Delhi District Court
Sh. Sunil Sharma vs The Deputy Commissioner on 22 July, 2022
IN THE COURT OF CIVIL JUDGE, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Ms. Shruti SharmaI, DJS
Civil Suit No: 384/2018
Sh. Sunil Sharma
S/o Late Pandit Mohan Lal Sharma,
R/o A68, Ram Puri, Surya Nagar,
Ghaziabad, UP. ... Plaintiff
Versus
1. The Deputy Commissioner
District East,
Govt. of NCT of Delhi.
Vivek Vihar, Delhi110095.
2. The Executive Magistrate
Vivek Vihar, District East,
Govt. of NCT of Delhi.
Vivek Vihar, Delhi110095. ... Defendants
SUIT FOR DECLARATION AND
PERMANENT INJUNCTION
DATE OF INSTITUTION : 23.04.2018
DATE OF FINAL ARGUMENTS : 10.06.2022
DATE OF DECISION : 22.07.2022
JUDGMENT
1. The plaintiff has filed the present suit against the defendants, seeking the reliefs of declaration and permanent injunction. The exact prayer made by the plaintiffs, in the plaint, is reproduced below: Civil Suit No.384/2018 Sunil Sharma v Deputy Commissioner & Anr.
Page No.1 of 9"It is, therefore, most respectfully and humbly prayed that this Hon'ble Court may graciously be pleased to :
(a) pass a decree of declaration in favour of the plaintiff and against the defendants thereby directing the defendants no.1 and 2 to declare the Surviving Member Certificate bearing no.88/883/242/10/8/2011/8831078414/21 dated 16.08.2011 as null and void and no rights flow from the said certificate.
(b) pass a decree of permanent injunction in favour of the plaintiffs and against the defendant no.3 thereby restraining her, her assigns, nominees, authorized representatives, legal heirs, successors, attorneys, family members, children etc. from taking any benefits and misusing the said Surviving Member Certificate bearing no.88/883/242/10/8/2011/8831078414/21 dated 16.08.2011, in the interest of justice;
(c) award the cost of the suit/proceedings in favour of the plaintiff and against the defendants;
(d) pass any other order of relief which this Hon'ble Court may deems fit and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendants.
It is prayed accordingly."
Initially, the plaintiff has filed the present suit against three Civil Suit No.384/2018 Sunil Sharma v Deputy Commissioner & Anr.
Page No.2 of 9defendants viz. The Deputy Commissioner, The Executive Magistrate and Smt. Lalita Sharma. However, vide order sheet dated 07.04.2022, it has been recorded that the suit stood abated against the defendant no.3 as the relief claimed against the defendant no.3 was a relief is personum and was deleted from the array of parties as the defendant no.3 had expired.
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint that the plaintiff is related to Sh. Praveen Sharma (since deceased) as his real elder brother; that Sh. Praveen Sharma was a divorcee and having no legal heir of categoryI and he expired on 08.09.2009 at D87, Vivek Vihar, Delhi110095; that at the time of his death, Sh. Praveen Sharma was having a maid/domestic help namely Ms. Lalita Sharma w/o Sh. Hira Mani Vashisht who is defendant no.3 and in connivance with another brother of the plaintiff namely Sh. Punit Sharma conspired to grab the properties of Late Sh. Praveen Sharma; that the defendant no.3 had got issued a succession certificate from the court of ACJ, KKD Courts, Delhi; that the said certificate is under challenge by the plaintiff; that during the proceedings in the said case, the defendant no.3 has produced the Surviving Member Certificate bearing no.88/883/242/10/8/2011/8831078414/21 dated 16.08.2011 issued by the defendant no.2 thereby showing her as wife of Late Sh. Praveen Sharma; that the defendant no.3 is not legally wife of Sh. Praveen Sharma, however she worked as a maid in the house of Sh. Praveen Sharma; that the plaintiff has also sent a legal notice dated 19.12.2017 to the defendant no.1 and 2 which was duly served upon the defendant no.1 and 2 calling upon to cancel the Surviving Member Certificate bearing no.88/883/242/10/8/2011/8831078414/21 dated 16.08.2011 from their records; that in reply to the said notice, the defendant no.2 has submitted that as per the Civil Suit No.384/2018 Sunil Sharma v Deputy Commissioner & Anr.
