit No.612694/2016 S.B. Gupta Vs. DDA Page-9/32 10 requiring no specific denial and are admitted only to the extent that such legal proceedings were undertaken by/against the plaintiff. However, the same were not done arbitrarily or illegally.
13.It has been further stated with respect to the contents of para no.10 that the plaintiff has not stated in his plaint that on what account the payment of Rs.1,000/- and Rs.14,000/- on 22.03.1982 and 08.02.1989 were made by the plaintiff. Further, the contents of para no.16 have been admitted that the pay order no.012525 dated 25.07.1996 for Rs.15,000/- was received from the plaintiff towards the payment of damages as issued by the Estate Officer-IV, DDA. It has been further stated by the DDA that the plaintiff is trying to mislead the Court by concealing and twisting the fact. It has been further stated that the sum of Rs.15,000/- was deposited by the plaintiff towards the demand of damages for unauthorized use and occupation. Further, with respect to the payment of Rs.1,000/- and Rs.14,000/-, it has been submitted that no account/purpose of such payment has been mentioned by the plaintiff in view of the fact that the defendant neither allotted the land to the plaintiff nor sent any demand thereof. It has been further stated that the fact of service of notice U/s 53-B of DDA Act is a matter of proof to be proved by plaintiff. Further, all the other paras of the plaint have been denied by the defendant and it has been further stated that the plaintiff is a trespasser, who has illegally encroached upon Suit No.612694/2016 S.B. Gupta Vs. DDA Page-10/32 11 the government land without any right or title and, therefore, there is no question of issue of any show cause notice to the plaintiff and the defendant/ DDA and its officials are well within their powers under DDA Act to take appropriate legal action against such illegal encroachers. At this stage it is further pertinent to mentioned that the DDA had adopted its original WS against the corrected plaint of the plaintiff and did not file any amended WS.
Replication: -
14.Thereafter no replication to the WS of the DDA was ever filed by the plaintiff despite opportunity.
Issues: -
15.From the pleadings of the parties, following issues were framed in the suit vide order dated 15.05.2013:-
1). Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP
2). Whether the plaintiff is entitled to the mandatory injunction as prayed for? OPP
3). Whether the plaintiff is entitled to the declaration as prayed for? OPP
4). Whether the plaintiff is entitled to the compensation, if so then how much? OPP
5). Whether the suit is barred by res judicata? OPD Suit No.612694/2016 S.B. Gupta Vs. DDA Page-11/32 12
6). Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? OPD
7). Whether the suit is bad for non-joinder of necessary parties? OPD
8). Relief.
At this stage it is pertinent to mention that issue no.5 & 6 were treated as preliminary issues and the matter was fixed for arguments on preliminary issues. However, vide order dated 07.09.2015, it has been observed by the Ld. Predecessor Court as follows:-
"Matter is fixed for arguments on preliminary issues. Perusal of record shows that issues have been framed in this case on 15.05.2013. Ld. Predecessor has made issue no.5 & 6 framed on 15.05.2013 as preliminary issue, however, I have gone through the pleadings, these issues cannot be decided without parties leading evidence. Accordingly let the issue be decided at the conclusion of trial".
Thereafter the matter was put up for plaintiff's evidence.
Plaintiff Evidence: -
16.In the present matter the matter was fixed for PE vide order dated 07.09.2015, however, despite providing multiple opportunities and not less than 5 consecutive Court dates and further levy of cost of Rs.1,500/-, no PE Suit No.612694/2016 S.B. Gupta Vs. DDA Page-12/32 13 was led by the plaintiff despite providing last and final opportunity on 22.08.2016 and, therefore, the Court was constrained to close the right of plaintiff to lead PE vide order dated 28.11.2016. thereafter plaintiff moved an application U/s 151 CPC for reopening plaintiff's evidence, which was decided in the negative vide detailed order dated 01.06.2017. Thereafter, the plaintiff preferred an appeal against the said order of dismissal dated 01.06.2017 before the Hon'ble High Court of Delhi, which was also dismissed by the Hon'ble High Court of Delhi in CM(M) No. A-21/2017 and CM(M) No. A-22/2017 vide order dated 12.10.2017. Thereafter the matter was proceeded for defence evidence.
