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RSA No.166/2009 Page 1 HIGH COURT OF DELHI
Date of Decision: November 17, 2014
Date of Decision: November 17, 2014
RSA 166/2009
M/S ANUCHEM POLYMERS ..... Appellant
Through: Mr.Ramesh Kumar, Advocate
M/S ANUCHEM POLYMERS ..... Appellant
Through: Mr.Ramesh Kumar, Advocate
VERSUS
NORTH DELHI POWER LTD. ..... Respondent
Through: Mr.Manish Srivastava and Mr.Rahul Malhotra, Advocates
Through: Mr.Manish Srivastava and Mr.Rahul Malhotra, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
ORAL
The appellant had merely sought a mandatory injunction against the respondent to restrain the respondent to claiming misuser charges, subletting charges etc. and the said suit has been decreed on merits by trial court but the First Appellate Court vide impugned judgment has set aside trial court judgment and dismissed appellant’s suit by holding it to be not maintainable as the relief of declaration was not sought.
The factual matrix of this case already stands noticed in the opening paragraphs of the impugned judgment and needs no reiteration.
At the hearing, it was submitted by learned counsel for appellant that the First Appellate Court ought not to have provided an opportunity to appellant to amend the suit to enable the appellant to seek declaration and on mere technicality the appeal ought not to have been decided
2014:DHC:6109 RSA No.166/2009 Page 2 against the appellant, as on merits, appellant had succeeded before the trial court.
Counsel for respondents submits that there is no infirmity in the impugned judgment and so this appeal deserves to be dismissed.
Upon hearing and on perusal of the trial court judgment, I find that on the ground of technicalities, substantial justice cannot be sacrificed.
Cause of substantial justice deserves to be preferred over the technical considerations. It has been so reiterated by the Apex Court in Esha
Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar
Academy & ors. (2013) 12 SCC 649.
In the peculiar facts and circumstances of this case this appeal is allowed and the impugned judgments are set aside subject to cost of
`25,000/- to be deposited with the Prime Minister Relief Fund within four weeks while permitting the appellant to amend the plaint to include the relief of declaration as well. Appellant is granted four weeks to file the amended plaint, which ought to be tried by the trial court in accordance with law and with expedition.
Learned counsel for parties submit that the suit of appellant has to be tried by the Additional District Judge concerned.
Let the parties appear before the concerned District Judge on 28th November, 2014 who shall assign the suit to a court of competent jurisdiction.
[[[ (SUNIL GAUR)
JUDGE
NOVEMBER 17, 2014 mb 2014:DHC:6109
The appellant had merely sought a mandatory injunction against the respondent to restrain the respondent to claiming misuser charges, subletting charges etc. and the said suit has been decreed on merits by trial court but the First Appellate Court vide impugned judgment has set aside trial court judgment and dismissed appellant’s suit by holding it to be not maintainable as the relief of declaration was not sought.
The factual matrix of this case already stands noticed in the opening paragraphs of the impugned judgment and needs no reiteration.
At the hearing, it was submitted by learned counsel for appellant that the First Appellate Court ought not to have provided an opportunity to appellant to amend the suit to enable the appellant to seek declaration and on mere technicality the appeal ought not to have been decided
2014:DHC:6109 RSA No.166/2009 Page 2 against the appellant, as on merits, appellant had succeeded before the trial court.
Counsel for respondents submits that there is no infirmity in the impugned judgment and so this appeal deserves to be dismissed.
Upon hearing and on perusal of the trial court judgment, I find that on the ground of technicalities, substantial justice cannot be sacrificed.
Cause of substantial justice deserves to be preferred over the technical considerations. It has been so reiterated by the Apex Court in Esha
Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar
Academy & ors. (2013) 12 SCC 649.
In the peculiar facts and circumstances of this case this appeal is allowed and the impugned judgments are set aside subject to cost of
`25,000/- to be deposited with the Prime Minister Relief Fund within four weeks while permitting the appellant to amend the plaint to include the relief of declaration as well. Appellant is granted four weeks to file the amended plaint, which ought to be tried by the trial court in accordance with law and with expedition.
Learned counsel for parties submit that the suit of appellant has to be tried by the Additional District Judge concerned.
Let the parties appear before the concerned District Judge on 28th November, 2014 who shall assign the suit to a court of competent jurisdiction.
[[[ (SUNIL GAUR)
JUDGE
NOVEMBER 17, 2014 mb 2014:DHC:6109