Page No.3 of 9order dated 24.08.2012, in the case titled as Lalita Sharma v Sunil Sharma, the Hon'ble High Court of Delhi had ordered that the trial court to decide the issue afresh as per law and that the present suit has been filed.
3. Upon service of summons for settlement of issues of this suit, the defendant no.1 and 2 have filed the report wherein it is stated that as per the data available in the system, the Surviving Member Certificate (SMC) issued to Ms. Lalita is not available in their office as Vivek Vihar, Sub Division was the part of District East (L.M.Band, Shastri Nagar and after formation of District Shahdara in the year 2014, the Vivek Vihar Sub Division shifted to DM Office complex, Nand Nagri, Delhi and that the defendant no.1 and 2 have written a letter to SDM(HQ), District East L.M. Band, Shastri Nagar with the request to forward the supporting documents on the basis of which, the Surviving Member Certificate bearing no.88/883/242/10/8/2011/8831078414/21 was issued on 16.08.2011.
4. On 06.02.2019, on account of nonappearance on behalf of the defendant no.1 and 2, the defendant no.1 and 2 were proceeded exparte by a Ld. Predecessor Judge.
5. Upon service of summons for settlement of issues of this suit, the the defendant no.3 has contested this suit. In her written statement, the defendant no.3 has inter alia pleaded that the plaintiff has no right to challenge the marital status of the defendant no.3 after death of Sh. Praveen Sharma; that Sh. Praveen Sharma had expired intestate by leaving the defendant no.3 as his ClassI legal heir; that the first husband of the defendant no.3 namely Sh. Hira Mani Vashisht had expired much before; that the plaintiff by way of the Civil Suit No.384/2018 Sunil Sharma v Deputy Commissioner & Anr.
Page No.4 of 9present suit is claiming that the defendant no.3 is not the legally wedded wife of Late Sh. Praveen Sharma; that the law is not so strict and even customized marriages are recognized by law; that the surviving certificate was right issued by the defendant no.1 and that the plaintiff has no locus standi to challenge the validity of marriage between the defendant no.3 and Late Sh. Praveen Sharma.
6. In the replication qua the aforesaid written statement of the defendant no.3, the plaintiff has traversed the contents of the written statement, made the necessary denials and reiterated the contents of the plaint.
7. On the aforesaid pleadings of the parties, the following issues were framed by the Ld. Predecessor Judge, on 14.05.2019: "1. Whether the plaintiff is entitled to the decree of declaration, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of permanent injunctions, as prayed for? OPP
3. Whether the present suit is barred by limitation?
OPD3
4. Whether the plaintiff has no locus standi to file the present suit? OPD3
5. Relief."
8. During trial conducted before the Ld. Predecessor Judge, one witness viz. PW1 Sh. Sunil Sharma in support of the case of the plaintiff. The testimony of the said witness, is not being discussed, at this stage of this judgment, for the sake of brevity.
Civil Suit No.384/2018Sunil Sharma v Deputy Commissioner & Anr.
Page No.5 of 99. I had heard Sh. Rakesh Chaudhary, Ld. Advocate for the plaintiff, on 10.06.2022. The issue wise findings, in this case, are as follows:
ISSUES NO.4
10. The onus to prove this issue was put up on the defendant no.3. However, as the suit stood abated against the defendant no.3, no evidence was brought on record on her behalf. However, the present issue is a issue of law and the case of the plaintiff is that the defendant no.3 namely Smt. Lalita Sharma was not the legally wedded wife of Late Sh. Praveen Sharma and therefore, as a necessary corollary, the surviving member certificate so granted by the defendant no.1 and 2 be declared null and void. In Samar Kumar Roy (died) through LR (mother) v Jherna Bera [AIR 2018 SC 334], the Hon'ble Supreme Court held that "the High Courts have uniformly taken th view that a suit for declaration of a legal character filed under Section 34 of the Act can be filed by third party plaintiff or continued at the behest of the legal representative of a dead plaintiff". It also further held that "a suit for a declaration as to legal character which includes the matrimonial status of parties to a marriage when it comes to marriage which allegedly had never taken place either de jure or de facto. It is clear that the civil court jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law".
