Delhi District Court
Mrs. Karuna Shukla vs Smt. Saraswati Tiwari on 12 March, 2013
1
IN THE COURT OF SHRI MANMOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL)01
TIS AZARI COURTS, DELHI.
MCA No.: 02/2012
Unique ID no. 02401C0224782012
Mrs. Karuna Shukla
W/o Sh. Sheo Shankar Shukla
R/o Vinayak Bhawan A7/3132,
Sector17, Rohini, Delhi110 085
....Plaintiff
Versus
1. Smt. Saraswati Tiwari
W/o Sh. Sheo Poojan Tiwari
R/o 5350 Laddoo Ghati
Paharganj, New Delhi110 055
2. Sh. Sheo Poojan Tiwari
S/o Sh. Satya Deo Tiwari
R/o 5350 Laddoo Ghati
Paharganj, New Delhi110 055
3. Sh. Satya Deo Tiwari
S/o Lt. Sh. Ram Chaavi Tiwari
R/o 5350 Laddoo Ghati
Paharganj, New Delhi110 055
4. Sh. Mhd Aftab Ansari
S/o Md. Yusfuf Ansari
R/o House no. 53, Islampur, Kharia,
PO Jiyalgora District Dhanbad, Jharkhand
..... Defendants
Mrs. Karuna Shukla Vs. Smt. Saraswati Tiwari MCA 02/2012 Page no. 1 of 4
2
Date of institution of appeal :17.05.2012
Date of reserving for judgment :12.03.2013
Date of announcement of judgment :12.03.2013
JUDGMENT
This is a miscellaneous appeal against the order dated 11.04.2012 passed by the ld. Civil Judge in suit no. 94/2008 titled as 'Karuna Shukla Vs. Saraswati Tiwari & Ors'.
2. Vide the impugned order ld. Civil Judge has dismissed an application under Order 26 read with Section 151 CPC whereby, the appellant had sought appointment of a Local Commissioner and erection of a Notice Board thereby notifying that the suit property is lis pendence.
3. I have heard Sh. Sh. Satender Mishra, ld. counsel for appellant Sh. Satish Kumar, ld. counsel for respondent.
4. Ld. counsel for the appellant has read Section 52 of the Transfer of Property Act 1882 stating that the character of suit property has been changed and title has been transferred to the third parties by the respondents and the same is in clear violation of Section 52 of TPA. Reliance is also placed upon the judgment of Hon'ble Supreme Court of India in 'Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana' (SLP(C) no. 13917 of 2009 date of decision 11.10.2011).
5. It is further submitted that no permission of the court was Mrs. Karuna Shukla Vs. Smt. Saraswati Tiwari MCA 02/2012 Page no. 2 of 4 3 taken which is mandatory requirement of Section 52 TPA and if the Notice Board is erected it will give full effect to the intention of Section 52 TPA.
6. Per contra, ld. counsel for respondents has refuted the arguments of appellant. It is submitted that the injunction application of appellant has been dismissed by Trial Court and appeal against the same also met the same fate. Rights of parties are yet to be determined and therefore the appeal has no force and it be dismissed.
7. I have considered the rival submissions.
8. The ld. Trial Court vide order dated 11.12.2008 had dismissed the application of appellant under Order 39 Rule 1 and 2 CPC. The challenged to the same was also unsuccessful as the ld. Appellate Court dismissed the appeal of appellant on 11.08.2009.
9. Section 52 of TPA creates the bar of lis pendence by operation of law and operates against world at large i.e. the persons who are not parties before the court are within domain of the doctrine of lis pendence if they do not observe the conditions of Section 52. During the pendency of the suit the rights of the parties are under adjudication and would get crystallize only on the completion of adjudication process. The dismissal of injunction application by the ld. Trial Court and dismissal of appeal against the same by the ld. Mrs. Karuna Shukla Vs. Smt. Saraswati Tiwari MCA 02/2012 Page no. 3 of 4 4 Appellate Court by itself shows that the appellant was not able to satisfy the necessary requirements which were condition precedent for grant of the relief claimed.
10. The application as pressed into service by the appellant which was dismissed by the impugned order is ostensibly an attempt to indirectly seek the similar relief or similar effect which could have been had the application under Order 39 Rule 1 and 2 CPC had been allowed. It cannot be permitted. Non erection of notice would not in any way dilute the effect of Section 52 of TPA as the dictum is Caveat Emptor.
11. I do not see any infirmity in the impugned order justifying interference by this Court. The appeal is therefore dismissed.
12. A copy of this order be sent to the ld. Trial Court along with the TCR.
13. Appeal file be consigned to Record Room.
Announced in the open Court today on 12th March, 2013 (MAN MOHAN SHARMA) ADJ (Central)01, Delhi Mrs. Karuna Shukla Vs. Smt. Saraswati Tiwari MCA 02/2012 Page no. 4 of 4