Delhi District Court
Sh. Ajit Singh vs Municipal Corporation Of Delhi on 30 January, 2013
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE III, ROHINI COURTS: DELHI
RCA No. 6/11
Sh. Ajit Singh ............Appellant
Versus
Municipal Corporation of Delhi
...........Respondent
Order
1. By this order I shall dispose off an appeal U/s 104 r/w Order 43 CPC against the order dt. 17.9.09 whereby judgment and decree dt. 3.2.09 passed in favour of appellant has been set aside. Briefly the facts of the case are that the plaintiff has filed the suit for permanent injunction thereby praying for a decree of permanent injunction thereby restraining the defendant, its agents, his employee etc from acquiring and demolishing the part of suit property bearing no. 153, measuring 816 sq. yds village & PO Iradat Nagar @ Naya Bans, Tehsil Narela, Delhi82 as shown in red colour in the RCA No. 6/11 Page 1 of 16 site plan, hereinafter referred as a suit property. The plaintiff claimed himself to be the owner and in possession of the suit property measuring 816 sq. yds as per report of the Halka Patwari, Iradat Nagar, Naya Bans, Field Kanoongo and Tehsildar Narela which has been earmarked as abadideh during the settlement of the village during the year 1908 1909. It is pleaded that after issue of lal dora certificate in respect of khasra no. 153, the plaintiff out of his meager salary raised construction over the plot and since then he is residing in the suit property alongwith his family. It is alleged that on 25.2.03 the official of defendant visited the property and conveyed the plaintiff that they were going to demolish the suit property in order to widen the road. Immediately thereafter on 26.2.03 the plaintiff and his father visited the office of defendant and requested the official of the defendant to show the order of demolishing but to no response. It is pleaded that defendant has no right to demolish any part of property of the plaintiff in any capacity. Hence the present suit.
RCA No. 6/11 Page 2 of 16
2. Suit of the plaintiff has been contested by the defendant who also filed the w/s . In the w/s the defendant has taken the preliminary objection that plaintiff has not come to the court with the clean hands and concealed the material facts that an order U/s 133 Cr.PC dt. 7.8.01 thereafter CR. no. 19/01 titled Sukh Lal Maan Vs. State vide orders dt. 27.10.01 was passed wherein it is clearly held that Sukh Lal Maan made encroachment on the govt. land . Thereafter in criminal M.No 222/02 hon'ble High Court vide orders dt. 29.11.02 dismissed the petition of Sukhlal Maan and from the memo of parties it is revealed that Sukhlal Maan was the father of Ajit Singh i.e. plaintiff.
3. From the record it is revealed that the defendant failed to examine any witness during the pendency of suit despite repeated adjournments. DE was closed by order dt. 5.3.08 after considering that ample opportunities had already been given for adducing evidence. Ld. Trial court after considering the evidence on record decreed the suit of RCA No. 6/11 Page 3 of 16 plaintiff vide judgment dt. 3.2.09. The file was taken up again on an application U/o 1 R 8 r/w Section 151 for seeking permission to file the representative review petition filed by one Kamaldeep Maan on behalf of the resident of village Iradat Nagar who were directly affected and had substantial and common interest and thereafter an application U/s 114 & U/o 47 R/w 151 CPC moved on behalf of MCD. Ld trial court vide the order dated 17.09.2009 allowed both the review applications and the application U/s 5 of the Limitation Act moved on behalf of the MCD and consequently the judgment/decree dated 03.02.2009 passed in suit No. 170/08/03 was set aside.
4. The appellant herein has challenged the order dated 17.09.2009 mainly on the ground that the trial court has acted as an appellant court over its own judgment and started making inquiries on its own and collected evidence for MCD in order to substantiate its order for review application. Ld trial court also ignored the boundaries and RCA No. 6/11 Page 4 of 16 parameters of review which say that review can be sought when it is established that important matter and evidence could not be brought into notice of court and could not have been produced by a party seeking review after exercise of the due diligence and was not within its knowledge. The second ground of review is permissible when there is some error on the face of the record or any other sufficient reason. In the present case, ld trial court has considered the report of LC which was taken on record before passing of order on review application. The said report of LC shows that appellant is in possession of built up house of area measuring 716 sq. yds. The report does not show the disputed portion i.e. the chabutara between the street and the out front wall of the appellant. Since the dispute relates to only part of chabutara which according to appellant is part of his house is proved by plaintiff during the course of the suit therefore the trial court should not have relied upon the report of LC which was taken on record without any jurisdiction. It is further alleged that proceedings U/s 133 RCA No. 6/11 Page 5 of 16 Cr.P.C were already within the knowledge of MCD and the objection to that effect was also taken in their WS. Thus, it can not be said that MCD could not prove its case. It is further pleaded that trial court has wrongly allowed the application U/s 5 of the Limitation Act as it is the settled law that limitation once starts, does not stop. Ld trial court ignored the fact that the judgment was passed on 03.02.2009 whereas the application for review was filed on or after 05.08.09 i.e after about 5 months whereas the review can be filed only within 30 days. It is admitted case of MCD in the application that they were aware of decree on 28.04.09 so even if that period is counted, the plea is beyond limitation and without any further explanation. In this case the decree had attained finality on 03.03.2009 when no appeal was filed within the 30 days and the application for review was filed on 05.08.09. It has therefore been prayed to quash and set aside the order of ld trial court dated 17.09.2009 passed on the review petition.