Defendant Evidence: -
17.Evidence was led by the defendant/DDA and defendant/DDA got examined three witnesses i.e., Sh.
Rishi Raj, the then Asst. Engineer (Civil), DDA as DW-1 and Sh. Anil Kumar, the then ASO, Ministry of Home Affairs, NDCC-II, Building, Jai Singh Road, New Delhi as DW-2.
a). DW-1 Sh. Rishi Raj, the then Assistant Engineer (Civil) from DDA led his evidence by way of affidavit which is Ex.DW1/A and also relied upon certain documents which are as under:
Identification Description
Mark
Mark-A Package deal dated 02.09.1982. (de-
exhibited from Ex.DW-1/1).
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-13/32 14 Ex.DW- Copy of possession proceedings dated 1/2(colly) 10.01.1984 alongwith letter no.F.1(84)/VP/Survey/83, list and plan Mark-B Copy of plaint of suit no.649/86 with WS (de-exhibited from Ex.DW-1/3).
Mark-C Copy of order dated 01.08.1989. (de-
exhibited from Ex.DW-1/4).
Mark-D Copy of plaint of suit no.497/90 with WS (de-exhibited from Ex.DW-1/5).
Mark-E Copy of order dated 04.03.1993 (de-
exhibited from Ex.DW-1/6 as same is not on record).
Mark-F Copy of order dated 22.03.1993
passed in RCA no.4193 (de-exhibited
from Ex.DW-1/7).
DW-1 was also cross-examined at length on behalf of plaintiff and during cross-examination plaintiff confronted DW-1 with certain documents i.e., receipts dated 22.09.1983 for Rs.1,000/- and 08.02.1989 for Rs.14,000/- which were exhibited as Ex.DW01/P1 and DW-1/P2 (both OSR), letter dated 08.12.1987 issued by DDA as Ex.DW- 1/P3, letter addressed to Vice Chairman, DDA dated 14.11.1987 sent by Ministry of Home Affairs as Ex. DW- 1/P4, memorandum dated 09.05.1974 issued by the office of Settlement Commissioner as Mark-X.
b). DW-2 Sh. Anil Kumar, the then ASO from Ministry of Home Affairs brought the photocopy of package deal Suit No.612694/2016 S.B. Gupta Vs. DDA Page-14/32 15 dated 02.09.1982 as the original of the same was not traceable. Same was marked as Mark-A (colly) issued by Ministry of Supply and Rehabilitation.
DW-2 was also cross-examined on behalf of plaintiff and during cross-examination stated that it is correct he has never seen the original of Mark-A (colly).
Further, perusal of record shows that the DE was closed vide order dated 25.02.2019 and thereafter the matter was put up for final arguments.
Decision with reasons: -
18. The final arguments were extensively heard on behalf of both the parties at length and the entire record has been carefully perused.
Firstly, this Court shall decide upon the issue no. 5 and 6, being preliminary issues vide orders dated 15.05.2013 and 17.09.2015.
19. W.r.t. issues no. (5):-
5). Whether the suit is barred by res judicata? OPD The onus of proving this issue rests upon the defendant/ DDA.
At the outset, it is pertinent to mention that, this issue has emanated from the pleadings of the defendant. As per the case of the defendant/DDA, it has been alleged by the DDA in its WS in preliminary objections that, the plaintiff had earlier filed a civil suit bearing no. 649/1986 and Suit No.612694/2016 S.B. Gupta Vs. DDA Page-15/32 16 withdrew the same on 01.08.1989 without the leave of the Court to file a fresh one. Thereafter, the plaintiff filed another civil suit bearing no. 497/1990 for the same cause of action and relief. The said suit was dismissed vide order dated 04.03.1993. Thereafter, the plaintiff preferred an appeal against the order dated 04.03.1993 in RCA No. 41/1993, which was also dismissed by the Ld. Appellate Court vide order dated 22.03.1996. It has been further averred by the DDA in its WS and also argued by the Ld. Counsel for the DDA at the stage of final arguments that, in the light of the above the present suit of the plaintiff is not maintainable and barred by the principles of res judicata.
