Sh. Peeyush Agarwal vs Delhi Development Authority

Rajiv Sahai Endlaw, J.

CM No. 18303/2013 (for exemption)

Allowed, subject to all just exceptions. The application is disposed of.

RFA 536/2013 & CMs No. 18302/2013 (for condonation of 3 days delay in filing the appeal), 18304/2013 (for condonation of 24 days delay in refiling the appeal) & 18301/2013 (for stay)

The appeal impugns the judgment and decree dated 4th June, 2013 of the Court of Additional District Judge (ADJ)-01 (North-East), Karkardooma Courts, Delhi of dismissal in limine of CS No. 77/2013 (wrongly mentioned in the judgment as CS No. 77/2003), I.D. No. 02402C0146802013 filed by the appellant on the ground of the appellant/plaintiff having no cause of action to file the suit.

Though this is a first appeal which ordinarily is to be considered after requisitioning the Trial Court record but considering the nature of the controversy, the counsel for the appellant/plaintiff has been heard finally in the appeal. In this light of the matter, it is also not considered necessary to deal with the applications for condonation of delay in filing the appeal and in re-filing the appeal.

The appellant/plaintiff instituted the suit from which this appeal arises to restrain the respondent/defendant/Delhi Development Authority (DDA) by a decree of permanent injunction from dispossessing the appellant/plaintiff from the land forming part of Khasra No. 16 min. admeasuring 8 bighas at Charahagah, Shumali Estate also known as Shastri Park, Delhi except in accordance with law. It was inter alia the case of the appellant/plaintiff,

(a) that he is a bona fide member of Delhi Peasants Co-operative Multi Purpose Society Ltd.;

(b) that the said Society had been allotted land of which the aforesaid land formed a part;

(c) that in June, 1956 a decision was taken by the respondent/defendant/DDA to take over possession of the land from the Society and to re-allot the same to the Society upon certain terms and conditions;

(d) that certain disputes and differences arose and the Society filed W.P. (C) No. 14260/2004 in this Court which was disposed of vide order dated 19th April, 2006 restraining the respondent/defendant/DDA from resuming the possession of the land from any member of the Society except by following due process of law;

(e) that the suit land had been allotted by the Society to its member Sh. Shafiq Ahmad who had transferred the same to the appellant/plaintiff who had been accepted as a member of the said Society;

(f) that the appellant/plaintiff was thus entitled to the benefit of the restraint order in the writ petition aforesaid;

(g) however the respondent/defendant/DDA was threatening to dispossess the appellant from his land without due process of law.

The learned ADJ has in the impugned judgment dismissing the suit held that this Court in the order aforesaid disposing of the writ petition having already directed the respondent/defendant/DDA not to dispossess any member of the Society and since the appellant/plaintiff claims to be a member of the Society, there was no cause of action in favour of the appellant/plaintiff for the suit.

It has as such been enquired from the counsel for the appellant/plaintiff as to what is the wrong with the impugned order.

The counsel for the appellant/plaintiff has contended that for the purposes of rejection of the plaint, the plaint alone is to be seen and since the appellant/plaintiff had pleaded in the plaint that notwithstanding the restraint order in the writ petition, the respondent/defendant/DDA was threatening to forcibly dispossess the appellant/plaintiff from the land, the suit could not have been dismissed on the ground of there being no cause of action therefor.

It has been enquired from the counsel for the appellant/plaintiff, whether the appellant/plaintiff claims to be covered by the order aforesaid in the writ petition.

The answer is in the affirmative.

Once the appellant/plaintiff claims to be covered by the order in the writ petition, so restraining the respondent/defendant/DDA, even if it were to be held that in violation of the same, the respondent/defendant/DDA was threatening to forcibly dispossess the appellant/plaintiff, the appellant/plaintiff cannot seek a second similar restraint order. If the respondent/defendant/DDA inspite of being a statutory body were to act in violation of one injunction order, securing a second injunction order would not protect the appellant/plaintiff any further.

No error is thus found in the order of the learned ADJ.

No other argument has been urged. There is no merit in the appeal, which is dismissed. No order as to costs.

Decree sheet be drawn up.