SH. TILAK RAJ AGGARWAL AND ANR. vs DELHI DEVELOPMENT AUTHORITY AND ORS.

2024-03-13 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 01st March, 2024
Pronounced on:13th March, 2024

+ CS(OS) 2091/1993

1. SH. TILAK RAJ AGGARWAL
S/o Shri R.P. Aggarwal
R/o House No.F-1, Shastri Nagar,
Delhi-110052.

2. SHRI HANS RAJ AGGARWAL
S/o Shri R.P. Aggarwal,
R/o House No.F-1, Shastri Nagar,
Delhi-110052. ….. Plaintiffs
Through: Mr. S.C. Singhal, Advocate.
Versus
1. DELHI DEVELOPMENT AUTHORITY
Vikas Sadan, INA Market,
New Delhi.
2. SHRI RANBIR SINGH
Secretary,
Delhi Development Authority,
INA Market, Vikas Sadan,
New Delhi. …..Defendants
Through: Ms. Beenashaw Soni, ASC, DDA & Ms. Mansi Jain, Advocate for D1.
Mr. N.S. Dalal, Mr. Alok Kumar & Ms. Rachana Dalal, Advocate for D-12.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J

I.A.16634/2018 (under Section 5 of the Limitation Act on behalf of Defendant No.12/applicant Mr. Kartar Singh for Condonation of Delay in filing application under Order 9 rule 13 read with Section 151 CPC)

1. An application has been filed on behalf of defendant No.12/applicant Mr. Kartar Singh seeking condonation of delay in filing the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC, 1908).
2. It is submitted in the application that on coming to know about the Ex-parte judgment and Decree dated 16.01.2009 on 22.09.2018, he immediately contacted his counsel on 22.09.2018 and on his request the Counsel appeared on 24.09.2018 and the matter was adjourned for 06.12.2018.
3. Thereafter, defendant No.12 got his office renovated and packed all his office goods including the summons with applications and documents and shifted it to another premises and was unable to work on account of renovation activity from 30.09.2018 to 27.10.2018. He then handed over the summons with applications and documents to his counsel on 30.10.2018 to prepare the Reply of the application. Consequently, the present application has been filed on behalf of defendant No.12 on or about 19.11.2018 with a delay of about 28 days. It is submitted that the delay was inadvertent and delay in filing the application under Section 151 CPC be condoned.
4. The application is contested by the plaintiff who in its detailed Reply denied all the averments made in the application and asserted that the application is highly misconceived and is liable to be dismissed.
5. For the reasons given in the application for condonation of delay, the delay of 28 days from the date of knowledge of the decree, the application is allowed and the delay is condoned.
6. The application is disposed of accordingly.

I.A.16633/2018 (under Order 9 Rule 13 read with Section 151 CPC on behalf of defendant No.12/applicant Mr. Kartar Singh for Setting Aside the Judgment and Decree dated 16.01.2009)
7. An application dated 16.11.2018 under Order 9 Rule 13 CPC has been filed on behalf of defendant No.12/applicant Shri Kartar Singh for setting aside the ex-parte judgement and decree dated 16.01.2009 passed against him.
8. It is submitted in the application that the plaintiff filed a suit for Recovery of Damages and Injunction in respect of the suit property bearing Plot No.B-9 and B-10, measuring 450 Sq. Yards and was part of Khasra No.2363 and 2364, Village Basai Darapur, known as Saraswati Garden, New Delhi.
9. The plaintiff had made a claim for Recovery of Rs. 24,88,990/- from the defendants jointly and severally and also claimed recovery of Rs.66,500/- per month for enjoying the suit plots. The Permanent Injunction and Mandatory Injunction was also sought to restrain the defendants from creating third party interest and from interfering in the rights of the plaintiff to raise the construction in the suit plots.
10. According to defendant No.12, the summons were directed to be issued on 17.09.1993 to all the defendants, but they could not be served. On 07.02.1994 according to the submissions of the counsel for the plaintiff, only defendant No.12 and 13 remained to be served, even though they had been duly served in the I.A. Therefore, fresh summons were directed to be issued against defendant No.12 and 13 for 28.02.1994. The summons were also taken dasti by the plaintiff.
11. As per the Order sheet dated 28.02.1994, the defendant No.6, 7, 12 and 13 were recorded to have been served, but none appeared on their behalf and the matter was adjourned for 15.03.1994. Thereafter, as per Order dated 23.05.1994, the matter was listed for 27.07.1994 on which date counsel for the plaintiff appeared, but none appeared for the defendants and the defendant No.7 to 13 were proceeded ex-parte. Subsequently, the suit was decreed in favour of the plaintiff on 16.01.2009.
12. The defendant No.12 has submitted that he was never served with the summons of the suit or with any application and false reports of service have been manipulated by the plaintiff, on the summons. It is further submitted that defendant No.1 to 8 are Government officials and had no concern with the suit property. It was defendant No.9 to 13 who had a concern as defendant No.12 is in possession of half of the suit property i.e. Plot No.B-10, Saraswati Garden, Delhi-15 which has been purchased by him from Late Smt. Veeranwali Khanna and Late Shri Yudhveer Khanna and Anil Khanna by way registered GPA, registered Receipt for Rs.2 lacs and registered Will executed by all the three sellers. These are all old documents executed on 30.07.1990 pursuant to which vacant possession was handed over to defendant No.12. It is asserted that defendant No.9 to 11 were not served properly or that they had sold their plots and were not interested to contest the suit of the plaintiff.
13. It is asserted that even though the Decree was passed on 16.01.2009, but it has never been executed till date. Had the plaintiffs been bona fide owners of the suit plot, they would not have left it unattended and would have surely raised construction over it. The colony of Saraswati Garden is well developed. The suit plot is in possession of defendant No.12 which has a boundary wall of 7 feet and an iron gate of 8 feet wide and 7 feet in height. The plaintiffs are well aware that the suit plot belongs to Mr. Kartar Singh and it is for this reason that defendant No.12 was intentionally not got served with the summons of the suit or with the I.A. The plaintiff had taken dasti summons on 07.02.1994 and has manipulated a false report and cunningly got the defendant No.7 to 13 proceeded ex-parte and ultimately got an ex-parte judgment and decree in their favour.
14. The defendant No.12 received the Notice of the application filed by defendant No.11 under Order 9 Rule 13 read with Section 151, CPC on 22.09.2018 and then he came to know about the judgment and decree dated 16.01.2009. He contacted his counsel on 22.09.2018, who appeared on his behalf on 24.09.2018 and noted the next date of hearing as 06.12.2018 and eventually the present application under Order 9 Rule 13 was filed on 16.11.2018.
15. It is therefore, sought that the present application be allowed and the ex-parte judgment/ decree dated 16.01.2009 be set aside.
16. The application is contested by the plaintiff who in its detailed Reply denied all the averments made in the application and asserted that the defendant No.12 was duly served for 28.02.1994 and none appeared on his behalf and vide order dated 27.04.1994 defendant No . 7 to 13 were proceeded ex-parte. It is asserted that the defendant No.12 was served through the process server hence, it cannot be said that the plaintiff had manipulated the report.
17. It is asserted that the defendant No.12 has falsely stated that he has come to know about the judgement dated 16.01.2009 after receiving summons of the application filed by the defendant No.11 under Order IX Rule 13, CPC.
18. It is further stated that the property is in possession of the plaintiff since prior to the passing of the decree in the suit and defendant Nos. 9 to 13 had nothing to do with the property in question and were only made parties to the suit as they were causing interference in the property.
19. Thus, the application of the defendant No.12 is liable to be dismissed.
20. Submissions heard.
21. The main issue before this Court is whether the judgement/decree dated 16.01.2009 is liable to be set side.
22. Pertinently, the present Suit was for Recovery of Damages and Injunction which was filed in the year 1993 and the present application has been filed on behalf of the defendant No. 12 on 16.11.2018.
23. Before considering the present Application under Order IX Rule 13 read with Section 151 of CPC, 1908, it would be pertinent to refer to the claims made by the plaintiffs and what was the final Judgment and Decree dated 16.01.2009.
24. The facts in brief, as stated in the Plaint were that both the plaintiffs were the real brothers and were joint owners of the property consisting Plot Nos. B-9 and B-10, measuring 450 sq. yards out of Khasra No. 2363 and 2364 of Village Basai Darapur, known as Saraswati Garden, New Delhi.
25. According to the plaintiffs, they had purchased both the aforesaid plots jointly on 14.03.1966 from Shri Madan Lal Khanna, the coloniser who in turn had purchased the said plots from the original owners in the year 1955 on the basis of Agreement to Sell and Power of Attorney. He had divided the land into plots making provisions for roads and streets and had sold these plots to various persons through registered Sale Deeds and handed over the possession to the purchasers. Subsequently, the plot numbers were accepted by the MCD and were assessed for property tax purposes on the basis of same numbers. Most of the purchasers built their respective houses on their plots and are actually living therein. Some purchasers sold their plots which are now in the possession of the subsequent purchasers. Shri Madan Lal Khanna died on 03.01.1981 and was represented in the Suit by the defendant Nos. 9 to 11, his wife and children.
26. According to the plaintiffs, the Plot No. B-9 was sold by Late Shri Madan Lal Khanna to one Shri Krishna Gopal Puri and Plot No. B-10 to one Shri Vishwa Mitter Puri vide registered Sale Deed dated 28.01.1956. Subsequently, the plaintiffs purchased the these two plots from Shri Krishna Gopal Puri and Shri Vishwa Mitter Puri vide registered Sale Deeds dated 21.03.1966 and got the actual physical possession of the said two plots. The plaintiffs, therefore, became the owners of the said two plots by virtue of the registered Sale Deeds dated 21.03.1966.
27. The plaintiffs had further explained that prior to 1965 in the land acquisition proceedings, Khasra No. 2364 was divided into two Khasra Nos. i.e., 2364/1 and 2364/2. Khasra No. 2364/2 was sought to be acquired by the Government, but the acquisition proceedings in respect of Khasra No. 2364/2 could not completed as the Land Acquisition Collector was unable to take the possession of the said Khasra No. 2364/2 which was partly built-up. This fact was admitted by the defendant No. 1/DDA in the Suit No. 703/1985 vide its Statement dated 01.05.1987. The acquisition proceedings, therefore, became infructuous. However, the plaintiffs were not able to construct their plots till 1983 on account of paucity of funds, though they were the owners and in the possession of the said two plots.
28. Under the Orders of SDM, Patel Nagar, a Naib Tehsildar was appointed as the Local Commissioner for the purpose of demarcation of Khasra Nos. 2363, 2364/1 and 2364/2, Saraswati Garden. The Report dated 19.07.1987 was submitted by the Naib Tehsildar/Local Commissioner who certified that the Plot No. B-9 fell in Khasra No. 2364/2 and Plot No. B-10 fell in Khasra no. 2363.
29. The plaintiffs undertook construction in the first week of July, 1984 at which time, defendant Nos. 9 to 11, the legal heirs of Late Shri Madan Lal Khanna, became dishonest and in collusion with officials of DDA, MCD and local Police tried to grab the said two plots.
30. The defendant No. 9 filed a collusive Suit No. 703/1985 on 08.06.1984 for perpetual injunction against the MCD, DDA, SHO and one Shri Kashmira Singh Cheema alleging that her husband, Late Shri Madan Lal Khanna, was the owner of the said two plots and after the demise of her husband, she became entitled to said plots. The defendant No. 9 claimed that on 02.06.1984, the site was visited by Shri Kashmira Singh Cheema along with the officials of MCD and DDA who told that both the plots were earmarked as Tot-lots and no construction could be raised. In this Suit, an ex parte injunction vide Order dated 09.061984 was passed against the plaintiffs.