It is pertinent to mention that, these facts have also been mentioned by the plaintiff himself in his plaint. Further, from the perusal of record and the arguments heard on both the sides, it is a clear position that, the earlier suits filed by the plaintiff were filed seeking the relief of permanent injunction simplicitor, thereby restraining DDA from not causing hinderance in the possession of the plaintiff and not demolishing the suit property.
In this regard, let us discuss the law on res judicata as laid down under Section 11 of the Code of Civil Procedure, 1908 [hereinafter "CPC"] "Section 11. Res judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and Suit No.612694/2016 S.B. Gupta Vs. DDA Page-16/32 17 substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II- (...).
Explanation III-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV- (...).
Explanation V- (...).
Explanation VI- (...).
Explanation VII- (...).
Explanation VIII- (...)."
From the bare reading of Section 11 CPC, it transpires that, by virtue of the principle of res judicata no court shall have the power to try any fresh suit or issue(s) which has been already decided in a former suit between the same parties by a Court of competent jurisdiction which could have also decided such subsequent suit. The provision of section 11 Suit No.612694/2016 S.B. Gupta Vs. DDA Page-17/32 18 also applies on the persons who are claiming under the parties before the former suit. The doctrine of res judicata is based on the jurisprudence that, if a matter has already been decided by a court of competent jurisdiction, then those parties or persons claiming under them, have no right to reagitate the same issues in a subsequent suit. The doctrine of res judicata also ensures the conclusiveness of the judgments as to the points decided. The doctrine of res judicata comes into play when, issues directly and substantially decided between the same parties in the former are also agitated between the same parties or persons claiming through them, in a subsequent suit. A matter/issue is said to be directly and substantially in issue when, in a former suit the said issue had been alleged by one party and either denied or admitted, expressly or impliedly, by the other party.
In this regard, it has been observed in the locus classicus of Mathura Prasad Bajoo Jaiswal & Ors vs Dossibai N. B. Jeejeebhoy [1971 AIR 2355] that, "the rule of res judicata applies if "the matter directly and substantially in issue" in a suit or proceeding was directly and substantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent Court."
It has been further held as follows:
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-18/32 19 "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided-in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be, reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned a subsequent proceeding between the same parties. But, where the decision is on a question law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same for the expression "the matter in issue" in s. 11 Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded Suit No.612694/2016 S.B. Gupta Vs. DDA Page-19/32 20 from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."
[Emphasis Supplied]
20.In the present matter, upon perusal of documents tendered by defendant/DDA in its evidence and marked as Mark 'B' i.e., copy of plaint and WS of suit no.649/1986; Mark 'C' i.e., copy of order dated 01.08.1989; Mark 'D' i.e., copy of plaint in suit no. 497/1990; Mark 'E' ie., copy of order dated 04.03.1993; Mark 'F' i.e., copy of order dated 22.03.1993 in RCA No.4193 it is a clear position that, both the earlier suits filed by the plaintiff were suits seeking the relief of permanent injunction simplicitor. While the suit no.649/1986 was withdrawn by the plaintiff and suit no. 497/1990 was dismissed on the ground that, the said suit was filed on the same cause of action as one under suit no. 649/1986 and without any leave of the court to file a fresh one on the same cause of action as per Order 23 Rule 1 CPC. Hence, both the earlier suits were not decided on the merits i.e., a decision arrived upon appreciation of the evidences led by the parties.
