Delhi District Court
Abha Tyagi & Anr vs Union Of India & Ors on 5 May, 2012
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Suit No.186/11/03
ABHA TYAGI & ANR VS UNION OF INDIA & ORS
IN THE COURT OF SH N.K. GOEL : ADDL. DISTRICT JUDGE (5) WEST
DELHI
Suit No. 186/11/03
In re.
Abha Tyagi & Anr
....................Plaintiffs
Vs.
Union of India & ors
...............Defendants
ORDER
1. Vide this order, I shall decide an application moved on behalf of the plaintiffs u/o 6 rule 17 CPC on 14.03.2012.
2. Before coming to the application, I think it expedient to give the brief history of the case.
3. The plaintiffs filed the present suit for declaration, mandatory and permanent injunction claiming themselves to be the Bhumidars/owners of the property admeasuring 600 sq.yards forming part of Khasra no. 1244 (old number 2029/1675) total measuring 6 Bighas and 15 Biswas situated in the Revenue Estate and abadi area of Village Kishangarh, Tehsil 2 Suit No.186/11/03 ABHA TYAGI & ANR VS UNION OF INDIA & ORS Mehrauli, New Delhi (in short, the suit property).
4. Defendant nos. 1, 2 and 3 are Union of India, DDA and Government of Delhi respectively. The prayer made by the plaintiffs in the suit is for passing a decree of declaration thereby declaring that the entries made by the defendants in the revenue records in respect of the suit property are wrong and illegal, a decree for mandatory injunction for issuing directions to the defendants to correctly record the ownership and possession of the plaintiffs in the revenue records being maintained by, and in the custody of, defendant no. 2 and for a decree of permanent injunction for restraining the defendants, their servants, agents and representatives from demolishing the super structure, sealing or interfering in any manner in the possession of the plaintiffs on the suit property on the grounds stated in the plaint.
5. No written statement has been filed on behalf of defendant nos. 1 and 3. defendant no. 2 has contested the suit by filing a written statement.
6. Application of the plaintiffs u/o 39 rules 1 & 2 CPC filed alongwith the plaint was dismissed vide order dated 12.05.2004 by one of my Ld. Predecessors. Issues were framed. Parties led their respective evidence. Case was fixed for final arguments.
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Suit No.186/11/03 ABHA TYAGI & ANR VS UNION OF INDIA & ORS
7. Copy of an order dated 15.11.2010 passed by the Hon'ble High Court in FAO 161/2004 titled as Abha Tyagi & Anr vs Union of India & Ors filed against the order dated 12.05.2004 (dismissing the application of the plaintiffs u/o 39 rules 1 & 2 CPC) has been received wherein it has been, inter alia, held that the appellants/plaintiffs herein had no legal right, title or interest over the suit land and the status of the plaintiffs vis-a-vis the suit land is that of a trespasser/person in unlawful possession and, hence, no injunction could be granted to them against the defendants. Therefore, the appeal was accordingly dismissed.
8. On 09.02.2012 it was stated on behalf of the defendant/DDA that after the said judgment dated 15.11.2010 the defendant/DDA has demolished the structure on the suit property and has taken over its possession. On the same date, statement of Sh. H.S Kohli, advocate for the plaintiffs was recorded wherein he admitted that defendant/DDA has demolished the whole structure on the suit property in the year 2011 after the passing of the above stated judgment/order dated 15.11.2010 but, however, the demolition action had been carried out illegally. He further stated that as per the instructions received from the plaintiffs, possession of the entire suit property has not been taken over by the DDA and the plaintiffs are still 4 Suit No.186/11/03 ABHA TYAGI & ANR VS UNION OF INDIA & ORS in part possession of the suit property which cannot be described in words because the part portion acquired by the defendant/DDA did not have any distinct number. Only thereafter the present application u/o 6 rule 17 CPC was filed on behalf of the plaintiffs. By moving the present application the plaintiffs now want to add paras 18A, 18B, 18C and 18D and make additions in existing para relating to accrual of cause of action and to incorporate the following reliefs in the plaint:-
"(a-i) Grant a decree of declaration declaring that the act of the demolition carried on the suit property forming part of khasra no.1244(old No. 2029/1675) situated in the revenue estate of village Mehrauli, Kishan Garh, Tehsil Mehrauli, New Delhi on 22.07.2011 and 29.07.2011 and their after acquisition of a part of land forming part of the suit property admeasuring approximately 500 sq yards by the defendant no.2 and its functionaries is illegal unauthorized. a-ii) In consequence of the aforesaid declaration, the Hon'ble Court may kindly be pleased to pass a decree of mandatory injunction direct the defendants to compensate the plaintiffs 5 Suit No.186/11/03 ABHA TYAGI & ANR VS UNION OF INDIA & ORS for the unauthorized act of the demolition 13,00,000/- towards cost of construction on the land forming part of the suit property.
