Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 1 June, 2018.
+ CM(M) 743/2017
PRATAP SINGH AND ORS ..... Petitioners
Through: Mr. Abhimanyu S. Khatri, Adv.
Versus
RAMJAS FOUNDATION ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.25502/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM(M) 743/2017 & CM No.25501/2017 (for stay)
3. This petition under Article 227 of the Constitution of India impugns
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the order (dated 11 May, 2017 in Case No.95639/2016 of the Court of
Civil Judge, Central District, Tis Hazari Courts, Delhi), deciding against the
petitioners/defendants a preliminary issue framed in the suit filed by the
respondent/plaintiff against the petitioners/defendants.
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4. The petition came up before this Court first on 21 July, 2017, when
it was enquired from the counsel for the petitioners/defendants as to how a
petition under Article 227 of the Constitution of India was maintainable and
whether not the impugned order constitutes a decree within the meaning of
CM(M) 743/2017 Page 1 of 8
Section 2(2) of the Code of Civil Procedure, 1908 (CPC) and would be
appealable as such.
5. The counsel for the petitioners/defendants sought to withdraw the
petition with liberty to take appropriate remedy. However, since the said
aspect was being considered by me in another matter pending before this
Court, intending the orders to be passed in Chamber, the file was sent to the
Chamber.
6. However, the orders in the other matter as well as this matter
remained to be passed and the files went on a back burner. The counsel for
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the petitioners/defendants, on 28 August, 2017 mentioned the matter and
handed over copies of judgments in Vidyodaya Trust Vs. Mohan Prasad
(2006) 7 SCC 452 and Murari Lal Vs. Madan Lal Moondra
MANU/DE/2223/2015 in support of maintainability of the petition.
7. I have considered the controversy.
8. The respondent/plaintiff instituted the suit, from which this petition
arises, for permanent injunction restraining the petitioners/defendants from
trespassing into Khasra No.366 of Village Chaukari Mobarakbad and from
demolishing the boundary wall there around as shown in the site plan filed
with the plaint.
9. The petitioners/defendants contested the suit inter alia pleading that
the respondent/plaintiff have no locus standi to institute the suit and to seek
injunction against the petitioners/defendants who were the rightful and
lawful owners of the land and it was the respondent/plaintiff who was a
trespasser and the respondent/plaintiff had no right to seek equitable and
discretionary relief of injunction against the petitioners/defendants who are
CM(M) 743/2017 Page 2 of 8
the lawful owners. It was further pleaded that the respondent/plaintiff was
party to the demarcation proceedings conducted by the Revenue Officials in
the months of March/April, 1988 and wherein it was found that the
respondent/plaintiff had tressspassed over 3 bighas 5 biswas i.e. 3250 sq.
yds. of land; the respondent/plaintiff did not file any objections to the said
demarcation report and did not dispute the same and instead of surrendering
the possession of the land, on which it had been found to have encroached,
to the petitioners/defendants, had filed the suit. It was also the plea of the
petitioners/defendants that the suit filed by the respondent/plaintiff was a
counter-blast to the suit filed by the petitioners/defendants.
10. In the aforesaid state of pleadings, the following preliminary issue
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was framed in the suit on 19 May, 2016:
“Whether the suit for simplicitor permanent injunction is
maintainable or not being barred u/s 41(h) of the Specific
Relief Act? OPP”
11. The learned Civil Judge, in the impugned order has recorded (i) that
it was the contention of the counsel for the petitioners/defendants that the
real dispute between the parties was a boundary dispute which was required
to be adjudicated by the Revenue Authorities under Section 28 of the Delhi
Land Revenue Act, 1954 and the Competent Authority thereunder had got
the land demarcated; (ii) that the remedy available to the
respondent/plaintiff to avoid the said demarcation report was to file an
appeal before the Appellate Authority in terms of Section 64 of the Delhi
Land Revenue Act; (iii) that the respondent/plaintiff, instead of availing of
CM(M) 743/2017 Page 3 of 8
the said efficacious remedy, had filed the suit which was barred under
Section 41(h) of the Specific Relief Act, 1963.
12. The learned Civil Judge, vide the impugned order, has decided the
preliminary issue against the petitioners/defendants reasoning (a) that the
petitioners/defendants in their written statement had not disputed the factum
of possession of the respondent/plaintiff over the subject land and the
existence of the wall qua which the relief had been claimed; (b) that
according to the petitioners/defendants, the wall in question was
constructed by the respondent/plaintiff five years before the filing of the
suit; (c) that thus the petitioners/defendants had admitted the
respondent/plaintiff to be in possession of the suit property, though claimed
the said possession to be as a trespasser; (d) that even a trespasser in long
settled possession of immoveable property is entitled to protect his
possession against any unlawful interference, even by registered owner of
the property; (e) that the relief of injunction claimed in the suit could not be
granted by the Revenue Authorities, either under the provisions of Section
28 or under Section 64 of the Delhi Land Revenue Act; (f) that the suit was
thus not barred by Section 41(h) of the Specific Relief Act or under Section
185 of the Delhi Land Reforms Act, 1984.
13. However, this order is concerned with the maintainability of this
petition under Article 227 of the Constitution of India and not with the
merits of the impugned order.
