Delhi District Court
Memo Of Parties vs Land & Development Officer on 23 December, 2015
IN THE COURT OF Sh. DEEPAK SHERAWAT, CIVIL JUDGE10
(CENTRAL)/DELHI
SUIT NO. 366/14
Unique ID No. 02401C1241672008
MEMO OF PARTIES
Sh. K.N. Dawar,
S/o. Late Sh. Hari Narain Dawar,
R/o. H.No. 229, Raja Garden, New Delhi
......Plaintiff
Versus
1.Land & Development Officer, Govt. of India Ministry of Development, Land & Development office, Nirman Bhawan, New Delhi
2. Rajinder Kumar Dawar, S/o. Late Sh. Hari Narain Dawar R/o. H.No. E75, Mansarovar Garden, New Delhi
3. Mohinder Pal Dawar, S/o. Late Sh. Hari Narain Dawar R/o. H.No. A17, Brij Vihar, Sahibabad, Uttar Pradesh
4. Rajni Bhai W/o. Anil K. Bhai S/o. Late Sh. Hari Narain Dawar R/o. H.No. 88, Sector9, Panchkula, Haryana.
5. Davinder Dawar S/o. Late Sh. Hari Narain Dawar R/o. J3/10, Khirkhi Extension, New Delhi.
Suit no. 366/14 K.N. Dawar Vs. Land and Development office 1/12
6. Parveen Dawar, S/o. Late Sh. Hari Narain Dawar R/o. H.No. 370, GH13, First Floor, Paschim Vihar, New Delhi
7. Late Sh. Charanjit dawar (Deceased) S/o. Late Sh. Hari Narain Dawar, Through Legal Representatives:
a. Parvesh Dawar, W/o. Late Sh. Charanjit Dawar, R/o. GG1/65, DDA Flats, Vikas puri, New Delhi b. Ritu Malhotra D/o. Late Sh. Charanjit Dawar, R/o. H.No. 177, Raja Garden, New Delhi c. Akhil Dawar, S/o. Late Sh. Charanjit Dawar, R/o. GG1/65, DDA Flats, Vikas puri, New Delhi d. Nikhil Dawar, S/o. Late Sh. Charanjit Dawar, R/o. GG1/65, DDA Flats, Vikas puri, New Delhi .......Defendants Date of institution of Suit: 27.09.2008 Date on which judgment was reserved: 29.10.2015 Date of pronouncement of Judgment: 23.12.2015 SUIT FOR PERMANENT AND MANDATORY INJUNCTIONS AND RECOVERY OF MONEY ALONG WITH FUTURE INTERESTS AND PENDENTE LITE Suit no. 366/14 K.N. Dawar Vs. Land and Development office 2/12 Judgment
1. This judgment shall decide the plaintiff's suit for recovery and permanent and mandatory injunction.
2. The material facts of the case as per the plaint are that the plaintiff and the defendant no. 2 to 7 are sons and daughter of Sh. Hari Narain Dawar who expired on 05.06.1982. Wife of Sh. Hari Narain Dawar had also expired on 29.09.1976. Sh. Hari Narain Dawar was owner of the suit property no. 1/4, Kirti Nagar, Industrial Area, New Delhi and after his death the suit property devolved upon his legal heirs namely plaintiff and defendants 2 to 7. The defendant no. 1 with an object of widening the road acquired a portion ad measuring 30 sq. feet of the suit property. Defendant no. 2 moved the Hon'ble High Court of Delhi by filing a writ petition against acquisition of suit property and dispossession. He subsequently filed a suit for declaration and injunction in the Hon'ble High Court of Delhi against Union of India and MCD which case was subsequently transfered to District Court where it was dismissed for not being maintainable vide order dated 03.05.2005 passed by Sh. H.S. Sharma, Ld. ADJ. Against this order, defendant no. 2 filed a regular first appeal in the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi partial allowed the appeal and remanded back the matter with the direction to defendant no. 1 to release 50% of the compensation amount to the defendant no. 2 during the pendency of the suit and the remaining 50% of compensation was to be released according to the decision of the suit. In contempt case no. Suit no. 366/14 K.N. Dawar Vs. Land and Development office 3/12 985/05 in abovesaid in regular first appeal in the Hon'ble High Court of Delhi in its order dated 14.03.2006 recorded the fact of the payment of the entire 50% of the compensation amounting of Rs. 5,15,038/. However the defendant no. 2 never gave the plaintiff his share of the compensation amount. Later on, on the final disposal of the Civil Suit, a further sum of Rs. 2,00,000/ with interest of 6% was decreed. The plaintiff requested the defendant no. 2 to pay him his share of compensation but he refused, though being a legal heir of Late Hari Narain Dawar the plaintiff is entitled to 1/7 th portion of the total amount of compensation.