RCA No. 6/11 Page 6 of 16
5. I have heard the arguments addressed by counsels for both the parties and perused the record. Ld counsel for the appellant has also placed reliance on certain judgments in support of his arguments which are Manyben Devraj Shah Vs Municipal Corporation of Br. Mumbai in civil appeal no. 29702971 of 2012, Meera Bhanja Vs Smt. Bimla Kumari Chaudhary, AIR 1995, Supreme Court 455, Parsion Dev and others Vs Sumitri Devi and Other (1997) 8 Supreme Court cases 715, State of West Bengal & Others Vs Kamal Sen Gupta & another 2008 VIII AD (SC) 65. On the other hand, MCD has placed reliance on the judgment of Hon'ble supreme Court in BCCI and Another Vs Netaji Cricket Club & Others AIR 2005 (SC) 592, AIR 1985 Madras 87 (88), A.R. Antuley Vs R.S. Naik (AIR) 1988 (SC) 1531, AIR 2005 (4) SCC 741, Vinod Kapoor Vs Union of India 2007 (145) DLT
328.
6. Ld trial court has allowed application U/s 5 of the Limitation Act for seeking condonation of delay in filing the review petitions considering that there are inherent delays in RCA No. 6/11 Page 7 of 16 movement of files in the Govt. offices and the court while considering the condonation application of the government department can not brush aside the said fact. Ld trial court has also placed reliance on judgments of Hon'ble Delhi High Court in the judgment reported in 150(2008) DLT 169 and on the judgment reported in 1994 (30) DRJ 587. In the judgment reported in 150(2008) DLT 169 wherein it has been held by Hon'ble High Court that procedural laws should not be given weightage over the substantive rights which can not be sacrificed for procedural laws. In the other judgment (supra) it has been held that there are delays in movement of files from the officers concerned in government agencies which should be considered by the court. Ld counsel for the appellant has placed reliance on the judgment of Hon'ble Mumbai High Court in Maniben Devraj Shah wherein it has been held that no premium can be given for total lethargy and utter negligence on the part of officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay can not RCA No. 6/11 Page 8 of 16 be allowed as a matter of course by accepting the plea that dismissal of matter on the ground of bar of limitation will cause injury to the public interest. In the judgment cited by ld counsel for appellant itself it has been held that in cases involving State and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in decision making process. It has been further held that if the court finds that there has been no negligence on the part of applicant and the cause shown for delay does not lack bonafides, then it may condone the delay. In view of the judgment relied by ld counsel for the appellant as well as by ld trial court, it becomes clear that the court has to take note of the fact that lot of time is taken in decision making process in the government instrumentalities and if the explanation given is bonafide, the discretion can be exercised by the court for condoning the delay. The appellant herein has taken the plea regarding the misconduct by the erstwhile counsel engaged by the MCD who never informed the MCD about the status of the case. RCA No. 6/11 Page 9 of 16 To show the bonafide, the MCD has also depanelled the said advocate for his negligence. Thus, I do not find any infirmity in the discretion exercised by ld trial court in favour of the applicants while condoning the delay in filing the review petitions.
