Delhi High Court
Guru Tilak Vyayamashala vs Delhi Development Authority on 15 September, 2011
Author: Sanjiv Khanna
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(OS) No. 9/2010
% Date of Decision: September 15, 2011
Guru Tilak Vyayamashala ....Appellant
Through Mr. Alok Aggarwal, Advocate.
VERSUS
Delhi Development Authority .....Respondent
Through Mr. Rajiv Bansal, Standing Counsel
with Mr. Rahul Bhandari, Adv. for
DDA.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
With the consent of the counsel for the parties, the matter is taken up for final disposal as a limited issue is involved.
2. The appellant herein Guru Tilak Vyayamshala had filed CS(OS) No. 2243/2006 for injunction and damages against the respondent DDA. By the impugned order dated 15th December, 2009, their suit has not been registered and has been dismissed, inter-alia, recording as under:-
This suit has been filed by the plaintiff for injunction and damages with a prayer that the defendant/DDA should be restrained from forcibly dispossessing the plaintiff from the suit premises and ad-interim injunction should be RFA(OS) 9/2010 Page 1 of 8 passed against the defendant directing them to restore the boundary wall and the rooms and further the defendant be restrained from releasing Rs.17,325/- towards cost of demolition.
The land in question falls near Ramakrishna Mandir at Paharganj. The plaintiff claims to be running an akhara at the said land. The plaintiff has filed a letter obtained from DDA of RTI inquiry wherein the DDA has claimed that the land has not yet been transferred to DDA. The plaintiff has failed to show any document showing that the plaintiff has title over the land. There is no letter showing that the land was allocated to the plaintiff by any authority whatsoever in Delhi. There is no letter that the plaintiff is running an akhara with permission of any authority.
It has become a practice of many people in Delhi to occupy any vacant Government land and either construct a religious structure there or construct an akhara or some similar structure and approach the court for injunctions and thereafter start making claim over the public land claiming that they are in possession citing the injunction orders of the court.
I consider that this modus operandi of occupation of the Government land must stop. The court cannot issue injunction in favour of a person against demolition or against any action by any public authority, unless and until the person coming to the court has a right, title and interest in the land. Mere possession taken either with connivance of the officials of the authority or because of their negligence in protecting the land does not entitle a person from protection against demolition of unauthorized structures.
The suit is hereby dismissed."
3. Learned counsel for the appellant has drawn our attention to the averments made in the plaint, certified copy of which has been placed RFA(OS) 9/2010 Page 2 of 8 on record. Pargraphs 5, 6, 8, 9, 10, 11, 12, 13 and 18 of the plaint read as under:-
"5. That a vacant piece of land at Peerbanbasi, Paharganj was allotted to the Guru Tilak Vyayamshala Prabandhak Sabha. That upon the allotment being done the members of the Akhara started constructed work at the site and in respect of which materials were purchased in the year 1970 and two rooms were constructed for beingused as changing rooms and for keeping the equipments e.g. Mugdar, weights etc. for physical exercises.
`
6. That the plaintiff was a devoted disciple of late Guru Shri Tilakraj Pahalwan and the said late guru also reposed full faith in the plaintiff. On 2.7.1976 in keeping with the tradition in the Vyayamshala a Pagri Ceremony was performed in the presence of Shri Sashi Bhushan, the then member of Parliament. In the said Ceremony, the plaintiff was appointed as Khalifa (Incharge) and entrusted with training of wrestlers, maintenance of disciples amongst wrestlers and day-to-day administration.
7. .........
8. That with the increase in number of disciples, the plaintiff was forced to add two more rooms for being used as storing space for equipment as well as for physical exercises during unfriendly seasons.
9. That on 4.7.1980, late Shri Tilak Raj Pahalwan executed a registered Will in favour of the plaintiff whereby the late Guru of the plaintiff bequeathed the entire interest of his Akhara to the plaintiff.
10. That the plaintiff in accordance with the wishes of his late Guru kept the Akhara running as he was doing from 1968 along with his late Guru Tilak Raj Pahalwan. The plaintiff ensured that all equipments for doing exercise were provided for and stocked in the Akhara.RFA(OS) 9/2010 Page 3 of 8
11. That the plaintiff as Khalifa has been continuously running the Akhara at its present site for the past 38 years for preserving and propularizing the Indian style and system of wrestling and has thus been in actual physical possession of the Akhara including the rooms.
12. That to maintain privacy and stop entry of unauthorised boundary wall of about 5' height was constructed by the plaintiff. The plaintiff has been paying house tax to NDMC regularly for more than 20 years and even prior thereto.
