Ramesh Chand Aggarwal and Others vs MCD and Others

Mr. Justice S. Ravindra Bhat

Issue notice. Sh. Rahul Kumar, Sh. Rahul Gupta, Ms. Rani Chhabra and Sh. B.L. Chawla, Advocates accept notice on behalf of the respondents. Learned counsel agree that the matter can be disposed of finally.

The present appeal impugns a judgment and order of the learned Single Judge dismissing Civil Suit 774/2001. The occasion for delivering the impugned judgment was an application, being I.A. No. 920/2012, preferred by the third defendant, i.e. Shri Swatanter Cooperative House Building Society Ltd. (hereafter referred to as "the society"). The plaintiffs had claimed several reliefs, including decrees for permanent injunction and declaration, in respect of three plots-nos. 40, 41 and 42, measuring 401.34 sq. yards in Kalindi Colony, Village Kilokri, New Delhi.

During the course of the submissions made on behalf of the parties by the learned counsel, it was highlighted that various aspects, such as the plaintiffs'' possession in respect of the suit land had been examined on earlier occasions by the Court, and that based on the materials on record, issues were struck on 05.09.2005. During the course of hearing, learned counsel for the society had sought to emphasize that the suit no longer served any purpose and sought to rely on the recitals of the two sale deeds executed in October, 1965 by the society in favor of the plaintiffs'' predecessor-in-title.

After some hearing, learned counsel for the parties agreed that since the suit was at the stage of trial, the interests of parties would be best sub-served having regard to the reliefs claimed and the issues struck, if the impugned order is set-aside and the regular trial is resumed and completed as expeditiously as possible.

Having regard to the statements made by the plaintiff and the defendants, who are represented by counsel, as well as the authorised representative of the concerned defendant society, i.e. Sh. P.S. Taneja, who had filed an affidavit in support of the application, I.A. No. 920/2012, this Court hereby sets-aside the impugned judgment and order dated 22.11.2012, which had the effect of dismissing the suit. Consequently, the suit is restored to the file of this Court and the trial shall be subject to the following directions:

(i) The parties agree that the oral evidence shall be recorded by the Local Commissioner. Apparently, the affidavit evidence of the plaintiffs has been placed on record. Accordingly, the Court hereby appoints Sh. S.M. Chopra, ADJ (Retd), (Mob. No. 9213230349) as Local Commissioner to record the evidence of the parties in the suit.

(ii) Before proceeding to record evidence, the parties shall admit/deny the documents on record through affidavits in accordance with which same shall be exhibited. The Local Commissioner shall then proceed to indicate a schedule or calendar for recording of evidence and filing of affidavit evidence of the defendants, preferably on day-to-day basis, subject to his convenience.

(iii) Recording of evidence by the Local Commissioner shall be completed on or before 15.04.2013.

So far as the interim arrangement is concerned, it was brought to the notice of the Court that after the impugned judgment was delivered, the MCD has taken-over possession of the plot and is proposing to develop it as a park. This Court is of the opinion that having regard to the order made previously on 20.09.2005 which operated and subsisted during the entire pendency of the suit till 22.11.2012, the most equitable and appropriate course would be that MCD hands-over possession of the said three plots to the plaintiff on or before 10.01.2013 and that the parties appear before the Local Commissioner on the same date, i.e. 10.01.2013. The same shall be evidenced in writing and affidavit of compliance filed in that regard by the MCD within two weeks from today. The plaintiffs in turn are directed to ensure that the said suit lands are not alienated, transferred or possession handed-over to any third party. The plaintiffs shall not create any other rights; in addition, the plaintiffs shall ensure that the said lands are properly maintained and do not pose any health-hazard. The plaintiffs shall, at their cost, ensure consolidated fencing of the three plots, which are adjacent to each other. The plaintiffs shall file affidavit undertaking to comply with the terms set-out in this part of the order within three weeks. The plaintiffs shall ensure that the fencing is done within one week of the handing-over the possession of the plot and shall file affidavit of compliance. It is clarified that this direction-to the MCD-to hand-over possession of the plot to the plaintiffs shall not be construed as expression on the merits in any manner and the parties are bound to prove the claims made by them on which issues were struck on 05.09.2005.

After recording of evidence, it is open to the plaintiffs or to other parties to move the Single Judge for expeditiously hearing of the suit, and decide the same finally, having regard to the circumstances that it was filed 11 years ago and was at the stage of recording of evidence when the impugned judgment was delivered. It is also open for either parties to seek hearing of the suit on any Thursday, deemed convenient by the learned Single Judge.

The costs of the Commissioner are quantified as Rs. 2 lakhs, to be borne by the plaintiff, subject to final appropriation, having regard to the outcome of the suit. It is open to the learned Single Judge to pass appropriate orders in this regard. It is brought to the notice of the Court that another suit was filed by the appellant which was directed to be consolidated with Suit No. 774/2001 was dismissed by learned Single Judge on the same day, in the light of the impugned judgment dated 22.11.2012. Learned counsel claims that a separate appeal would be preferred in respect of that dismissal. The appeal is disposed of in the above terms with no order as to costs.