7. At the outset review petition U/o 47 R 1 CPC lies on discovery of new evidence or error apparent on the face of the record or other sufficient reasons. Though the MCD in its w/s had taken the objections that father of plaintiff in a criminal complaint U/s 133 Cr. PC has been held guilty upto hon'ble High court for making encroachment on the public land. However the same could not be proved by the MCD as it failed to examine even a single witness. Failure on the part of MCD to produce the evidence on record resulted into passing of impugned judgment dt. 3.2.09 in favour of plaintiff. In the review petition the MCD has taken the plea that counsel appearing on behalf of MCD has not stated the facts on behalf of MCD to this court and has shown RCA No. 6/11 Page 10 of 16 unprofessional conduct by not showing any interest in contesting the present suit. The present proceedings which was contested on behalf of MCD by the then counsel were never revealed to the department at any point of time during the proceedings and even after decision of the suit. For the first time MCD came to know about the fate of present suit on 28.4.09 when a dispute was reported for illegal encroachment of the suit property by the residents of village where it was revealed that on the order of this court plaintiff was covering the said property. As per the last information placed by Sh. Manoj Sharma Advocate, representing the MCD to the department was that the matter was pending for defendant evidence and even intimated to the concerned official to give his presence before this court as and when required. It is further stated that Sh. Manoj Sharma Advocate has also been de paneled from the list of MCD because of his negligence and misconduct. Alongwith review petition MCD has placed on record conditional order dt. 4.8.2000 thereby giving the findings that Sh. Sukhlal RCA No. 6/11 Page 11 of 16 Maan has encroached the public street by putting soil and trying to make boundaries by encroaching upon the land of street. Vide the conditional order father of plaintiff was directed to remove the encroachment within 7 days on receipt of the notice and for his personal appearance to show cause as to why the order should not be made absolute. Further, from certified copy of order dt. 7.8.2001 U/s 133 Cr.PC it is revealed that in view of the non compliance of the conditional order passed by SDM, the conditional order was made absolute. Further from certified copy of order dt. 27.10.2001 passed by MS. Deepa Sharma, ld. ASJ in CR no. 19/2001 it is revealed that Sh. Sukhlal Maan had challenged the order of SDM passed on 7.8.2001, however the revision was dismissed by ld. ASJ. From the certified copies placed on record it is also revealed that the father of plaintiff had filed the petition U/s 482 Cr.PC for stay of the operation of order dt. 27.10.2001 passed by ld. ASJ in the hon'ble High Court. The said petition was also dismissed for non prosecution vide order dt. 29.11.2002 by RCA No. 6/11 Page 12 of 16 hon'ble High Court. Thus the order passed by SDM U/s 133 Cr.PC attained finality. In the judgment cited by ld. Counsel for appellant it has been mainly held that in the review petition court cannot re appreciate entire evidence for detecting the error in the earlier decision and than correct the same. Ld. Counsel for appellant has emphasised the findings given by hon'ble Supreme Court in Parsion Devi's case (Supra) wherein it was held that error which is not self evident and has to be detected by process of reasoning can hardly be said to the apparent error on the face of record justifying the court to exercise its power of review U/o 47 R 1 CPC. In exercise of the jurisdiction U/o 47 R 1 CPC it is not permissible for an erroneous decision to be reheard and corrected.
8. The judgment cited by ld. Counsel for appellant are not applicable to the fact and circumstances of the present case since at the time the impugned judgment dt. 3.2.09 was passed, though MCD had taken the objections with regard to RCA No. 6/11 Page 13 of 16 proceedings U/s 133 Cr.PC, there was no evidence on record to establish the stand taken by MCD. Thus the judgment passed by ld. Trial court cannot be said to be an erroneous judgment. Hence ld. Trial court had the power to entertain the review petition when the new evidence, which was not on record earlier, was brought on record. I rely on the judgment of hon'ble Delhi High Court in Vinod Kapoor Vs. UOI 2008 (1) AD (Delhi) 427 wherein it was held that review petition is also maintainable if new evidence comes to light which has material bearing on the decision.
9. It may also be emphasised that besides error apparent on record and discovery of new evidence, review petition is also maintainable for other sufficient reasons. In Board of Control for Cricket, India's case (supra) it has been held that word " sufficient reason" is wide enough to include a misconception of fact or law by a court and subsequent events may be taken into consideration by the court for rectifying its own mistake. I am of the considered opinion RCA No. 6/11 Page 14 of 16 that on the same analogy misconduct of the earlier counsel engaged by MCD, who has already been depanelled from the list of Municipal counsels, due to whose conduct the public at large has been made to suffer and public interest, is also covered under the word "sufficient reason". Besides this ld. Trial court has rightly observed that the plaintiff has not made even a whisper in respect of the proceedings U/s 133 Cr.PC or that he had filed a similar suit against the defendant on the same cause of action. For the said reason also the plaintiff/appellant is not entitled to any relief. I also agree with the findings of ld. Trial court that while deciding the review petition trial court has power to appoint or consider the report of Local Commissioner. In view of the petition filed by the villagers that there was connivance between the plaintiff and MCD ld. Trial court had inherent power to appoint the LC to bring the truth on record. In view of the report of ld. Trial court that plaintiff was actually in possession of only 716 sq. yds of the suit property and not 816 sq. yds as claimed as well as the order passed by ld. RCA No. 6/11 Page 15 of 16 SDM U/s 133 Cr.PC which has been upheld upto hon'ble High Court, I do not find any infirmity in the order dt. 17.6.09 passed by ld. Trial court vide which the impugned judgment has been set aside in the review petition.
Announced in open court (SUKHVINDER KAUR) dated 30.01.2013. ADDL. DISTRICT JUDGE:III ROHINI COURTS: DELHI RCA No. 6/11 Page 16 of 16 RCA No. 6/11 09.1.2013 Present: None.
Order partly dictated. Put up for pronouncement of orders on 30.1.2013.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE:III ROHINI COURTS: DELHI.
30.1.2013
Present: None.
Vide separate order, appeal is dismissed. Trial court
record be sent back. File be consigned to record room.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE:III ROHINI COURTS: DELHI.
RCA No. 6/11 Page 17 of 16