Delhi District Court
Delhi Urban Shelter Improvement Board vs Smt. Asha Devi on 9 May, 2018
In The Court of Sh. Sanatan Prasad,
Additional District Judge01, (East),
Karkardooma Courts, Delhi.
RCA No. 01/17
In the matter of :
Delhi Urban Shelter Improvement Board,
(The then Slum and JJ, MCD),
Vikas Bhawan, I.P.Estate,
New Delhi. .....Appellant/Defendant
Versus,
Smt. Asha Devi,
W/o Sh. Bishan,
R/o 12/421, Kalyanpuri, Delhi91. .....Respondent/Plaintiff
Date of Institution : 26.12.2016
Date of Reserving Order : 28.04.2018
Date of Decision : 09.05.2018
Present : Sh. Ankur Jain, ld. counsel for appellant.
Sh. K.A.Ali, ld. counsel for respondent.
JUDGMENT
1. This is an appeal, directed against the impugned judgment and decree, dated 12.08.2016, passed by the court of Shri Gagandeep Singh, the then Ld. JSCC/ASCJ/GJ, East, KKD, Delhi, vide which, the Ld. Trial Court, had decreed the suit of the respondent/the then plaintiff.
2. Feeling aggrieved with the impugned judgment and decree, the appellant/defendant has filed the present appeal.
RCA No.01/17Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.1
3. The appellant has challenged the impugned judgment and decree on various grounds, interalia that ld. Civil Judge, believed the contention of respondent to be true with regard to allotment letter, Ex.PW1/6, issued by DDA, as per order passed by Vice Chairman, on 24.06.1976, especially, when DDA itself has stated in its reply to RTI, filed by respondent that there is no record of creating the post of OSD, JJ, which was not found in their department, vide Ex.PW1/L; That record of suit property is very old, that is why, PW4&5 were called from the department of appellant and DDA also stated that no record of suit property could be found in their respective offices; That ld. Civil Judge wrongly opined that appellant has never put any question mark over letter Ex.PW1/6 by stating it in para no. 1 of its written statement as matter of record, which is a clerical/typographical error and could not be noticed by the appellant, during proceedings held in the court below; That the appellant's stand, since beginning was that suit property is a model house and same can never be allotted to anyone including respondent, which fact was not appreciated by the Ld. Trial Court and the document Mark'X', relied on by the appellant must not have been disbelieved by the Ld. Trial Court, as the original of the same alongwith site register could not be traced at the time, but, now same has been traced in original file, as it was lying with its Vigilance Department; That DDA was wrongly deleted from array of the parties, as it was for DDA to prove that when they handed over the record of the suit property including alleged allotment letter, bearing No.EO(L)/PA/Mis/3/76, dated 24.06.1976 to the RCA No.01/17 Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.2 appellant, because the record transferred by DDA, does not show the letter Ex.PW1/6; That the letter Ex.PW1/6 itself is very suspicious sui generis document, and has never been proved by the respondent, as per law.
4. Notice of the appeal was issued to the respondent, who has put her appearance through counsel and has filed reply to the Memorandum of Appeal, thereby denying the averments made therein, and prayer is made for dismissal of appeal with costs. Alongwith appeal, an application U/o 41 rule 27 R/w/S 151 CPC, for bringing on record additional documents, has also been moved, on the grounds, as stated therein and already delineated hereinas above, and replying, thereto, the respondent denied all the averments, and prayer is made for its dismissal with costs; Further, an application U/o 41 rule 3A R/w/S 151 CPC, for condonation of delay of 106 days, in filing the appeal, has also been moved, on the grounds, as stated above, and replying, thereto, the respondent denied all the averments, and prayer is made for its dismissal with costs.
5. I have heard ld. counsels for the parties and perused the record, also written arguments, submitted by the parties. Record of the trial court has also been requisitioned and perused.
6. The present appeal, has been filed, by the appellant, on 26.12.2016, i.e. after expiry of the prescribed period of limitation for preferring an appeal, i.e. 30 days, as the impugned judgment RCA No.01/17 Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.3 and decree was passed on 12.08.2016 and appeal should have been filed by 11.09.2016, therefore, there appears a delay of 106 days, but it further appears that a period of 24 days was consumed in obtaining certified copies of the judgment and decree in the matter, and as such, this period of delay can easily be explained, yet, there remains to be another span of 82 days of delay, to be explained on daytoday basis, by showing 'sufficient reason' once the limitation commences. The expression 'sufficient reason' has been clearly explained by their lordships of Hon'ble Supreme Court, in case of Balwant Singh v. Jagdish Singh AIR 2010 S.C. 3043, by observing that approaching to the court with unclean hands, itself is a ground for rejection of the application U/s 5 of the Indian Limitation Act. It was further held that there should be a 'sufficient cause' for condonation of delay and delay should not be on account of dilatory tactics, want of bonafide, deliberate inaction or negligence; Similarly, in case of, Collector of Central Excise Madras v. M. Md. Bilal and Company (2000) 10 S.C.C. 63, their lordships of Hon'ble Supreme Court, was pleased to dismiss the application for condonation of delay, in view of absence of satisfactory or cogent explanation for delay then it may not be an appropriate case for condonation of delay; Again, their lordships of Delhi High Court, in case of Deepali Sharma v. Federal Bank Ltd. RFA No.112/2010, was pleased to dismiss the application for condonation of delay in view of the vague averments, negligence, and in view of absence of 'sufficient cause' and lackadaisical approach of the litigant in pursuing the appeal.
RCA No.01/17Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.4 The cause shown by the appellant, for delay in filing of the appeal, is that the original of the document, sought to be relied on by it, as Mark'X' alongwith site register could not be traced, at that time but, now same has been traced, as the file was lying with its Vigilance Department, and now the original of the document, sought to be admitted, as additional document/evidence, under the application, U/o 41 rule 27 CPC, has already been clearly looked into by the Ld. Court Below, in its impugned judgment and relevant portion of paragraph No.23, reading as under : "23.....The only document provided by defendant No.2 to support their case is mark X,(Misnumbered and document appears to have been numbered as mark 'A' on the TCR and not as mark 'X'). The said document even though not proved as per law but even keeping aside the objection, it does not prove the defence of defendant herein. The document mark X has been prepared on 15.04.2001? (or 15.03.2001), wherein the sample houses were transferred to the DUSIB which includes the suit property herein. The first and second floor of the suit property could not be sealed due to the unavailability of police force."; Further, paragraphs No.24 & 25 also follows as under : "24. Admittedly, the plaintiff herein is residing in the suit property since the year 1976 and for the first time, the said plea of suit property being a sample house came to be raised by defendant No.2 only in the year 2001. The said report does not clearly clarify as to the basis of the said plea of it being a sample house. The plea of suit property being a sample house must have been recorded at the time of construction which appears to be somewhere in the year 1976 and RCA No.01/17 Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.5 record in this regard should have been produced by the defendant No.2 herein."
"25. The document Mark A also talks about one another letter dated 05.03.2001 which too was also not been produced despite it being official document and within the possession of defendant No.2 herein. The statutory authorities i.e DDA and defendant No.2 both failed to produce any relevant document regarding the suit property to show it to be a sample flat and whether it was allotted or not to anybody. Therefore, the defence of the defendant No.2 that it is a sample house is a bald plea and is liable to be rejected "; Thus, it appears that the Ld. Court Below had considered the true import and thereafter attached due evidentiary value to the document Mark'X'/ 'A', despite it being not proved, as per law, if at all and the reason given for nonavailability of the document, now, sought to be admitted is that it was lying with some other department, to which, the present appellant could not lay its hand timely, however, no specific correspondence/document has been shown to this court in support to the application for admitting additional document/evidence. It is also to be noted that the appellant is a Govt. Body and whatever effort has been made by them to trace the document by them, has to come on record, as it has to leave its traces, when the efforts are made diligently and in a bonafide manner. There is no wind of it and therefore, the plea appears to have been lacking bonafide and does not qualify as 'sufficient cause' for condoning the delay, in the present case. The appellant, claimed in its application, U/o 41, rule 27 CPC, that original of the document, Mark'X'/'A' alongwith site register, could not be traced, RCA No.01/17 Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.6 as on tracing, it was found that same were lying with its Vigilance Department. It was the duty of the appellant to be vigilant, during proceedings, to prove, its defence, which was not fulfilled and the plea, raised, by appellant is not established/supported with any document/evidence, hence, in the light of the law, laid down, above, the application, for condonation of delay, merits dismissal and appeal fails on this score alone, however, I need not to limit myself to this aspect of the matter alone and interest of justice compels me to write few further words on the other aspects of the matter, which is application U/o 41 rule 27 CPC and it suffice to once again refer the portion of paragraph No.23 and other paragraphs No.24&25 and that sufficiently, forms basis for not allowing the application for leading / production of additional document/evidence, the appellant, claimed in its application, U/o 41 rule 27 CPC, that original of the document, Mark'X'/'A' alongwith site register, could not be traced, as on tracing, it was found that same were lying with its Vigilance Department. It was the duty of the appellant to be vigilant, during proceedings, to prove, its defence, which was not fulfilled and the plea, raised, by appellant is not established/supported with any document/evidence, hence, application further does not qualify any of the parameters as specified in the Rule 27 of the Order 41 CPC and it also nonetheless, merits dismissal. Further, in any case, dwelling on the merits of appeal, it appears that the appellant has claimed that ld. Civil Judge, believed the contention of respondent to be true with regard to allotment letter, Ex.PW1/6, issued by DDA, on 24.06.1976, whereas, DDA itself has stated in its reply to RTI, Ex.PW1/L, that there is no record of creating the post of OSD, JJ, RCA No.01/17 Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.7 and information sought cannot be provided as per Section 8(3) of RTI Act, 2005, being old record of more than 36 years. PW4, Sh. Jagdish Chand, UDC from the office of DUSIB, had deposed that record of suit property is very old, which is not with them and is unable to produce it. PW5, Sh. Kapil Kumar, LDC from DDA, had deposed that record of suit property might be with DUSIB, but, he is not aware about the date and dispatch number, when it was transferred to DUSIB. Appellant/the then defendant has categorically stated in para 1 on merits, in its written statement that letter No.EO(L)/PA/Mis/3/76, dated 24.06.1976, is a matter of record, and in the appeal, it is claimed that it is a clerical/typographical error and could not be noticed by the appellant, during proceedings. The appellant/the then defendant was having sufficient opportunity with it, before the Ld. Trial Court, to cure the said mistake, but, despite that, it did not do so and at this stage, it wanted to cure the same, which cannot be allowed for want of any good legal reason.
7. The appellant/the then defendant, has claimed that DDA was wrongly deleted from array of the parties, as it was for DDA to prove that when they handed over the record of the suit property including alleged allotment letter, bearing No.EO(L)/PA/Mis/3/76, dated 24.06.1976 to the appellant, because the record transferred by DDA, does not show the letter Ex.PW1/6. From the perusal of the order dated 23.07.2004, passed by Ld. Civil Judge, it appears that DDA was deleted from the array of the parties, on the submission of the plaintiff, who stated that main relief is claimed only against RCA No.01/17 Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.8 MCD, Slum & JJ and her statement to this effect was also recorded, it is also clear that for the above reasons DDA was not considered a necessary party, to the suit for grant of permanent injunction, brought by the then plaintiff, when the relief was directed against the present appellant/the then defendant only and therefore, DDA could have been considered only a witness, if required to be made at the best by any of the parties to the then suit.
8. The appellant further claims that letter, Ex.PW1/6, itself is very suspicious sui generis document , as same has never been proved by the respondent, as per law, but, this contention of the appellant seems to be highly improbable, as the appellant was given sufficient opportunity before Ld. Trial Court to controvert this fact, but, it has failed to do so and in the absence of same, this plea appears to be vague.
9. In view of above discussion, I am of the view that there is no illegality, infirmity or perversity in the findings of ld. Trial Court, which require any interference and accordingly the impugned judgment and decree, stands upheld. The appeal, being meritless, stands dismissed, and impugned judgment and decree is hereby confirmed. Decree sheet be prepared accordingly. Parties are left to bear their own costs. TCR be sent back alongwith copy of this judgment. File be consigned to the record room.
Announced in the open
SANATAN Digitally signed by SANATAN
PRASAD
Location: Karkardooma Courts,
PRASAD Delhi
Date: 2018.05.10 10:33:50 +0530
Court on 09.05.2018 ( Sanatan Prasad )
Additional District Judge01
(East)/KKD/Delhi / 09.05.18
RCA No.01/17
Delhi Urban Shelter Improvement Board v. Asha Devi DOD : 09.05.2018 Page No.9