Delhi District Court
Sh. Sanjeev Mathur vs Sh. Mahender Singh on 30 January, 2019
IN THE COURT OF SH. NAVEEN KUMAR KASHYAP
SCJ/RC(NORTH-WEST ) : ROHINI COURTS:DELHI.
(The respondent is a senior citizen of about 82 years old.)
RCA NO. 45/16 Sh. Sanjeev Mathur Late Sh. Balbir Singh C/o. Sh. Narender R/o. 155, Village Kirari, Suleman Nagar Delhi 110086. ...Appellant.
VERSUS Sh. Mahender Singh S/o.Late Sh. Raghubir Singh R/o. H. No. 17, Village Kirari, P.O. Sultan Puri, Delhi-86. ...Respondent.
Appeal presented on : 03.09.2016
Appeal decided on : 30.01.2019.
Decision : Appeal Allowed.
FINAL JUDGMENT IN FIRST REGULAR APPEAL
1. By this judgment, I would decide the present appeal u/o. 41 read with Section 96 of CPC which is filed against the final judgment and decree dated 29.03.2016 passed by Ms. Shefali Sharma, Ld. Civil Judge, North District, Rohini Courts, Delhi in original suit titled as " Mahender Singh Vs. Sanjeev Mathur" in original civil suit No. 187/13.
2. By such judgment and decree dated 29.03.2016 such Ld. Civil RCA No.45/2016 Page No..1 of 5 Sanjeev Mathur Vs. Mahender Singh Court was pleased to decree the suit of the plaintiff/respondent and directed the original defendant/appellant to remove the illegal construction raised by him in the suit premises i.e. land measuring 100 sq. yards falling in Khasra no. 884,885 and 886 village Kirari, Suleman Nagar, Delhi.
3. In nutshell, it is stated in the appeal by such appellant/ original defendant that the Ld. Trial Court has failed to consider and appreciate the material on record including the earlier judgment filed by the Court of Sh. Abhilash Malhotra, Ld. Civil Judge (Central-02), THC, Delhi, which was filed by plaintiff/respondent himself. It is stated that in such earlier judgment, it was held that such earlier suit filed by present respondent/original plaintiff is hit by Section 41 (h) of Specific Relief Act as the efficacious remedy for the plaintiff was to file suit for partition alongwith consequential relief of injunction. It is further submitted that appellant is successor in interest who was defendant in the present suit filed by present respondent. As such, such earlier findings are binding on both the parties. As such, it is submitted that present suit is hit by Section 11 of CPC. It is further submitted that earlier suit of the plaintiff was dismissed vide order dated 31.03.2011 where the matter in issue was directly and substantially in issue. It is further submitted that in any case construction in question was carried out prior to year 2007 and same is protected under NCT of Delhi Laws (Special Provision 2011).
4. No formal written reply is filed by the respondent side and it was stated by respondent side that they will directly argue on the present appeal.
5. Oral arguments in detail already heard from both side. I have RCA No.45/2016 Page No..2 of 5 Sanjeev Mathur Vs. Mahender Singh heard both the sides and gone through the record. Further, I have gone through the case law filed by the parties.
6. Admittedly, the present respondent/original plaintiff filed an earlier suit which was decided vide judgment dated 21.01.2012 by Ld. Civil Judge, Sh. Abhilash Malhotra, and the same was dismissed. In fact, it appears from the record that even the appeal filed by the present plaintiff/respondent against that earlier suit was also dismissed vide order dated 21.01.2012 by Ld. Sh. Ashutosh Kumar, the then Ld. SCJ-cum-RC (N/W), Rohini Courts, Delhi.
7. In such trial court judgment which later on merged with such appellant court judgment dated 21.01.2012, it was held that present respondent/plaintiff was seeking relief of permanent injunction restraining the defendants Surender Singh Beniwal and Smt. Raj Bala from raising construction. Same is subject matter of present suit against which the present appeal is filed. It was held in that earlier judgment by Sh. Abhilash Malhotra, Ld. Civil Judge that such earlier suit of the present respondent/plaintiff was barred U/s. 41 (h) of Specific Relief Act as simplicitor suit for injunction without relief of partition is not maintainable and same view was upheld by first Ld. Appellant Court also. Further, as per record, no further appeal is filed by the present original plaintiff/respondent against such concurrent findings of the such two courts.
Thus, it appears that despite such earlier Court judgments available on record, the Ld. Trial Court has failed to consider the same including effect thereof U/s. 11 of CPC.
8. It may further be noted that it is the case of the present respondent/original plaintiff himself that during the proceedings he RCA No.45/2016 Page No..3 of 5 Sanjeev Mathur Vs. Mahender Singh came to know that such earlier persons sold 1000 sq. yards to the present appellant/original defendant Sanjeev Mathur. Thus, such appellant is successor in interest of Surender Singh Beniwal and Smt. Rajbala. Thus, it is rightly pointed out in such appeal that present suit is barred U/s. 11 of CPC.
9. It may further be noted that it is a basic law that once the period of limitation starts running, then generally, it can not be stopped. In present suit, it is noted in the earlier judgment dated 31.03.2011 that it was the case of the plaintiff that defendants of that case illegally started construction in question over the suit property. That the plaintiff even called police on 04.06.2001 but police did not stop the construction.
It may also be noted that it is the duty of the Court itself to look into the aspect of the limitation.
On a bare reading of the present suit alongwith evidence, it can be seen that it is pleaded by the plaintiff that cause of action arose only a week ago of filing the present suit when the plaintiff came to know about the residence of the present defendant/appellant. Thus, in any case, in the meanwhile the limitation period was running and was no stopped. It further appears that on bare perusal of the examination in chief by way of affidavit of plaintiff, (which is repetition of plaint only) that he no where mentioned the date of starting of such construction. Further, in the considered view of this Court, under the facts and circumstances of this case, the period of limitation did not stop from running and it is a matter of record that present suit was filed on 17.05.2012. Whereas as per the material placed on record by the plaintiff himself, the construction took place around RCA No.45/2016 Page No..4 of 5 Sanjeev Mathur Vs. Mahender Singh 04.06.2001. Thus, it is held that present suit is also barred by limitation as the same is filed after three years of arising of cause of action which did not stop.
10.For these reasons, this court is of the considered view that there are grounds to interfere with the impugned final judgment and decree in question dated 29.03.2016. This appeal is found not to be devoid of merits. The impugned judgment and decree dated 29.03.2016 passed by Ms. Shefali Sharma, Ld. Civil Judge, North District, Rohini Courts, Delhi in original suit titled as " Mahender Singh Vs. Sanjeev Mathur" in original civil suit No. 187/13, is hereby set aside and present appeal by appellant/original defendant is allowed. Accordingly, original suit filed by plaintiff/respondent stands dismissed.
11.In the given facts & circumstances of this case, parties are left to bear their own costs qua this appeal. Decree sheet be prepared accordingly. A certified copy of this judgment, along with certified copy of decree of this court, be attached with the Ld. Trial Court Record (in short TCR) to be returned back to the Ld. Trial Court forthwith as per rules against due receipt. The appeal file be consigned to Record Room as per rules, after necessary compliance.
Digitally signed by NAVEEN NAVEEN KUMAR
Announced in the Open Court KUMAR KASHYAP
Date: 2019.01.30
on 30th January, 2019 KASHYAP 15:30:35 +0530
(NAVEEN KUMAR KASHYAP)
SCJ-RC(N/W) : ROHINI : DELHI
RCA No.45/2016 Page No..5 of 5
Sanjeev Mathur Vs. Mahender Singh