13. That on 7.8.2006, without any intimation to the plaintiff, officials of defendant came to the site of the Akhara and demolished the rooms as well as boundary wall of the Akhara. This was in spite of repeated requests made by the plaintiff not to carry out any demolition, since the plaintiff was in legal occupation of the premises. The action of the defendant has rendered the Akhara almost non-functional; it has exposed the actual Akhara sites to the stray dogs, cows and buffaloes in the area and also exposed the wrestlers to the gaze of passerby and outsiders. In nutshell, it has caused serious and grave prejudice to the activities and aims and objects of the Society.
14. ..........
15. .........
16..............
17..............
18. That this assertion of the defendant truly shocked the plaintiff who had lost the entire construction and now has been threatened with losing possession of the suit premises also. The plaintiff has been in settled possession of the premises for more than 40 years. The suit premises was allotted as an alternative site in 1969 in place of the earlier Akhara."
4. Learned counsel for the appellant has also drawn our attention to the documents filed with the plaint including several letters as well as RFA(OS) 9/2010 Page 4 of 8 electricity bills, photo identity cards etc. It also brought to our notice that suit was not admitted and no written statement was filed by the respondent, though a reply to an interim application was filed.
5. In view of the averments made in the plaint, we do not think that the suit should have been dismissed at the stage of admission itself. In this connection we may reproduce the observations of the Supreme Court in Alka Gupta vs. Narender Kumar Gupta, (2010) 10 SCC 141, in which the Supreme Court has extensively examined the procedure prescribed in the Code of Civil Procedure, 1908, and when and in what circumstances a plaint can be rejected at threshold without admission. It has been held:-
"27. The Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication is conducted by a court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the court. There are no short-cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption.RFA(OS) 9/2010 Page 5 of 8
28. The Code enumerates the circumstances in which a civil suit can be dismissed without trial. We may refer to them (not exhaustive):
(a) Dismissal as a consequence of rejection of plaint under Order 7 Rule 11 of the Code in the following grounds:
(i) where it does not disclose a cause of action;
(ii) where the relief in the plaint is undervalued and the plaintiff fails to correct the valuation within the time fixed;
(iii) where the court fee paid is insufficient and the plaintiff fails to make good the deficit within the time fixed by court;
(iv) where the suit appears from the statement in the plaint to be barred by law;
(v) where it is not filed in duplicate and where the plaintiff fails to comply with the provisions of Order 7 Rule 9 of the Code.
(b) Dismissal under Order 9 Rule 2 or Rule 3 or Rule 5 or Rule 8 for non-service of summary or non-appearance or failure to apply for fresh summons.
(c) Dismissal under Order 11 Rule 21 for non-compliance with an order to answer interrogatories, or for discovery or inspection of documents.
(d) Dismissal under Order 14 Rule 2(2) where issues both of law and fact arise in the same suit and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only and it tries such issue relating to jurisdiction of the court or a bar to a suit created by any law for the time being in force first and dismisses the suit if the decision on such preliminary issue warrants the same.
(e) Dismissal under Order 15 Rule 1 of the Code when at the first hearing of the suit it appears that the parties are not at issue on any question of law or fact.RFA(OS) 9/2010 Page 6 of 8
(f) Dismissal under Order 15 Rule 4 of the Code for failure to produce evidence.
(g) Dismissal under Order 23 Rules 1 and 3 of the Code when a suit is withdrawn or settled out of court.
29. The following provisions provide for expeditious disposal in a summary manner:
(i) Order 5 Rule 5 of the Code requires the court to determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit (and the summons shall have to contain a direction accordingly). In suits to be heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.
(ii) Order 15 Rule 3 of the Code provides:
"3. Parties at issue.--Where the parties are at issue on some question of law or of fact, and issues have been framed by the court as hereinbefore provided, if the court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:"
(But where the summons has been issued for the settlement of issues only, such a summary course could be adopted only where the parties or their pleaders are present and none of them objects to such a course.)
(iii) Order 37 Rule 1 read with Rules 2 and 3 of the Code relating to summary suits."
RFA(OS) 9/2010 Page 7 of 8
6. In view of the aforesaid, we set aside the order dated 15th December, 2009 and restore the plaint. The plaint shall be registered as a suit and the respondent/defendant will file their written statement within a period of 60 days from today. It will be also open to the respondent/ defendant to file appropriate application under Order VII Rule 11 or Order XII Rule 6, if so advised. It is clarified that this court has not expressed any opinion on the merits of the case, the averments made in the plaint or the stand of the respondent/defendant. If any application under the aforesaid provisions is filed by the respondent/defendant, the same shall be considered as per law.
7. With the above directions and observations, the appeal stands allowed. No costs.
SANJIV KHANNA, J.
CHIEF JUSTICE September 15, 2011 kkb RFA(OS) 9/2010 Page 8 of 8