Delhi District Court
Smt. Vidhya Devi vs . Sdmc & Ors. on 9 December, 2019
Smt. Vidhya Devi Vs. SDMC & Ors.
CS No. 16939/16
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS: NEW DELHI
Civil Suit No. 16939/16
CNR No. DLSW010007222013
In the matter of:
Smt. Vidhya Devi
W/o Late Surja Ram
R/o 3026/10B, Gali No.4,
Near Hanuman Chowk,
Ranjeet Nagar, Patel Nagar,
New Delhi110008. .... Plaintiff
Versus
1) South Delhi Municipal Corporation
Through its Commissioner,
Civics Centre, Kamala Market,
Near Jakir Hussain College, Delhi.
2) The Deputy Director (VSD)
South Delhi Municipal Corporation,
Najafgarh Zone, Opposite Suraj Cinema,
Najafgarh, Delhi.
3) Sh. Sanjay Inspector
South Delhi Municipal Corporation,
Najafgarh Zone, Opposite Suraj Cinema,
Najafgarh, Delhi.
4) Sh. Kalu
S/o Sh. Hari Singh
Page No. 1 of 10 DOD: 09.12.2019
Smt. Vidhya Devi Vs. SDMC & Ors.
CS No. 16939/16
(5) Sh. Begraj
S/o Sh. Kalu
Both residents of:
RZ10B, Arjun Park,
Near Nangli Dairy, Delhi. ... Defendants
Date of Institution of suit : 29.07.2013
Date on which judgment was pronounced : 09.12.2019
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION
: JUDGMENT :
1.Plaintiff Smt. Vidhya Devi has filed suit for declaration, mandatory and permanent injunction by impleading (i) SDMC through its Commissioner; (ii) Deputy Director (VSD), SDMC Najafgarh Zone; (iii) Sh. Sanjay Inspector, SDMC Najafgarh Zone; (iv) Sh. Kalu and (v) Sh. Begraj as defendants No. 1 to 5.
2. Plaintiff's case set out in the plaint is that she being legally wedded wife of Sh. Surja Ram (allottee) has become owner/licensee of plot bearing No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi which were allotted to her husband under rehablitation scheme for running dairy actitivities.
3. It is averred that her husband was put in possession of aforesaid plots measuring 50 sq. yards each on the basis of irrevocable allotment with ownership right and other LRs namely Sh. Khem Chand Page No. 2 of 10 DOD: 09.12.2019 Smt. Vidhya Devi Vs. SDMC & Ors.
CS No. 16939/16and Sh. Somnath (deceased) have executed 'No Objection Certificate' of all plots in favour of the plaintiff who is in peaceful possession of suit property since death of her husband late Surja Ram on 26.05.2000.
4. Defendants No. 1 and 2 used to collect necessary fee of aforesaid plots and plaintiff has referred to letter dated 24.01.2005 issued by defendants No.1 and 2 and receipt No. 999010 dated 24.01.2005 for Rs. 6650/ for asserting herself as owner of aforesaid plots.
5. Defendants No. 4 and 5 being close relatives are alleged to have colluded and conspired with defendant No.3 who obtained thumb impressions of plaintiff on various documents upon the pretext that the documents were required for renewal of allotment letter/license on 21.06.2013 and collected Rs. 15,000/ in cash from plaintiff on 24.06.2013 but issued receipt for a sum of Rs. 11,360/ only for renewal of license of two plots bearing No. 41 and 42 instead of four plots No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi.
6. It is averred that defendants No. 4 and 5 have forcibly entered the suit property and stopped plaintiff from carrying out her work on 24.07.2013 and plaintiff having met and inquired from defendant No.3 was informed that defendants No. 4 and 5 had taken her thumb impressions on several papers and applied for transfer of plots in their name before 24.07.2013.
7. Plaintiff being stunned and shocked by the attitude of defendants No.3 to 5 lodged her complaint with SHO PS Najafgarh and defendants No. 1 and 2 and left with no alternative has filed suit for:
a) declaring her as lawful allottee/lawful occupant of suit Page No. 3 of 10 DOD: 09.12.2019 Smt. Vidhya Devi Vs. SDMC & Ors.CS No. 16939/16
property bearing No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi shown in red colour in the siteplan and declaring documents executed by defendants No. 1 to 3 in favour of defendants No. 4 and 5 or any other person as null and void, void ab initio, invalid and unenforceable;
b) directing defendants No. 1 to 3 to accept fee and taxes of plot/premises No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi shown in red colour in the siteplan and issue receipt along with renewal/appropriate letter and
c) restraining defendants, its officials, servants, agents, employees, etc. from (i) dispossessing plaintiff, her family members, employees, etc. from suit property; (ii) creating hindrance, obstacle or resistance from reconstructing/built up/constructing/developing dairy; (iii) canceling license/permission/lease of suit property bearing premises No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi and (iv) creating any third party interest in suit property bearing premises No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi.
