Delhi High Court
Delhi Development Authority vs Suri & Suri Private Ltd. on 13 December, 1994
Equivalent citations: 57(1995)DLT129, (1995)110PLR5
JUDGMENT Devinder Gupta, J.
(1) ADMIT.COUNSEL for both the parties agree that the petition be heard and disposed of today itself.
(2) The petitioner feeling aggrieved against some observations made in an order passed on 13.9.1993 by the Additional District Judge, Delhi while dismissing its appeal and affirming an order passed on 26.9.1992 by Shri D.S. Pawaria,Sub Judge, Delhi has questioned the same in this petition filed under Article 227 of the Constitution of India.
(3) A preliminary objection was raised by learned Counsel for the respondent as regards maintainability of the petition for quashing the order in proceedings under Article 227 of the Constitution of India due to other adequate And efficacious remedy available namely a revision petition under Section 115 of the Code of Civil Procedure.
(4) A suit was filed against the petitioner by the respondent for grant of a decree of injunction. Along with the suit an application for interim relief under Order 39 Rules 1 & 2 of the Code of Civil Procedure was filed seeking temporary injunction against the petitioner restraining it from dispossessing the respondent otherwise than in due course of law. Two similar suits were also filed in which similar applications were made. Three applications were heard and decided bya common order passed on 26.9.1992. Applications under Order 39 Rules 1 & 2were allowed. Petitioner was restrained from taking forcible possession of the suit property and from dispossessing the respondent without due process of law till disposal of the suit. Feeling aggrieved, it is not disputed, that three separate appeals were preferred by the petitioner. The Appellate Court on 13.9.1993 while concurring with the findings of the Trial Court held 'that the Trial Court had rightly allowed the respondent's application and had rightly granted relief against forcible entry by the petitioner. While dismissing the appeal in the concluding para the learned Additional District Judge observed that the petitioner had got no right to re-enter the property by force. It can re-enter the property by obtaining a decree of possession from the Court like any other ordinary citizen. There is no special law giving right to D.D.A. to force its entry in the property. The petitioner has felt aggrieved against these observations made in the last para of the impugned order that in case appeal was to be dismissed, it ought to have been dismissed as such without making these observations. No order could have been made in these proceedings as to the remedy which can be availed of by the petitioner. What course is to be adopted by the petitioner for re-entering the property was not the subject matter of issue. The Trial Court was right in ordering that the respondent should not be dispossessed otherwise than in due course of law. Appellate Court also while dismissing the appeal ought to have held so that respondent be not dispossessed otherwise than in due course of law.
(5) On hearing Counsel for the parties I find much force in the submissions of learned Counsel for the petitioner and do not agree with the preliminary objection raised by the respondent that for the relief claimed a petition under Article 227 of the Constitution would not be the proper remedy. It was the petitioner's appeal which was under consideration before the lower AppellateCourt. The lower Appellate Court came to the conclusion that the same deserved to be dismissed. Lower Appellate Court while dismissing the appeal ought to have confined itself to the facts and issue before him. Observations as made in the last para of the order that petitioner can re-enter the property only by obtaining a decree of possession from a Civil Court like any other ordinary citizen ought not to have been made since this was not one of the issues for determination before the lower Appellate Court. The only issue which was relevant and ought to have been decided by the lower Appellate Court was as to whether the order passed by the Trial Court granting injunction in favor of the respondent was proper cr not. The Trial Court came to the conclusion that the respondent was in possession and could not be dispossessed otherwise than in due course of law and accordingly while allowing the application restrained the petitioner from interfering with the respondent's possession otherwise than in due course of law. What would be the legal mode which could be adopted by the petitioner in re-entering the property was not the subject matter of an issue. As such the lower Appellate Court was not justified in making such an order which would confine the petitioner to resort to the remedy of filing civil suit only. The question whether the legal mode adopted by the petitioner to dispossess the respondent is a due process of law or not will be a subject matter for adjudication only during the proceedings as and when the same are resorted to by the petitioner.In these proceedings even the respondent's case has been that he cannot be dispossessed otherwise than in due course of law. Since the petitioner had not felt aggrieved against the ultimate order of dismissal of its appeal, but only against certain observations only which had the effect of curtailing its right to resort to other legal proceedings, other than a civil suit, the only manner in which the same could be agitated would be by a petition under Article 227 of the Constitution of India and not by way of revision.
(6) Another submission made by Counsel for the respondent that the petitioner has challenged the order in one of the three cases only and not in theothers, therefore, the petition deserves dismissal has also no force. In case the order has not been challenged in the other case it might be binding on the parties in those proceedings. Learned Counsel for the petitioner, however, states that in the other two cases limitation is still available for challenging the order since copy was not made available and the order will be challenged.
(7) In view of the above, the petition deserves to be allowed which accordingly is allowed. The observations made in para 6 of the order passed on 13.9.1993 by the Additional District Judge to the effect that "DDA can re-enter the property by obtaining a decree of possession from the Court like any other ordinary citizen" is hereby quashed and set aside and it is made clear that during the pendency of civil suit respondent's possession shall not be disturbed otherwise than in due course of law.