Delhi Urban Shelter Improvement Board v. Asha Devi

RAJIV SAHAI ENDLAW, J. SEPTEMBER 17, 2018 'gsr'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 17th September, 2018 + RSA 134/2018 DELHI URBAN SHELTER IMPROVEMENT BOARD .... Appellant Through: Mr. Parvinder Chauhan, Adv. Versus ASHA DEVI ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CMs No.37897/2018 & 37899/2018 (both for exemptions) 1. Allowed, subject to just exceptions. 2. The applications are disposed of. RSA 134/2018, CM No.37898/2018 (for condonation of delay of 9 days in filing the appeal) & CM No.37900/2018 (for stay) 3. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 9th May, 2018 in RCA No.01/2017 of the Court of Additional District Judge-01 (East)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 12th August, 2016 in Suit No.58/10/01 (New Suit No.8929/2016) of the Court of Additional Senior Civil Judge (East)] allowing the suit filed by the respondent / plaintiff against the appellant / defendant, for permanent injunction restraining the appellant / defendant from dispossessing the respondent / plaintiff from house No.12/421, Phase-I, J.J. Resettlement Colony Kalyan Puri, Delhi. 4. The appeal is accompanied with an application for condonation of nine days delay in filing thereof. However, the question of consideration of the said application would arise only if the appeal was to be entertained. 5. The counsel for the appellant / defendant has been heard and the copies of the suit court record filed along with the memorandum of appeal perused. 6. The respondent / plaintiff claimed to be the allottee of the plot underneath the house vide letter dated 24th June, 1976 of the then Slum Department of Delhi Development Authority (DDA) under the then family planning drive and in lieu of sterilization operation which the respondent / plaintiff had undergone. It was the case of the respondent / plaintiff in the plaint that the defendants i.e. the DDA and the Slum & J.J. Wing of the Municipal Corporation of Delhi (MCD), without issuing any notice to show cause to the respondent / plaintiff, were threatening to seal the said house allotted to the appellant / defendant. 7. The Slum & J.J. Wing of the MCD contested the suit inter alia on the ground that the subject property fell in the jurisdiction of Slum & J.J. Department of the MCD and the Slum Department of the DDA had no link therewith. It was further pleaded that the subject house was constructed as a sample house to guide the allottees of J.J. plots of Kalyan Puri to construct their allotted plots on the same pattern and the said house was not for allotment. 8. DDA, in its written statement, also pleaded that the Resettlement Colony Kalyan Puri fell under the jurisdiction of Slum & J.J. Department of MCD and it had no link therewith. 9. The Suit Court, on the basis of aforesaid pleadings and issues framed in the suit, allowed the suit and restrained the defendants therein, "from interfering in the peaceful possession of plaintiff in the suit property i.e. House no.12/421, J.J. Colony, Kalyan Puri, Delhi without due process of law". It was however clarified that the decree shall not operate qua the portions of the house already sealed as no relief had been claimed in the suit qua the same. 10. Upon first appeal being preferred by the appellant / defendant as the successor of Slum & J.J. Department of MCD, the First Appellate Court agreed with the judgment and decree of the Suit Court, dismissed the appeal and confirmed the decree of the Suit Court. 11. The counsel for the appellant / defendant draws attention to page 38 of the paper book being copy of the allotment letter vide which the respondent / plaintiff claims allotment and has contended that the same also records the house as a model house. It is reiterated that it was not meant for allotment and was never allotted. It is further contended that there was no post of OSD (JJ)