3. Written statements were filed on behalf of the defendant no. 1 and defendant no. 2. Defendant no. 1 in his written statement has stated that the suit is not maintainable in view of article 299 of the Constitution of India and also being time barred. On merits, the defendant no. 1 denied the allegations of the plaintiff and has referred to the directions of the Hon'ble High Court of Delhi passed on 20.07.2005 in regular first appeal no. 356/05 whereby defendant no. 1 was directed to release 50% of the compensation amount to the defendant no. 2. Defendant no. 2 in his written statement has stated that other legal heirs of Late Hari Narain Dawar has relinquished their rights in respect of the suit property in favour of the defendant no. 2. He has further stated that the plaintiff has sold the family property situated at Gujjarwalan, New Delhi in the year 1990 and has kept to himself the entire sales proceeds of Rs. 1,95,000/.
3. On the basis of the pleadings following issues were framed:
Suit no. 366/14 K.N. Dawar Vs. Land and Development office 4/12 i. Whether the plaintiff is entitled to decree of recovery of Rs. 1,07,103.63/ as prayed? OPP ii. Whether the plaintiff is entitled to pendentelite and future interest, if yes, at what rate? OPP iii. Whether the plaintiff is entitled to a decree of Permanent Injunction as prayed for? OPP iv. Whether the plaintiff is entitled to a decree of Mandatory injunction as prayed for? OPP v. Whether the defendant no. 2 is entitled to recovery of money as claimed in para 5 to 9 of the preliminary objection of written statement filed by the defendant no. 2? OPD2 vi. Whether the suit of the plaintiff is time barred? OPD vii. Whether the suit of the plaintiff is not maintainable? OPD viii. Relief
4. The plaintiff has examined only one witness i.e. plaintiff himself as PW1. He has reiterated and reaffirmed the facts of the plaint. He has been cross examined. Thereafter, plaintiff close his PE. Thereafter, defendant no. 1 produced the evidence and examined only one witness only one witness DW1 who has supported the defence stated in the written statement by his affidavit in evidence. He was cross examined. Other defendants did not lead any evidence. Thereafter defendant close his DE.
5. Thereafter final arguments were advanced by the counsel for the parties. I have heard the arguments and perused the record. Suit no. 366/14 K.N. Dawar Vs. Land and Development office 5/12
6. My issuewise findings are as follows:
ISSUE NO. 1
Whether the plaintiff is entitled to decree of recovery of Rs. 1,07,103.63/ as prayed? OPP
7. The plaintiff carried the onus to prove this issue. He is the only witness appearing from his side. Not much documentary evidence has been relied upon by him to substantiate his claim of recovery against the defendants. The only documents proved by him is the legal notice dated 12.06.2008 and postal receipts which have respectively been exhibited as Ex.PW1/5 and Ex.PW1/6. Other documents were deexhibited by him when he tendered his affidavit Ex.PW1/A by way of evidence. What remains thereafter is his oral testimony which is not supported by any other oral or documentary evidence.
8. His testimony does not prove anything to show that he is entitled to recover any amount from the defendants. To start with, there is no evidence, or for that matter any plea, that the plaintiff ever applied for any compensation to defendant no. 1. There is no denying the fact that the defendant no. 1 acquired certain portion of the property belonging to the father of the plaintiff and he, being one of the legal heirs after the demise of his father, must be recompensed by defendant no. 1 for loss suffered. He is certainly entitled to get his share of the compensation from the defendant no. 1. But it seems that the plaintiff desires to secure the compensation without asking for it from the concerned authority, i.e. defendant no. 1 and without fulfilling the legal Suit no. 366/14 K.N. Dawar Vs. Land and Development office 6/12 requirements for award of compensation. Indeed, there is no cause of action in favour of the plaintiff and against the defendant no. 1 in that he has never applied for compensation and defendant no. 1 has never denied his right to receive the same. The plaintiff would have done well to first approach defendant no. 1 before coming to the court.
9. Again, the plaintiff has failed to prove any liability on the part of the defendant no. 2 to pay him money from the compensation received by the latter. It is an admitted case that only 50% of the compensation has been released to the defendant no. 2 and the same has been released only in accordance with the directions issued by the Hon'ble High Court of Delhi on 11.05.2006. The plaintiff has never been a party to any litigation either in the Hon'ble High Court or in the District Court. It cannot be said, by any stretch of imagination, that the 50% amount of compensation released to the defendant no. 2 was wrongly and fraudulently released because as stated hereinabove same was released only in pursuance of the directions of the court.
10. In any case, the plaintiff is seeking only his share of the compensation which as per his own claim, comes to 1/7th share of the entire compensation. The defendant no. 1 has released only 1/2nd portion of the entire compensation money to the defendant no. 1 and another half portion of the compensation amount is yet to be released. In these circumstances, it cannot be held that only that share of the compensation which has been so far released consists of the share of the plaintiff. The plaintiff can be reimbursed from the portion of compensation which is still in the hands of the defendant no. 1, but only if the Suit no. 366/14 K.N. Dawar Vs. Land and Development office 7/12 plaintiff bothers to reach up defendant no. 1 and complete the formalities.
10. Defendant has no duty towards the plaintiff to pay to him the compensation amount which the former has received only after going through the rigor morale of judicial proceedings. Defendant no. 2 has not received any money from the plaintiff which he is obliged to return to him. A recovery can be effected for a money from debtor in consequence of his default made by him when he has vouched to return it. A recovery suit can be filed to recover money in different modes: I. Simple recovery in case where there are no contract or agreement. II. Order 37 CPC for recovery of money/debt in the cases where thee are any written contract, dishonoured cheque, bill of exchange, hundies and promissory notes, in which the parties seeks only to recover a debt or liquidated demand in money payable by the opposite party/defendant with or without interest.
III. On the basis of on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of debt other that a penalty.
IV. On the basis on a guarantee, where the claim against the principal is in respect of debt or liquidated demand only.
11. The case of the plaintiff does not fall within any mode. As it happens, there is no privity of any sort between the plaintiff and defendant so as to render the latter liable to pay any money to the former. There is no contract or agreement, oral or written, between them. The plaintiff has done no act of Suit no. 366/14 K.N. Dawar Vs. Land and Development office 8/12 reciprocity warranting any kind of recovery from the defendant. There is nothing to show that the defendant no. 2 has done something wrong towards plaintiff making himself liable for damages. The plaintiff is, of course, entitled to recover amount of compensation on the basis of enactment because his property has been acquired by the Government authority, but then recovery is to be effected from the concerned department which in this case is defendant no. 1 and not from the defendant no. 2. the plaintiff can get his portion of compensation money from the defendant no. 1 since 50% of the amount is still lying with it. The plaintiff has sought recovery from the defendant no. 1 and defendant no. 2 jointly or severally. However there is no relation existing between the defendants so as to render them jointly or severally liable to recovery.
Thus plaintiff is not entitled to any decree for recovery of money. This issue is decided against the plaintiff.
ISSUE NO. 2
Whether the plaintiff is entitled to pendentelite and future interest, if yes, at what rate? OPP
12. The onus to prove this issue was on the plaintiff. In view of the decision on issue no. 1 the plaintiff is not entitled to any pendentelite and future interest. This issue is decided in favour of the defendant and against the plaintiff. ISSUE NO. 3 & 4
Whether the plaintiff is entitled to a decree of Permanent Injunction as prayed for? OPP Suit no. 366/14 K.N. Dawar Vs. Land and Development office 9/12 And Whether the plaintiff is entitled to a decree of Mandatory injunction as prayed for? OPP
13. The onus to prove these issues was on the plaintiff. A remedy of injunction can be granted to a party to protect his legal right from violation. In the present case, defendant no. 1 is a Government Authority who has the function and responsibility to award compensation in lieu of the land or property acquired for any public purpose. An injunction against a public authority to restrain it from performing its statutory functions can rarely be granted. The plaintiff in the present case has never approached the defendant no. 1 to get his share of the compensation and yet by present suit he desires to put a curb upon defendant no. 1 to prevent it from carrying out its functions i.e. to release the amount of compensation. Moreover, the plaintiff is also sought directions in the form of an injunction to the defendant no. 1 to release his share of the compensation, though the defendant no. 1 has never refused to give his share of compensation to him. As such, there is no infringement of any legal right vested in the plaintiff and no occasion for grant of any injunction arose. In order to obtain an order of injunction, the plaintiff is required to prove a strong case in his favour which the plaintiff has failed to do in the present case. A permanent injunction can be granted to prevent the breach of an obligation, express or implied, existing in favour of the plaintiff and the conduct of the plaintiff is very much relevant for the purpose. In the present case, the plaintiff has never applied for release of any compensation to the defendant Suit no. 366/14 K.N. Dawar Vs. Land and Development office 10/12 no. 1. Nor did he ever make any attempt to challenge or participate in the legal proceedings instituted by defendant no. 2 and therefore the plaintiff has precluded himself by acquiescence from disputing the release of compensation to the defendant no.2 by the defendant no. 1. In these circumstances, the plaintiff is not entitled to any injunction. These issues i.e. 3 & 4 are decided in favour of the defendant and against the plaintiff.
ISSUE NO. 5
Whether the defendant no. 2 is entitled to recovery of money as claimed in para 5 to 9 of the preliminary objection of written statement filed by the defendant no. 2? OPD2
14. The onus to prove this issue was on the defendant no. 2. However defendant no. 2 has not filed any counterclaim or set off therefore he is not entitled to recovery of money as claimed in para 5 to 9 of the preliminary objection of written statement filed by the defendant no. 2. This issue is decided in favour of the plaintiff and against the defendant no. 2. ISSUE NO. 6
Whether the suit of the plaintiff is time barred? OPD
15. The onus to prove this issue was on the defendant. On behalf of the defendant only one witness has been examined and it is defendant no. 1. Defendant no. 2 has not produced any evidence. In all, there is no evidence to show whether the suit of the plaintiff is time barred. Suit no. 366/14 K.N. Dawar Vs. Land and Development office 11/12 This issue is decided in favour of the plaintiff and against the defendant. ISSUE NO. 7
Whether the suit of the plaintiff is not maintainable? OPD
16. The onus to prove this issue was on the defendant. On behalf of the defendant only one witness has been examined and it is defendant no. 1. Defendant no. 2 has not produced any evidence. In all, there is no evidence to show whether the suit of the plaintiff is not maintainable. This issue is decided in favour of the plaintiff and against the defendant. ISSUE NO. 8
RELIEF
16. In view of the decision on issues no. 1, 2 and 3 the plaintiff is not entitled to decree of recovery or injunction. Cost of the suit is awarded to the defendant. Therefore the suit is dismissed.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court (DEEPAK SHERAWAT)
On 23.12.2015 CJ10 (Central)/Delhi
Suit no. 366/14 K.N. Dawar Vs. Land and Development office 12/12