It is further vital to mention herein that, the present suit has been instituted by the plaintiff seeking declaration of ownership, permanent and mandatory injunction on the ground that, defendant/DDA had initiated eviction Suit No.612694/2016 S.B. Gupta Vs. DDA Page-20/32 21 proceedings against the plaintiff side under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which amounts to a fresh cause of action, and was not directly and substantially in issue in any of the earlier suits in any manner.
The opinion of this Court is further fortified by the ruling of the Hon'ble Apex Court in the case of Prem Kishore & Ors. versus Brahm Prakash & Ors. [Civil Appeal No. 1948 of 2013; March 29, 2023, Division Bench] as follows:
"34. The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate Suit No.612694/2016 S.B. Gupta Vs. DDA Page-21/32 22 when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit."
[Emphasis Supplied] Hence, the issue no.(5) is decided in favour of the plaintiff and against the defendant/DDA.
21.W.r.t. issues no. (6):-
6). Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? OPD The onus to prove this issue lies upon the defendant/DDA.
It has been stated by DDA in its WS in preliminary objections and also at the stage of final arguments that, the plaintiff has neither properly valued the suit for the purpose of jurisdiction, nor affixed the requisite court fees. In this regard, perusal of plaint reflects that, the plaintiff has sought three reliefs namely- declaration as the owner of the suit property, permanent injunction and mandatory injunction. It is the settled law under the Suit Valuation Act, 1887 and the Court Fees Act, 1870 read along with the Delhi High Court Rules, that all the reliefs are required Suit No.612694/2016 S.B. Gupta Vs. DDA Page-22/32 23 to be valued separately for the purpose of jurisdiction and thereafter, separate court fees is affixed on each relief sought.
In the instant matter, the plaintiff in its corrected final plaint has states in para no. (25) as follows:
"25. That the value of the suit for the purposes of court fees and jurisdiction is Rs.130/- and the court fee of Rs.13/- have already been affixed on the plaint. The suit of the plaintiff for the purposes of relief of declaration is fixed Rs.20/- and requisite court fees is being paid on plaint."
In the light of the above, the plaintiff should have separately valued the reliefs of declaration; permanent injunction and mandatory injunction at the fixed rates of Rs.200/-; Rs.130/- and Rs.130/- respectively, and should have affixed the court fees of Rs.20/-; Rs.13/- and Rs.13/- for these reliefs respectively. However, no court fees has been affixed on the corrected final plaint dated 17.09.2018 or on a previous amended plaint dated 28.10.1999. Further, only a court of Rs.13/- has been affixed by way of stamps of denomination of Rs.10/- and Rs.03/- on the original plaint dated 18.03.1997 Hence, the issue no. (6) is decided against the plaintiff and in favour of the defendant.
22.W.r.t. issues no. (7)
7). Whether the suit is bad for non-joinder of necessary parties? OPD Suit No.612694/2016 S.B. Gupta Vs. DDA Page-23/32 24 The onus to prove this issue lies upon the defendant/DDA. It has been stated by DDA in its WS in preliminary objections and also at the stage of final arguments that, Union of India is a necessary party being the original owner of the land in question, but the same has not been impleaded as such the suit is bad for non-joinder of necessary party.
However, it is the admitted case of the defendant/DDA that, vide letter dated 02.09.1982 the Ministry of Supply and Rehabilitation had transferred the land in question with other lands to DDA and as on date of institution of the suit, the land belongs to DDA.
In this regard, the defendant could not place any other material on record to show that in what manner Union of India is also a necessary party to the present suit and has failed to prove the onus cast upon it.
Hence, issue no. (7) is decided in favour of the plaintiff and against the defendant/DDA.
23.W.r.t. issues no. (1), (2) and (3):-
1). Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP
2). Whether the plaintiff is entitled to the mandatory injunction as prayed for? OPP
3). Whether the plaintiff is entitled to the declaration as prayed for? OPP Suit No.612694/2016 S.B. Gupta Vs. DDA Page-24/32 25 The issues no. (1), (2) and (3) are being dealt with together. The onus to prove these issues was upon the plaintiff.