14. I have since, in Lalit Yadav Vs. Delhi Development Authority
MANU/DE/7871/2017, qua a preliminary issue holding a suit to be not
maintainable and dismissing the suit, held as under:
CM(M) 743/2017 Page 4 of 8
(I) that Supreme Court in Rishabh Chand Jain Vs. Ginesh
Chandra Jain (2016) 6 SCC 675 held that an order conclusively
determining the rights of parties with regard to one of the issues is a
decree and where order passed is a decree under law, no revision lies
under Section 115 of the CPC and it is only appealable under Section
96 of the CPC; an order dismissing the suit, without trial, on the
ground of res judicata , did not cease to be a decree on account of a
procedural irregularity of non-framing of an issue and ought to be
treated as a decree, as if passed after framing the issue and on
adjudication thereof; it was further held that what is to be seen is the
effect and not the process and even if there is a procedural
irregularity in the process of passing such an order, if the order
passed is a decree under the law, no revision lies under Section 115
of the CPC, in view of the specific bar in Section 115 of the CPC;
(II) that even if the Court wrongly framed the preliminary issue or
under the preliminary issue decided matters which could not have
been decided without trial, the same would not make available
against the order, a remedy which is otherwise not available against a
decision on a preliminary issue;
(III) that Section 2(2) of the CPC defines ‘decree’ as a formal
expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may
be either preliminary or final.
CM(M) 743/2017 Page 5 of 8
15. In my view, it matters not for the purposes of determining, whether it
is a decree or not, whether the order on a preliminary issue results in
dismissal of the suit or in holding the suit to be maintainable. Section 2(2)
of the CPC defining the decree does not make any distinction between an
order, whether of dismissal of the suit as not maintainable or holding the
suit to be maintainable. All that is relevant for the purposes of Section 2(2)
of the CPC is whether the order, as regards the Court expressing it,
conclusively determines the rights of the parties with regard to any of the
matters in controversy. Just as both, an order or a judgment, allowing a suit
or dismissing the suit, after full trial, are a decree, so is the position with
respect to an order deciding a preliminary issue, whether holding the suit to
be maintainable and putting the suit to trial or holding the suit to be not
maintainable and dismissing the same.
16. However, Vidyodaya Trust and Murari Lal supra relied upon by the
counsel for the petitioners/defendants remained to be considered in Lalit
Yadav supra.
17. Supreme Court, in Vidyodaya Trust supra was concerned with a
challenge to two orders, one in a Revision Petition under Section 115 of the
CPC and one in a Writ Petition under Article 227 of the Constitution of
India, both arising from the same suit. The preliminary issue decided in the
suit was on the plea of non-maintainability of the suit under Section 92 of
the CPC. The suit was held to be maintainable. The Revision Petition
preferred by the defendants to the High Court was held to be not
maintainable for the reason of the order being an interlocutory one.
Thereafter, Writ Petition under Article 227 of the Constitution of India was
CM(M) 743/2017 Page 6 of 8
filed challenging the same order. Another learned Single Judge of the same
High Court dismissed the said Writ Petition as not maintainable holding the
proper remedy to be a Revision Petition and expressing doubt about the
correctness of the order holding the Revision Petition to be not
maintainable. It was in these facts that the Supreme Court, reproducing the
language of Section 115 of the CPC held, albeit on a concession, that the
Revision Petition was maintainable.
18. Supreme Court in Rishabh Chand Jain supra did not consider
Vidyodaya Trust supra. However, as would be apparent from the above,
Supreme Court in Vidyodaya Trust supra had no occasion to consider the
question, whether the order on preliminary issue constituted a decree and/or
whether a remedy of appeal was available thereagainst. The position before
the Supreme Court in Vidyodaya Trust supra was unique, of a subsequent
Coordinate Bench expressing doubt qua the view of the earlier decision
holding the Revision Petition to be not maintainable. Supreme Court
merely held the Revision Petition to be maintainable and that too, as
aforesaid, on concession and thus it cannot be said that there is any conflict
between Rishabh Chand Jain and Vidyodaya Trust supra and Vidyodaya
Trust does not lead me to take any different view from that taken by me in
Lalit Yadav supra.
19. That brings me to Murari Lal supra. A Coordinate Bench of this
Court therein was concerned with an order of dismissal of an application
under Order VII Rule 11 of the CPC and the order of dismissal, as not
maintainable, of an appeal preferred thereagainst. The challenge before this
Court was brought by way of a petition under Article 227 of the
CM(M) 743/2017 Page 7 of 8
Constitution of India and the question for adjudication as framed was of the
maintainability of an appeal against dismissal of an application under Order
VII Rule 11 of the CPC. It was held that an appeal is a statutory remedy
and there being no remedy of appeal from an order of dismissal of an
application under Order VII Rule 11 of the CPC, there was no error in the
order of the Additional District Judge holding the appeal to be not
maintainable.
20. As would be obvious from the above, the controversy in Murari Lal
supra was also different and this Court therein was not concerned with the
question as has arisen in the present case about the maintainability of this
petition under Article 227 of the Constitution of India.
21. In accordance with the view taken by me in Lalit Yadav supra, this
petition is not maintainable and is dismissed.
22. No costs.
23. Since there has been delay in passing this order, it is now being
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released as a judgment on 1 June, 2018 and the Court Master has
telephonically informed the counsel for the petitioners/defendants.
RAJIV SAHAI ENDLAW, J.
JUNE 01, 2018
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CM(M) 743/2017 Page 8 of 8