Sh Khalifa Chain Sukh v. Delhi Development Authority

1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court.

2. The present petition challenges the impugned order dated 1st October, 2021 by which the applications of the Respondent/Delhi Development Authority (hereinafter as ‘DDA’) under Order IX Rule 13 CPC and under Section 5 of the Limitation Act, 1963 (hereinafter “Limitation Act”) for condonation of delay, have been allowed by the Trial Court in CS No.152/20 titled Sh. Khalifa Chain Sukh v. DDA, thereby setting aside the ex-parte judgment/decree of the Trial Court, dated 16th November, 2019, and restoring the suit.

3. The brief facts are that a suit for permanent injunction was filed by the Petitioner/Plaintiff (hereinafter “Plaintiff”) against the DDA seeking a restraint order in respect of demolition of shops. The case of the Plaintiff is that he is the owner of 12 shops bearing Pvt. Nos. 1 to 12, situated over Plot No. 3A/112, Mpl. No. 11957, W.E.A, Karol Bagh, New Delhi-110005 (hereinafter “suit property”). The reliefs sought in the plaint are as under: 2021:DHC:3962 “It is therefore, most respectfully prayed that a decree for permanent inject may kindly be passed in favour of the plaintiff and against the defendant including its agent, servants and officials etc. retraining them from demolishing the shops in question situated over plot of land bearing NO. 3A/112, Municipal No.11957, Sat Nagar, Karol Bagh New Delhi or otherwise interfering in possession in respect of the shows in question as shown ‘in site plant attached.”

4. The said suit was, initially, rejected by the Trial Court on 21st October, 2018. The said order was appealed by the Plaintiff and in the appeal the matter was stated to have been remanded for fresh adjudication vide order dated 17th December, 2018. On 18th December, 2018, the Plaintiff appeared before the Trial Court and summons were sent to the DDA. The summons were served upon the DDA, however, since none appeared for DDA, on 9th September, 2019, ex parte evidence was recorded and the suit was decreed ex parte on 16th December, 2019. Upon the said order being served upon DDA, an application was filed by DDA under Order IX Rule 13 CPC along with Section 5 of the Limitation Act, in which the impugned order has been passed allowing the application of the DDA and ex parte decree has been set aside.

5. Ld. counsel appearing for the Plaintiff submits that no sufficient cause has been shown by DDA as to why it did not enter appearance in the suit once summons was served. He submits that DDA cannot be shown any leniency, by virtue of being a Government authority. Reliance is placed upon ML Mahajan v. DDA & Anr., 1992 RLR 242 to argue that the Government cannot have a better privilege than any other party before a Court of law.

6. On behalf of the DDA, Mr. Vachher, ld. Counsel, submits that the DDA does not recognise the Plaintiff as the owner of this suit property. He submits that the land is actually Government land and eviction proceedings under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated against the occupants of all the 12 shops and a detailed order being F. No.D/7(4)Basti Reghar/96/214 dated 30th July, 2018 was passed by the Estate Officer. Pursuant to the said order, it is stated that four shops have already been demolished, in respect of one shop the proceedings are going on before the Estate Officer, and for seven shops the occupants have challenged the Estate Officer’s order in appeal and there is a stay granted therein. He submits that the Plaintiff has no locus standi and cannot claim ownership in Government land. A copy of the said order has been emailed to the Court Master.

7. Heard ld. counsels for the parties. A perusal of the impugned order dated 1st October, 2021 shows that the Trial Court has gone into the question as to whether sufficient cause is established or not. The Court has noticed that there was an error in DDA’s office wherein the summons was not duly recorded into the S&S-I register of DDA, which led to a situation wherein the ex parte decree came to be passed. The Trial Court also considers the fact that eviction proceedings have already been initiated by DDA and also takes into account the pandemic situation for which the Supreme Court had also passed orders extending the limitation period in proceedings ongoing during the pandemic period, in In Re: Cognizance of Limitation [Suo Motu WP(Civil) No.3/2020, dated 8th March, 2021]. Since valuable rights were being compromised due to the ex parte decree, the Trial Court has allowed the application with costs of Rs.7,000/-. The reasoning of the Trial Court is set out below:

8. The case of the Plaintiff is that he has ownership rights in the suit property, i.e., over all 12 shops. The plaint and other relevant pleadings are not placed on record and neither is the evidence placed on record. The ex parte judgment which has been placed on record shows that the only claim is on the basis of construction. A perusal of the order passed by the Estate Officer dated 30th July 2018, shows that there is a long history of proceedings wherein various occupants have been claiming rights in the land. The said order records that the property bearing No. 3-A/112, Basti Reghar, Khasra No.2592, WEA Karol Bagh, New Delhi 110005 is a public premises. It records that, even previously vide order dated 24th January 1997, the Estate Officer had assessed damages against some occupants who had even paid damages. Again, notices were sent to some further occupants and even a public notice was issued. Finally, eviction order was passed. This sequence of events is recorded in the order dated 30th July, 2018, as below: