Delhi District Court
Dharmender Kumar vs The Commissioner on 17 December, 2020
IN THE COURT OF MS. NITI PHUTELA
SENIOR CIVIL JUDGERENT CONTROLLER, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Case (RCA) no. 3/19
Dharmender Kumar
S/o Late Ram Prasad @ Shiv Prasad
R/o Juggi/ Thadda Adjacent to C6,
Safdarjung Development Area (S. D. A).
Opposite IIT Gate Market,
Hauz Khas, New Delhi110016
....... Appellant
Versus
1. The Commissioner,
South Delhi Municipal Corporation
(South Zone), Green Park, Civic Cenre,
Dr. S. P. Mukherjee Marg, Mino Road,
New Delhi110001.
2. Daljeet Singh
S/o Late Sh. Balwant Singh,
Secretary, Sarfdarjung Development Area,
Commercial Centre Welfare Association (Regd.).
R/o C18/16, SDA,
New Delhi110016
.......... Respondents
APPEAL UNDER ORDER 96 OF CPC FOR SETTING ASIDE THE
JUDGMENT DATED 19.09.2019 PASSED BY THE COURT OF LD.
CIVIL JUDGE, DELHI (WEST)02 IN SUIT NO. 7721/16
Date of Filing of Appeal : 16.10.2019
Date of Conclusion of Argument : 17.12.2020 (prelunch)
Date of Pronouncement of Order : 17.12.2020 (postlunch)
Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 1 of 10
ORDER
1. The appellant/plaintiff (henceforth 'appellant') has filed the present appeal under Section 96 of CPC, 1908, challenging order dated 19.09.2019 passed by the court of Ld. Civil Judge, Delhi (West)02 (henceforth 'Ld. Trial Court') in suit No. 7721/2016 in case titled "Dharmender Kumar Vs. The Commissioner, SDMC & Anr". (henceforth 'subject suit'). Vide said order, the suit was dismissed under Order 12 Rule 6 of CPC on the basis of admissions which had come on record.
2. In order to sustain the challenge qua the impugned order and decree, the appellant has interalia pleaded in the present appeal that the ld. Trial court misapplied the ratio of judgment in case titled Abha Tyagi Vs. Union of India (FAO No. 161/2004 decided on 15/11/2010), Rajinder Kakkar Vs. DDA, 1994 (1) AD (Delhi) 432 by ignoring the fact that the said judgments are not applicable to the present case; that the plaintiff/appellant is in possession of the suit property for more than 40 years which is an adverse possession and is uninterrupted. Reliance is placed upon the judgment of the Hon'ble Supreme Court of India in case titled Ravinder Kaur Grewal & Ors Vs. Manjit Kaur & Ors, Civil Appeal no. 7764 of 2014; that the suit was dismissed under Order 12 Rule 6 of CPC even though the issues were framed and the suit should have been disposed off after fullfledged trial; that as such, there was no admission either express or implied on the part of the appellant to the Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 2 of 10 claim of respondent; that no alternate land was ever offered or given to the appellant in lieu of the said land; that no show cause notice was ever issued to the appellant by any authority, hence he cannot be forcibly evicted except under due process of law.
3. Hence, it has been prayed that appeal may be accepted and aforesaid order dated 19.09.2019 may be set aside.
4. Arguments were addressed by Sh. Abhay Kumar, ld. counsel for the appellant; Sh. Udian Sharma and Ms. Kartika, ld. counsels for respondent no.1 and Sh. Siddharth, ld. counsel for the respondent no.2.
5. After considering the submissions made by the Ld. Advocates for both the sides, I find that in order to effectively adjudicate upon this appeal, this Court is only required to examine whether there is any infirmity/perversity in the impugned order dated 19.09.2019, which makes it necessary for this Court to modify or set aside the same. In respect of the aforesaid aspect, I have perused the impugned order dated 19.09.2019 and the record of the Ld. Trial Court. Upon perusal thereof, I find that there is no infirmity/perversity in the impugned order dated 19.09.2019, which makes it necessary for this Court to modify or set aside the same.
6. The main contention of the appellant is that his possession is continuous possession in the suit premises, therefore, he cannot be forcibly evicted. In this context, the ld. Trial court has rightly relied upon judgments in cases titled Abha Tyagi Vs. Union of India (supra) and Rajinder Kakkar Vs. DDA (supra) in which it is Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 3 of 10 opined that the encroacher/trespasser has no right to seek injunction against the true owners. Appellant/plaintiff has not described and specified that how and why the ratio of cases cited by the ld. Trial Court is not applicable to the facts of the present case. In absence of specific averments, said ground has no substance.
7. Moreover, the plea of adverse possession is taken for the first time in the present appeal. No such plea was ever taken before the ld. Trial Court. Rather, the fact of continuous, uninterrupted and settled possession was alleged. Hence, the said plea of adverse possession cannot be considered at this stage. Thus, judgment of Ravinder Kaur Grewal (supra) has no applicability.
8. Another, grievance of appellant was that as the issues were framed, therefore, there was requirement of deciding the case on merits after fullfledged trial and not by invoking the jurisdiction of the court under Order 12 Rule 6 of CPC.