In the present matter, the matter was fixed for PE vide order dated 07.09.2015, however, despite providing multiple opportunities and not less than 5 consecutive Court dates and further levy of cost of Rs.1,500/-, no PE was led by the plaintiff despite providing last and final opportunity on 22.08.2016 and, therefore, the Court was constrained to close the right of plaintiff to lead PE vide order dated 28.11.2016.
Thereafter plaintiff moved an application U/s 151 CPC for reopening plaintiff's evidence, which was decided in the negative vide detailed order dated 01.06.2017. Thereafter, the plaintiff preferred an appeal against the said order of dismissal dated 01.06.2017 before the Hon'ble High Court of Delhi, which was also dismissed by the Hon'ble High Court of Delhi in CM(M) No.A-21/2017 and CM(M) No.A-22/2017 vide order dated 12.10.2017. Hence, no evidence has been advanced by the plaintiff in order to prove his own case.
Be that as it may, it is pertinent to mention that at the stage of defence evidence, the plaintiff confronted the DW-1 with certain documents i.e., receipts dated 22.09.1983 for Rs.1,000/- and 08.02.1989 for Rs.14,000/- which were exhibited as Ex.DW-1/P1 and DW-1/P2 (both OSR), letter Suit No.612694/2016 S.B. Gupta Vs. DDA Page-25/32 26 dated 08.12.1987 issued by DDA as Ex.DW-1/P3, letter addressed to Vice Chairman, DDA dated 14.11.1987 sent by Ministry of Home Affairs as Ex. DW-1/P4, memorandum dated 09.05.1974 issued by the office of Settlement Commissioner as Mark-X. By virtue of putting these documents to DW-1 and confronting DW-1 at the stage of his cross-examination, the plaintiff wished to prove his case that, defendant/DDA allotted the suit property i.e., property no. H-1/43-1, Lajpat Nagar, New Delhi, to the plaintiff and plaintiff had in fact made the requisite payment to the defendant/DDA. It was argued by the Ld. Counsel for plaintiff, that by virtue of these documents and admitted by DW-1, the legal heirs of plaintiff have proved issues no. (1), (2) and (3).
In this regard it is pertinent to mention that, DW-1 in his cross examination had stated that, he has no personal knowledge of the confronted documents; since, at the relevant point of time he was not working with the defendant/DDA, however can answer the questions on the basis of bare reading of the confronted documents. It was stated by DW-1 in his cross-examination that, the land in question was originally owned by Ministry of Rehabilitation. It was further stated, that the land in question was encroached, however the documents do not mention the name of encroacher and time of encroachment. It was further stated, that the documents Suit No.612694/2016 S.B. Gupta Vs. DDA Page-26/32 27 being confronted by the plaintiff do not exist in the record file brought. It was further stated on the suggestion from the plaintiff side, that it is correct that the receipts dated 22.09.1983 for Rs.1,000/- and 08.02.1989 for Rs.14,000/- which were exhibited as Ex.DW-1/P1 and DW-1/P2 do mentions that the payments have been made in respect of the suit property, however, it cannot be said whether the same was deposited as the cost of allotment of the suit property.
Hence, upon the thorough reading of the cross- examination of DW-1, the answers given by DW-1 do not amount to the admission of the claims of plaintiff. Rather, DW-1 only supported the stand and case of the defendant/DDA that, making payments vide receipts dated 22.09.1983 and 08.02.1989 does not prove that, the same was made by the plaintiff towards the allotment of the suit property by DDA in plaintiff's favour, since these confronted documents do not exist in the record of DDA nor anything in this regard was proved by plaintiff. It is further pertinent to mention that, it is the admitted case of the plaintiff that, DDA had in fact demolished certain parts of the suit property and even initiated eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It was further argued by the Ld. Counsel for defendant/DDA that, as per the admitted case of the plaintiff in para no. 2 of the plaint, the land in question was proposed to be allotted to the plaintiff by the Suit No.612694/2016 S.B. Gupta Vs. DDA Page-27/32 28 Ministry of Rehabilitation vide letter 09.05.1974 issued by the office of Settlement Commissioner i.e., Mark-X. However, no such allotment has ever taken place, else the plaintiff would have place relevant documents on record and the same would have also existed in the record of DDA. This Court finds merit in this argument on behalf of DDA.