a-iii) In consequence aforesaid declaration, the Hon'ble court may kindly be pleased to pass a decree of Mandatory injunction direct the defendants its assignees or successors in-interest to compensate the plaintiffs as per the policy framed in terms of land acquisition Act and may direct to allocate and allot an alternative residential plot to the plaintiffs."
9. It is pleaded that the proposed amendments are necessary and expedient for the just and proper decision of the case and they are in continuity of cause of action and there is no endeavour on the part of the plaintiffs to set up a new case and the amendments are consequent to omissions and commissions of the defendants and, thus, do not change the nature of the suit.
10.Defendant no. 2/DDA contested the application and filed a reply.
11.Thereafter the counsel for the plaintiffs sought adjournments for seeking 6 Suit No.186/11/03 ABHA TYAGI & ANR VS UNION OF INDIA & ORS instructions from the plaintiffs to withdraw the present suit. However, ultimately on 23.04.2012 he stated that the plaintiffs were not ready to withdraw the suit and the court may pass appropriate orders in the matter on the application u/o 6 rule 17 CPC and also on the main suit.
12.I have heard the Ld. counsel for the plaintiffs and the Ld. Counsel for defendant no. 2 on the application and also carefully perused the judicial file.
13.The Ld.Counsel for the plaintiffs has contended that since during the pendency of the suit defendant no. 2/DDA has taken demolition action in respect of the suit property on 22.07.2011 and 29.07.2011 and also taken forcible possession of a part of land forming part of the suit property, the proposed amendments to be made in the plaint are necessary for the just and proper decision of the suit and the same would not change the nature of the suit at all.
14.On the other hand, the Ld. counsel for defendant no. 2/DDA has contended that since vide order dated 15.11.2010 the plaintiffs have been held to have no legal right, title or interest over the suit land and they are trespassers/persons in unlawful possession vis-a-vis suit land and since thereafter super structure existing on the suit property has been 7 Suit No.186/11/03 ABHA TYAGI & ANR VS UNION OF INDIA & ORS demolished and possession of the suit property has been taken over by defendant no. 2, the suit itself has become infructuous and the plaintiffs cannot be allowed to make the proposed amendments in the plaint because if they are allowed to do so the entire nature of the suit would change and a de-novo trial shall begin. His submission is that therefore, not only the application but also the suit itself be dismissed.
15. I find sufficient force in the contention raised by the counsel for defendant no. 2. After the order dated 15.11.2010 passed by the High Court defendant no. 2/DDA has admittedly demolished the super structure and taken over the possession of the suit property though the case of the plaintiffs is that only possession of a part of the suit property has been taken over. A very vague plea has been taken by the plaintiffs that only possession of a part of the suit property has been taken by defendant no. 2/DDA. Therefore, the reliefs sought in the suit have become infructuous after the demolition of and taking over the possession of the suit property. Thus, a new cause of action has arisen for the plaintiffs which cause of action cannot be allowed to be added in the present suit because now the relief sought to be added by moving the present application is altogether different from the prayers made in the suit. If the proposed amendments 8 Suit No.186/11/03 ABHA TYAGI & ANR VS UNION OF INDIA & ORS are allowed to be carried out in the plaint, the entire nature of the suit shall change. This is a well settled principle of law that the amendments which tend to change the nature of the suit cannot be allowed. If such amendments are allowed to be carried out in the plaint, infact a de-novo trial shall begin which cannot be allowed to be done.
16.In view of the above discussion, I am of the view that the application is without any merits and is liable to be dismissed. Not only this the suit has also become infructuous and, therefore, there is no necessity to keep the suit pending or alive and the pendency of the suit will lead to no logical conclusion.
17.In view of the above discussion, I dismiss not only the application but also the suit having become infructuous. Decree sheet be prepared accordingly. File be consigned to record room.
(NK Goel) Addl. District Judge-05 (WEST) Tis Hazari Courts, Delhi.
(Announced in the open court on 05-05-2012)