9. There are only four ways of deciding a suit. They are as follows:
(i) By passing final judgment on merits after conclusion of evidence;
(ii) By framing preliminary issue and then deciding the case;
(iii) By way of rejection of plaint; &
(iv) By way of passing judgment under Order 12 Rule 6 of CPC.
10.Order 12 Rule 6 of CPC deals with judgment on admission. In this regard it is first relevant to mention the provisions of Order 12 Rule 6 of CPC. It is reproduced below: Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 4 of 10 "Order 12 Rule 6 of CPC - Judgment on admissions: (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing the Court may at any stage of the suit , either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under subrule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
11.Thus, in view of the abovesaid provisions, it is clear and evident that the provisions under Order 12 Rule 6 of CPC can be invoked by court at any stage; suo moto i.e without filing of any application by any party and without waiting for determining any other question between the parties, i.e without deciding the issues between parties.
12.Though, there is some substance in the version of ld. counsel for the appellant that considering the stage at which the impugned order has been passed i.e. when the defendants' evidence was proceeding and was almost complete, ld. Trial Court should have ideally decided the matter by deciding all the issues after scrutiny of the evidence led, however, there was no bar on the part of ld. Trial Court to decide the case on the basis of admissions which had allegedly come on record in pleadings or testimonies of parties. Hence, no illegality has been Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 5 of 10 conducted by adopting the said route for disposal of the case and no prejudice has been caused to appellant by following the said procedure.
13.It is further the version of the appellant that there are no admissions to the claim of respondents. At this stage, it is relevant to mention the judgment in case titled Prem Narain Misra vs Faire Brothers Export And Import Ltd, RFA (OS) No. 1/2005, wherein Hon'ble High Court has laid down in para no. 17: The very objective and purpose in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. Such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case.
14.Therefore, admissions can be constructive or implied and need not be express. In the case in hand, it has been rightly discussed by the ld. Trial Court that PW1 admitted in his crossexamination that he was Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 6 of 10 not having any allotment letter, sale deed or any other title documents in respect of the jhuggi in question. He also admitted that even his predecessors had no such documents available with them. Thus, it is an implied admission that there is no right/title/interest of plaintiff in the suit property. There is no dispute regarding the possession of the plaintiff because he relied upon copy of the ration card or bank passbook, etc. However, the ld. Trial Court rightly pointed out that he has not clarified regarding the nature of his possession in the suit property. Thus, ld. Trial Court has rightly relied upon the judgments in case titled Abha Tyagi Vs. Union of India (supra) and Rajinder Kakkar Vs. DDA (supra) correctly as there was unequivocal and unambiguous admissions on the part of PW1 regarding having no right over the suit property. Therefore, there was no impediment on the part of the ld. Trial Court to pass a decree on the basis of said admission. Hence, in the opinion of this court, there is no infirmity or any illegality committed on the part of the ld. Trial Court by deciding the suit without deciding the issues or by passing decree on the basis of admissions.
15.As far as the version of the appellant that he can be evicted only after following "due process of law". In this context, it is relevant to understand the meaning of phrase "due process of law". Reliance is placed upon the judgment of the Hon'ble Supreme Court of India in case titled 'Thomas Cook (India) Limited Vs. Hotel Imperial & ORs., 127 (2006) DLT 431 wherein it has been held as under:
"28. The expressions `due process of law', Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 7 of 10 `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this `due process process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 8 of 10 court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. "
16.In view of the abovesaid judgment, it is clear and apparent that the 'due process of law' means when the court adjudicating over the contentions and rival contentions of the parties has given opinion on their rights after adjudication the requirement of 'due process' is satisfied. It is not material that which party has approached the court. Therefore, in the present matter, ld. Trial Court has duly adjudicated over the contentions of the plaintiff/appellant regarding the fact whether he is entitled to claim in relief or not and it is not that respondents will have to file a separate suit for seeking the possession.
17.Further, it is also aptly recorded in the order of the ld. Trial Court that no policy for providing alternate site was produced during the proceedings. Hence, even the said relief was rightly not granted to plaintiff/appellant by Ld Trial Court.
Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 9 of 10
18.As far as the contentions of the appellant that no prior show cause notice was given by the SDMC, in this respect, Ld Counsel for respondent no.1 has rightly stressed upon the provisions under Section 321/322 DMC Act, 1957 clarifying that there is no requirement of issuance of any notice in case of removal of the encroachment. In view of the admission of PW1, it is clear as already stated above that his possession is that of the encroacher and/or trespasser. Therefore, there is no requirement of giving any notice on part of the respondent no.1.
19.Therefore, in view of the abovesaid discussion, I find that there is no infirmity/perversity in the impugned order dated 19.09.2019, which makes it necessary for this court to modify or set aside the same. The impugned judgment/order and decree cannot be set aside. The appeal stands dismissed with costs. The judgment/order and decree in suit no. 7721/2016 on the file of Ld. Civil Judge, Delhi (West)02 is hereby affirmed. Decree be prepared accordingly.
20.Copy of this order alongwith TCR be sent back. Record of appeal be consigned to record room after due compliance.
(Announced in the open court) (NITI PHUTELA) On 17th December, 2020 SCJ (SOUTH)/ SAKET COURTS NEW DELHI Case (RCA) no. 3/19 Dharmender Kumar Vs. The Commissioner, SDMC & Anr. Page no. 10 of 10