Delhi Urban Shelter Improvement Board v. Om Parkash & Ors.

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. C.M. No.9561/2014 (condonation of delay)

2. For the reasons stated in the application, delay of 36 days in filing the appeal is condoned. C.M. stands disposed of. + RSA No.140/2014 and C.M. No.9559/2014 (stay) 2014:DHC:2843

3. Counsel for the appellant states that by mistake memo of parties filed in this Court is not reflective of the correct memo of parties as per the memo of parties filed in the trial court and therefore he will file a fresh amended memo of parties within one week. Let that be done.

4. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is filed against the impugned judgment of the first appellate court dated 2.12.2013. The first appellate court by the impugned judgment dismissed the appeal of the present appellant filed against the judgment of the trial court dated 7.1.2011. Trial court by its judgment had decreed the suit for possession and mesne profits with respect to the suit property measuring 200 sq yds, forming part of khasra no.306, situated in the revenue Estate of village Seelam Pur, Shahdara, Delhi which was filed by the plaintiffs/respondent nos.[1] and 2.

5. Appellant was the defendant no.2 in the suit. Defendant no.1 in the suit/respondent no.5 herein was the MCD. Defendant no.2 was originally a department in the defendant no.1 and which was carved out from the defendant no.1 giving the same a separate entity. Defendant nos.[3] to 6 (of which only two defendants i.e respondent nos.[3] and 4 in this appeal are reflective as stated in para[3] above qua memo of parties) did not effectively contest the suit because they did not lead any evidence. So far as appellant is concerned, admittedly as per the written statement it claimed no title to the suit property and this is so recorded in the paras 6 and 15 of the impugned judgment of the first appellate court. The aforesaid paras 6 and 15 of the impugned judgment are based upon para 6 of the written statement filed by the appellant in the trial court.

6. Whereas the defendant nos.[3] to 6 i.e including respondent nos.[3] and 4 herein claimed ownership of the suit land, however, the appellant/defendant no.2 did not claim any title to the suit land. The defendant nos.[3] to 6 claimed rights in the suit land on the ground of long possession but, since they led no evidence the position which hence emerged was that respondent nos.[1] and 2/plaintiffs were held to be the owners of the suit land and consequently the suit for possession and mesne profits was decreed.

7. In my opinion, the first appeal which was filed before the first appellate court and even this Second Appeal which is filed by the appellant/defendant no.2 ought not to have been filed. I fail to understand as to how instructions can be given for filing of an appeal by a defendant who is not a contesting party as per its pleadings and which does not claim any title to the suit property. By filing of unnecessary first appeal before the first appellate court and now a Second Appeal in this Court, not only there is wastage of public moneys with which the appellant is being run but there is also wastage of time of the officers of the appellant and which time definitely could have been used better elsewhere. In fact, filing of the appeals leads the Court to an impression that appellant is fighting proxy litigation on behalf of the defendant nos.[3] to 6 in the suit and which is a totally undesirable position.

8. In view of the above, this appeal is wholly misconceived, and without any merit inasmuch as it is filed by a defendant in a suit which did not claim any title to the suit property. Therefore while dismissing this appeal let the Chief Legal Officer of the appellant file an affidavit in this Court as to why unnecessary appeals were filed before the first appellate court and in this Court by the appellant who as per its own pleadings has nothing to do with the suit property. This affidavit be filed in this Court within six weeks and within which period the said affidavit be also placed before the governing body of the appellant for the governing body to know that its legal officers are acting in a most irresponsible manner by fighting proxy litigations resulting in wastage of public moneys and unnecessary utilization of time which should have been spent elsewhere for public good.

9. This appeal is accordingly dismissed, subject to the aforesaid observations. List in Court on 9th July, 2014 to ensure compliance of the present judgment of placing of the affidavit of the Chief Legal Officer before the governing body of the appellant and the filing of that affidavit of the Chief Legal Officer in this Court. MAY 27, 2014 VALMIKI J. MEHTA, J. Ne