31. The MCD gave a Statement dated 11.12.1986 that it had no interest in the said lands and it was proceeded ex parte on 25.05.1987. Shri Kashmira Singh Cheema gave a similar Statement of not having any interest in the said lands, on 02.12.1987. The DDA gave a statement on 01.05.1987 that the possession of the Khasra No. 2364/2 was never taken by the Land Acquisition Collector.
32. The plaintiffs when confronted with the ex parte injunction Order in the first week of July, 1984, when they started raising construction, they came to know about the Suit No. 703/2015 and they sought their impleadment vide Application dated 13.07.1984, but the said application was dismissed vide Order dated 23.05.1986 by observing that the property as described in the Sale Deeds, did not match with the suit properties which were the subject matter of the Suit.
33. The plaintiffs have also explained that Suit No. 703/1985 had been filed by the defendant Nos. 9 to 11 in respect of the two plots to which an objection had been taken by the plaintiffs about the non-description of the plots properly either by the municipal number, the boundaries and the correct measurements. The defendant Nos. 9 to 11 filed the amendment application under Order VI Rule 17 of CPC, 1908 which was allowed vide Order dated 01.05.1992.
34. The defendants no.9 to 11 in the Suit failed to correct the two plots and had intentionally kept the description of the two plots vague and confusing. The alleged mutation of Khasra No. 2364/1 in the name of the defendant Nos. 9 to 11 is for the reason that the land which had the roads in the lay out plan, remained mutated in the name of Shri Madan Lal Khanna at the time of his death which the defendant Nos. 9 to 11 had got subsequently mutated in their name and also because the respective subsequent purchasers did not get the same mutated in their name despite registered Sale Deeds in their favour.
35. The plaintiffs then filed the Suit No. 963/1986 for Declaration with Consequential relief vide on 11.06.1986 against the defendant Nos. 9 to 11 in respect of the said two plots. The defendant Nos. 9 to 11 refused the service and an ex parte Judgment and Decree dated 04.05.1987 was passed by the Court of Shri Z.S. Lohat, the then, Sub Judge, Delhi declaring the plaintiffs to be the owners and in possession of the said two plots.
36. The defendant Nos. 9 to 11 filed the Application under Order IX Rule 13 of CPC, 1908 for setting aside the ex parte Judgment and Decree dated 04.05.1987 passed in Suit No. 963/1986 which was allowed vide Order dated 10.02.1989. The Written Statement was directed to be filed by the defendant Nos. 9 to 11, which was filed after many adjournments. The defendant Nos. 9 to 11 admitted in their Written Statement that they had no concern with the said two plots. Thereafter, the defendant Nos. 9 to 11 appeared off and on in the case and were proceeded ex parte vide Order dated 13.12.1989. The said ex parte Order was set aside ultimately. Finally, the defendant Nos. 9 to 11 were proceeded ex parte vide Order dated 13.03.1982 and the Judgment and Decree dated 27.02.1992 was passed in favour of the plaintiffs and against the defendant Nos. 9 to 11 declaring the plaintiffs as the owners of the said two plots, thereby restraining the defendant Nos. 9 to 11 from interfering in the possession of the plaintiffs.
37. The ex parte Judgment and Decree dated 27.07.1992 became final in respect of the said two plots being in the ownership of the plaintiffs. The plaintiffs started raising construction when on 09.04.1983, the defendant Nos. 12 and 13 contacted the plaintiffs and showed some documents i.e., Receipt, Will, GPA dated 30.07.1990 allegedly executed in their favour by the defendant Nos. 9 to 11 and gave the photocopy of the same to the plaintiffs. The defendant Nos. 12 and 13 asserted that they had purchased the said two plots from the defendant Nos. 9 to 11. According to the documents produced by the defendant Nos. 12 and 13, they had allegedly purchased the two plots for Rs. 3,80,000/- only when both the plots were of Rs. 45,00,000/- which reflected that these were not the genuine documents. Moreover, the defendant Nos. 9 to 11 had no right to execute these documents in favour of the defendant Nos. 12 and 13.
38. It was further alleged that the defendant Nos. 9 to 11 could not succeed in their illegal design either in Suit No. 963/1986 (New No. 233/1989) or in Suit No. 703/1985 and, therefore, they projected defendant Nos. 12 and 13 to cause further harassment to the plaintiffs.
39. The plaintiffs, therefore, have prayed for the following reliefs in the suit: –
(a) Pass a decree for Recovery of Rs. 24,88,990/- (Rupees twenty four lakhs eighty eight thousand and nine hundred ninety only) as damages in favour of the plaintiffs and against the defendants jointly and severally,