8. Defendants No. 1, 2 and 3 have filed joint written statement contesting plaintiff's suit being time barred and prayed for dismissal of suit by insisting that plot bearing No. 4142, Nangli Sakrawati Dairy, Najafgarh, Delhi was allotted/leased out in the name of Sh. Surja Ram whereas plot No. 4344, Nangli Sakrawati Dairy, Najafgarh, Delhi was allotted in the name of Sh. Kalu as per policy of MCD for grant of license Page No. 4 of 10 DOD: 09.12.2019 Smt. Vidhya Devi Vs. SDMC & Ors.
CS No. 16939/16under Section 417 of DMC Act, 1957 and office order dated 20.04.2000.
9. Defendants No. 4 and 5 have filed separate written statement seeking dismissal of suit by contending that late Surja Ram was owner of plot No. 41 and half portion of plot No. 42, Nangli Sakrawati Dairy, Najafgarh, Delhi which was used for running the dairy business.
10. Defendants' application under Order VII Rule 11 CPC was dismissed vide order dated 08.08.2014 and following issues were settled on 11.01.2016 on the basis of pleadings:
1. Whether the suit is maintainable as framed and presented before the court? OPP
2. Whether the suit is barred under any provisions of law; provisions of CPC in general and provisions of any Act, in particular? OPP
3. Whether the plaintiff is entitled for declaration in respect of suit property as lawful allottee and occupant of the suit property bearing No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi? OPP
4. Whether plaintiff is entitled to permanent injunction in favour of the plaintiff and against the defendant of the suit property bearing No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi? OPP
5. Whether the plaintiff is entitled for mandatory injunction in respect of the suit property bearing No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi? OPP
6. Relief.
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11. Issue No. 1 and 2 were treated as preliminary issues and issue No.2 was modified to the extent that onus of the issue was placed upon defendant vide order dated 30.03.2016.
12. Plaintiff's application under Order XII Rule 6 CPC filed on 18.02.2015 was heard and dismissed vide order dated 06.02.2019 and matter was posted for plaintiff's evidence.
13. Affidavit of plaintiff Smt. Vidhya Devi was filed on 14.05.2019 which was tendered in evidence on 13.08.2019 and crossexamination of plaintiff by ld. counsel for defendants No. 1 to 3 was recorded on the same day.
14. Affidavit of PWSh. Khem Chand (son of Smt. Vidhya Devi) has not been filed despite several adjournments and plaintiff Smt. Vidhya Devi has not appeared in court for her crossexamination by defendants No. 4 and 5 on two consecutive dates of hearing after settlement could not be arrived between parties at Mediation Centre, Dwarka Courts.
15. Since plaintiff is not entitled to more than three adjournments during entire trial as per Order XVII Rule 1 CPC whereas plaintiff's evidence has not been concluded despite several adjournments after dismissal of application under Order XII Rule 6 CPC on 06.02.2019 so plaintiff's evidence is closed.
16. Order XVII Rule 3 CPC provides that court may proceed notwithstanding either party fails to produce evidence, etc. and Explanation of Order XVII Rule 2 CPC lays down that court may, in its discretion, proceed with the case as if such party were present in cases where the evidence or substantial portion of the evidence of any party has Page No. 6 of 10 DOD: 09.12.2019 Smt. Vidhya Devi Vs. SDMC & Ors.CS No. 16939/16
already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned.
17. Since plaintiff Smt. Vidhya Devi has tendered her affidavit in evidence and her crossexamination by Advocate Sh. Sameer Chug, ld. counsel for defendants No. 1 to 3 has been recorded on 13.08.2019 so I proceed to decide the suit on the basis of my findings upon Issues settled on 11.01.2016.
18. Issue No. 1: Whether the suit is maintainable as framed and presented before the court? OPP and Issue No. 2: Whether the suit is barred under any provisions of law; provisions of CPC in general and provisions of any Act, in particular? OPD (as modified vide order dated 30.03.2016) 18.1 Isssue No. 1 and 2 being similar in nature are decided by one common finding.
18.2 Plaintiff's suit for declaration, mandatory and permanent injunction has been filed asserting herself as lawful allottee/lawful occupant of plot No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi which were allotted to her husband Sh. Surja Ram under the rehablitation scheme.
18.3 Defendants No. 1 to 3, on the other hand, have contested the suit disputing its maintainability for want of statutory notice under Section 477 and 478 of DMC Act, 1957 in their joint written statement. 18.4 Plaintiff in her affidavit tendered in evidence has not mentioned about statutory notice issued to defendant MCD before filing of Page No. 7 of 10 DOD: 09.12.2019 Smt. Vidhya Devi Vs. SDMC & Ors.
CS No. 16939/16suit and has deposed that she is not aware whether statutory notice was issued to MCD before institution of suit during her crossexamination recorded on 13.08.2019.
Finding: Issue No. 1 and Issue No. 2 are therefore decided against plaintiff as suit for declaring plaintiff as lawful allottee of plots bearing No. 41 to 44, Nangli Sakrawati Dairy, Najafgarh, Delhi and directing defendants No. 1, 2 and 3 to accept fee and issue receipt along with renewal/appropriate letter cannot be filed without mandatory statutory notice as per Section 478 of DMC Act, 1957.
19. Issue No. 3: Whether the plaintiff is entitled for declaration in respect of suit property as lawful allottee and occupant of the suit property bearing No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi? OPP 19.1 Siteplan and copy of death certificate of late Surja Ram (husband) and late Somnath (son) have been proved as Ex.PW1/1, Mark A and Ex.PW1/2 whereas copy of letter/application dated 24.01.2005; receipt No. 611005 dated 25.10.2004 and receipt No. 999010 dated 24.01.2005 mentioning plot No. 4144 have been referred as Ex.PW1/3, Ex.PW1/4 and Ex.PW1/5 respectively. Copy of letter/dairy license dated 24.06.2013 issued by SDMC has been referred as Ex.PW1/5A whereas complaint dated 25.07.2013 and postal receipts are Ex.PW1/7 to Ex.PW1/10.
19.2 Plaintiff Smt. Vidhya Devi during her crossexamination by ld. counsel for defendants No. 1 to 3 has deposed that she could not remember the year when license was obtained from MCD and could not Page No. 8 of 10 DOD: 09.12.2019 Smt. Vidhya Devi Vs. SDMC & Ors.
CS No. 16939/16recollect the plot number for running the dairy activity. Dairy license dated 24.06.2013 referred as Ex.PW5/A was shown to plaintiff who could not remember the document but admitted possession of plot No. 41 and 42 on the basis of license and denied the suggestion that plot No. 43 and 44 were allotted to defendant No.4 Sh. Kalu Ram as per MCD record. 19.3 Ld. counsel for defendants during the course of submissions has adverted to (i) dairy license of two plots bearing No. 41 and 42 in the name of plaintiff referred as Ex.PW1/5A; (ii) affidavit dated 21.06.2013 of plaintiff Smt. Vidhya Devi in respect of two plots No. 41 and 42 admeasuring 100 sq. yards; (iii) demand notice dated 18.06.2013 in respect of two plots and (iv) dairy license and demandcumsanction letter dated 21.04.2011 in favour of Smt. Hansho Devi W/o Sh. Kalu Ram for disputing plaintiff's case asserting herself as lawful allottee/occupant of property No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi. Finding: Since plaintiff Smt. Vidhya Devi has failed to appear in court for her crossexamination by ld. counsel for defendants No. 4 and 5 whereas dairy license and demandcumsanction letter dated 21.04.2011 in favour of Smt. Hansho Devi W/o Sh. Kalu Ram has filed on judicial record for disputing plaintiff's claim as lawful allottee/occupant of property No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi so Issue No. 3 is decided against plaintiff.
20. Issue No. 4: Whether plaintiff is entitled to permanent injunction in favour of the plaintiff and against the defendant of the suit property bearing No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi? OPP Page No. 9 of 10 DOD: 09.12.2019 Smt. Vidhya Devi Vs. SDMC & Ors.
CS No. 16939/16and Issue No. 5: Whether the plaintiff is entitled for mandatory injunction in respect of the suit property bearing No. 4144, Nangli Sakrawati Dairy, Najafgarh, Delhi? OPP 20.1 Both issues are decided by one common finding. Finding: Since application dated 24.01.2005, receipt No. 611005 dated 25.10.2004 and receipt No. 999010 dated 24.01.2005 in respect of plot No. 4144 are not sufficient for claiming herself as lawful occupant/allottee and dairy license dated 24.06.2013 referred as Ex.PW1/5A has been issued in respect of plot No. 41 and 42 only so plaintiff is not entitled to equitable relief of injunction as prayed. Issue No. 4 and 5 are therefore decided against the plaintiff on the basis of my finding upon Issue No. 3.
21. Relief: Plaintiff's suit for declaration, mandatory and permanent injunction is dismissed but in the circumstances without any order as to costs.
22. Decree sheet be prepared accordingly.
23. File be consigned to record room. Digitally signed TARUN by TARUN YOGESH YOGESH Date: 2019.12.12 15:59:04 +0530 Announced in the open Court (Tarun Yogesh) On 09.12.2019 ADJ03/South West Dwarka /New Delhi Page No. 10 of 10 DOD: 09.12.2019