Further, it is the settled position of the that, he who seeks a relief upon certain averments, he must prove those averments by leading evidences, which the plaintiff in the instant case has grossly failed to do so. It is further crucial to point out, that no documents, inter alia, showing the nature of built-up property, if any at-all; allotment letter; demand letter by defendant/DDA calling upon plaintiff to make payments qua the suit property; possession letter showing handing over of the possession of the suit property by the defendant/DDA in favour of the plaintiff; conveyance deed, have been annexed with plaint, let alone led in evidence.
Hence, this Court is of the considered opinion that, the plaintiff has grossly failed in proving his own case. It is the established law, that the general burden of proving the case rests upon the plaintiff in a civil suit and therefore, the case of the plaintiff must stand on its own legs. Section 101 of the Indian Evidence Act, 1872 provides as under:
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-28/32 29 "Section 101. Burden of Proof- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
[Emphasis Supplied] In this regard, it has been held in the recent landmark judgement of the Hon'ble Apex Court in the case of Smriti Debbarma (Dead) Through LRs V. Prabha Ranjan Debbarma & Ors [Civil Appeal no. 878 of 2009; Janaury 04, 2023] that, The onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit.
It has been further observed as follows:
Suit No.612694/2016 S.B. Gupta Vs. DDA Page-29/32 30 "31. The burden of proof10 to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule 'A' property if she had discharged the burden to prove the title to the Schedule 'A' property which Suit No.612694/2016 S.B. Gupta Vs. DDA Page-30/32 31 squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed (...)."
[Emphasis Supplied] Hence, in view of the above, the issues no. (1), (2) and (3) are decided against the plaintiff and in favour of the defendant.
24.W.r.t. issues no. (4):-
4). Whether the plaintiff is entitled to the compensation, if so, then how much? OPP With regard to issue no. (4), it is pertinent to mention that, this issue was framed vide order dated 15.05.2013 on the basis of the amended plaint dated 28.10.1999 which was taken on record 05.01.2000. However, another corrected and final plaint was placed on record which was taken on record vide a detailed order of the learned predecessor court dated 13.02.2020. It is further pertinent to mention that, in the said corrected and final plaint no relief of compensation has been sought by the plaintiff neither the suit has been valued in this nor the court fee has been affixed. Further, it is pertinent to mention that, in the light of the issue wise finding as above-mentioned w.r.t to issue Suit No.612694/2016 S.B. Gupta Vs. DDA Page-31/32 32 no.1, 2 and 3; this Court is of the opinion that, the plaintiff is not entitled to the relief of compensation.
Therefore, issue no. (4) is decided against the plaintiff and in favor of the defendant.
25.(8) Relief - In view of the findings given on issues no.(1) to (7), documents placed on record, pleadings of the parties and evidence led by the parties, cross-examination of the witnesses, the plaintiff has grossly failed to prove his case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Parties are to bear their own costs.
The costs imposed upon any party during the course of proceedings and not paid by the said party be recovered as per rules from the said party.
Thereafter, decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities.
DISHA Digitally signed by DISHA SINGH SINGH Date: 2023.09.25 17:27:39 +0530 (This judgment contains 32 pages and each page has been signed by the undersigned) (DISHA SINGH) Civil Judge-02, West, Announced in the open Court Tis Hazari Courts, Delhi on 25.09.2023 Suit No.612694/2016 S.B. Gupta Vs. DDA Page-32/32