Delhi District Court
R.G. Gupta vs . Mcd & Ors. on 9 February, 2016
R.G. Gupta Vs. MCD & Ors.
CS. No. 179/11
R.G. Gupta & Anr. Vs. MCD & Ors.
09.02.2016
Present: Sh. A.K. Vasistha, counsel for plaintiff.
Ms. Promila Kapoor, counsel for defendant no.1. Ms. Kanchan Bansal, proxy counsel for defendant no.2. Sh. Raghavender Pandey, counsel for defendant no.3. Sh. M.S. Khan, counsel for defendant no.4.
Remaining arguments on application U/o XXXIX Rule 4 CPC heard.
Further arguments on the application U/o VI Rule 17 CPC have been heard.
Put up for orders at 4.00 pm. (Surya Malik Grover) SCJcumRC (South)/Saket Courts, New Delhi/09.02.2016 At 4.00 pm. Present: None.
By virtue of the joint orders, applications U/o XXXIX Rule 4, order VI Rule 17 CPC , order VII Rule 11 CPC r/w. Section 3 of Limitation Act and applications U/s. 10 and 11 CPC are being disposed of.
In his application U/o XXXIX Rule 4 CPC, Ld. counsel for the defendant no.4 has argued that on account of interim order dated 19.07.2006 and 03.07.2010, extreme hardship is being caused to the defendants no.3 and
4. It is prayed that in the said order, order dated 19.01.2009 passed by the Hon'ble Delhi High Court in LPA No. 53543/2006 has not been considered CS. No. 179/11 Page 1 of 4 R.G. Gupta Vs. MCD & Ors.
and therefore it requires to be recalled.
In rebuttal it has been argued by Ld. counsel for the plaintiff that in the aforesaid order, orders passed by the Hon'ble High Court have not only been duly considered but relied upon by the Ld. Predecessor of this Court and application should be dismissed with costs.
On perusal of the impugned order in the light of the judicial record especially the orders passed by the Hon'ble High court dated 19.01.2009, I am satisfied that Ld. Predecessor has given due weightage to the same and Ld. counsel for the defendant no.4 has erroneously argued that the said order was not considered. It is pertinent that Hon'ble High Court has observed categorically in Para 7 of the said order that evidence is required to be led with regard to existence of masjid at the site prior to 15.08.1947 and as to at what stage masjid came into existence. It is also pertinent that the present application seeking that restraint order be recalled has been moved by the defendant no.4, though it had been observed by the Hon'ble High Court that the Wakf Board must approach the concerned authorities for making arrangements for larger number of namazis to be accommodated within the masjid by carrying out suitable construction in accordance with law. Hence, the position that emerges is that only Delhi Wakf Board after taking due permission from the concerned authorities can get construction done and all other issues regarding the area and existence of masjid are to be adjudicated only after full fledged trial.
In view of the aforesaid I do not find any grounds to recall the order dated 03.07.2010, hence application U/o XXXIX Rule 4 CPC is dismissed.
Coming to application U/o VII Rule 11 r/w. Section 3 of Limitation Act, the crux of the said application moved by defendant no.4 is CS. No. 179/11 Page 2 of 4 R.G. Gupta Vs. MCD & Ors.
that the plaint speaks of illegal construction in the form of mosque after the completion of construction and allotment of Aravali Apartments whereby 354 flats were completed in 1983. It is alleged that as per the plaint, the alleged illegal construction was done before 1983 and therefore, the present suit filed in the year 2006 after a gap of 23 years is hopelessly barred by limitation.
In rebuttal, it has been argued by Ld. counsel for the plaintiff that fresh construction work is being done by the defendants. Even otherwise, the disputed structure is a continuous nuisance to the residents of Aravali Apartments and therefore fresh period of limitation begins to run on each and every date and covered U/s. 22 of the Limitation Act, as such the application deserves to be dismissed.
Perusal of the judicial file reveals that it is the case of the plaintiffs as per Para 9 that in the morning of 05.07.2006, the defendants no.3 and 4 have started bringing huge building material and started raising illegal construction. Further, it has also been stated in Para 7 of the plaint that defendants no.3 and 4 are mere trespassers on the public land who have illegally encroached upon the same and raised a mosque thereupon and the said space was made for car parking for the residents of the complex. On the other hand, defendant no.4 has stated in the written statement that Masjid and Dargah are more than 100 years old and question of permission does not arise for renovation or repair work and no construction work is being done.
In the facts and circumstances, as there is dispute between parties as to whether any fresh construction was being carried out, the question of limitation is a mixed question of facts and law, which can be decided only after fullfledged trial. Hence, application U/o VII Rule 11 r/w. Section 3 of Limitation Act stands dismissed.
CS. No. 179/11 Page 3 of 4Coming to application under section 10 and section 11 CPC moved by defendant no.4, wherein it has been prayed that on account of the orders passed by the Hon'ble High Court in LPA No. 535543/2006 wherein it was held that the said mosque is already in existence since more than 100 years, the present suit may be stayed. I have perused the aforesaid orders. As proceedings before Hon'ble High Court have already been disposed of vide order dated 19.01.2009 wherein it has been categorically observed that evidence is required to be led, neither Section 10 CPC nor Section 11 CPC shall apply as neither any suit with regard to the concerned subject matter is pending disposal nor the same has been heard and finally decided by any other Court of competent jurisdiction. Hence, application is prima facie meritless and dismissed.
Finally, as regards application U/o VI Rule 17 CPC, the plaintiff seeks to amend his plaint and incorporate the subsequent events arising out of LPA No. 53543/2006, which were passed subsequent to the filing of the present suit. Further, other amendments sought to be incorporated are also necessary for proper adjudication of the case on merits and do not in any manner change the nature of the suit and only elaborate the facts already mentioned in the plaint. In view of the aforesaid, the amendment application stands allowed. Amended plaint is taken on record.
Accordingly, the applications are disposed of. Now matter be listed for filing of amended written statement/completion of pleadings/filing of original documents/framing of issues on 19.04.2016.
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