11. In view of the aforesaid discussion, this court is of the view that the plaintiff has locus standi to file the present suit. Accordingly, this issue is Civil Suit No.384/2018 Sunil Sharma v Deputy Commissioner & Anr.
Page No.6 of 9decided in favour of the plaintiff and against the defendants.
ISSUE NO.3
12. The onus to prove this issue was put up on the defendant no.3. However, as the suit stood abated against the defendant no.3, no evidence was brought on record on her behalf. Therefore, the contention of the plaintiff remains unrebutted as no evidence was brought forth and no questions in respect of this issue was put to PW1 Sh. Sunil Sharma in his cross examination.
13. In view of the aforesaid discussion, this court is of the view that the present suit has been filed within the limitation. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO.1
14. In respect of this issued, the plaintiff has examined himself and deposed in line with the plaint and relied upon the documents i.e. certified copy of evidence recorded in CS No.49/2016, Ex.PW1/1, photocopy of surviving member certificate Mark PW1/2, legal notice dated 19.12.2017 along with two postal receipts, Ex.PW1/3 and reply dated 01.02.2018 qua the legal notice along with its envelope, Ex.PW1/4.
15. PW1 in his cross examination deposed that the factum of the death Civil Suit No.384/2018 Sunil Sharma v Deputy Commissioner & Anr.
Page No.7 of 9of his brother namely Sh. Praveen Sharma was notified to him by the doctor at Hedgwr hospital and at the time of his death, Sh. Praveen Sharma was residing at D87, Vivek Vihar, Delhi along with Lalita Sharma; that Lalita Sharma was residing in the capacity of a domestic helper; that late Sh. Praveen Sharma was residing with the plaintiff at Surya Nagar, Ghaziabad till OctoberNovember 2008; that the property at Vivek Vihar was owned jointly by Late Sh. Praveen Sharma and Sh. Puneet Sharma; that a suit for partition was filed in respect of the said property in the Hon'ble High Court of Delhi; that at the time of filing of the said suit, the plaintiff used to accompany Late Sh. Prveen Sharma with respect to proceedings of the said suit for partition; that he was well aware of the proceedings of the aforesaid case till he was residing with the plaintiff and that he did not know after the death of Late Sh. Praveen Sharma, Smt. Lalita Sharma was impleaded as his LR.
16. It is pertinent to mention that since the defendant no.1 and 2 after filing the status report failed to contest this case, I am of the view that the plaintiff has proved his case on the balance of probabilities and the Surviving Member Certificate bearing no.88/883/242/10/8/2011/8831078414/21 was issued on 16.08.2011 is declared null and void. Accordingly, this issue is decided in favour of the plaintiff and against the defendant no.1 and 2.
ISSUE NO.2
17. As the relief of permanent injunction was sought against the defendant no.3 and the suit has already abated against the defendant no.3, this Civil Suit No.384/2018 Sunil Sharma v Deputy Commissioner & Anr.
Page No.8 of 9issue is decided against the plaintiff.
RELIEF
18. In view of the aforesaid findings, the present suit is partly decreed in favour of the plaintiff and against the defendants. It is held that the Surviving Member Certificate bearing no.88/883/242/10/8/2011/8831078414/21, issued on 16.08.2011 by the defendant no.1 is hereby declared null and void against the defendant no.1 and 2.
19. The parties shall bear their own costs. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Digitally
Announced in open Court (Shruti SharmaI)
signed by
today on 22.07.2022 Civil Judge/Shahdara district
SHRUTI
SHRUTI SHARMA
Karkardooma Courts/Delhi
SHARMA Date:
2022.07.22
05:02:20
+0530
Civil Suit No.384/2018
Sunil Sharma v Deputy Commissioner & Anr.
Page No.9 of 9