(b) Pass a decree for Recovery of Rs. 66,500/- (Rupees sixty six thousand five hundred only) per month as damages in favour of the plaintiffs and against the defendants jointly and severally w.e.f. the institution of the present suit till the plaintiffs are able to use and enjoy the plots in question without any interference from any of the defendants or from their servants, agents, accomplices etc. The plaintiffs undertake to pay the requisite court fees on the decreatal amount as and when such damages are granted by this Hon’ble Court,

(c) To pass a decree for permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, servants, accomplices, substitutes etc. from interfering in raising any construction by the plaintiffs on their plot No. B-9 and B-10, Saraswati Garden, New Delhi, as shown in red colour in the site plan attached and from causing any interference or hindrance in any manner whatsoever in the possession, use and enjoyment and in dealing with the said plots by the plaintiffs either in collusion with or with the help of each other or otherwise,

(d) Pass a decree for mandatory injunction in favour of the plaintiffs and against the defendants No. 1 to 8, their agents, servants, accomplices, substitutes etc. thereby directing them to remove all hurdles and to see that the plaintiffs are able to raise necessary construction on the said plots immediately and nobody is able to stop the same or to cause any hindrance in any manner whatsoever either in the said construction or in the use and enjoyment of the said plots No. B-9 and B-10, Saraswati Garden, Delhi by the plaintiffs,

(e) The cost of the present suit may also be awarded in favour of the plaintiffs and against the defendants.

40. The defendant Nos. 9 to 12 were reported to be served despite which they failed to appear and were proceeded ex parte. A perusal of the Office Noting shows that the defendant No.12 was reported to be served for 10.01.1994. Further, the service was directed to be effected again vide Order dated 07.02.1994. The summons was also taken dasti on behalf of the plaintiff despite which they did not appear.
41. The Suit was contested by the defendant Nos. 1 to 6 which are the State, DDA and their Officials. The Suit was finally decreed vide Judgment dated 16.01.2009 and the relevant of the same reads as under: –
Issue No. 13: Relief:
44. In view of the above discussion, it is held that the plaintiffs are entitled to the reliefs of injunction and damages, to the extent of Rs. 7,20,000/-. Accordingly, the suit is decreed in terms of relief clause. Para 35(c) and (d) so far as claims for permanent and mandatory injunctions are concerned. A decree for Rs. 7,20,000/- is passed against the Defendants 9 to 11. In the circumstances, the costs shall be borne by the Defendants 9 to 11. Counsels fee is taxed at Rs. 35,000/-.

42. From the entire narration, it is evident that the Suit was not for Declaration of Title of the plaintiffs in respect of the said two plots but was only for Recovery of Damages which have been awarded against the defendant Nos. 9 to 11. No relief whatsoever has been granted to the plaintiffs against the defendant No. 12 vis-a-viz. the said judgment.
43. Even then, the present Application under Order IX Rule 13 of CPC, 1908 has been filed by the defendant No. 12 claiming that he had never been served with the summons of the present Suit. No explanation whatsoever has been given on the basis of which it is claimed that no service was effected upon the defendant No. 12. The record pertaining to the summons is of 1993-1994, which is not available.
44. It was for the defendant No. 12 to have disclosed on what basis he was alleging to have been not served when there is clear office noting that the defendant No. 12 was served for 10.01.1994 and 07.02.1994. Further, summons was also served dasti as directed vide Order dated 07.02.1994. There is no reason to question the office noting which has been done in discharge of their official duty, especially when the defendant No. 12 has not been able to explain the basis on which he is claiming to have not been served with the summons of the present Suit.
45. The defendant No. 12 has not been able to prove that he was not served with the summons.
46. The present application filed on behalf of the defendant No. 12 under Order IX Rule13 of CPC, is hereby dismissed.

I.A.9086/2018 (under Order 9 Rule 13 read with Section 151 CPC on behalf of defendant No.11/applicant Mr. Anil Khanna for Setting Aside the Judgment and Decree dated 16.01.2009)
I.A.9087/2018 (under Section 5 of Limitation Act for condonation of delay in filing I.A. 9086/2018 under Order IX Rule 13 r/w Section 151 of CPC, 1908)
47. List on 02.09.2024.

(NEENA BANSAL KRISHNA)
JUDGE

MARCH 13, 2024
va/S.Sharma

CS(OS) 2091/1993 Page 1 of 14