Ravinder Chaudhary v. Kishan Kumar Pachauri & Ors

RAJIV SAHAI ENDLAW, J. JULY 4, 2018 "pp"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 4th July, 2018 + C.R.P. No.176/2016 & CM No.39733/2016 (for stay). RAVINDER CHAUDHARY ..... Petitioner Through: Mr. Anuj Kumar, Adv. versus KISHAN KUMAR PAUCHAURI & ORS ..... Respondents Through: Mr. R.K. Sahni, Adv. for R-1. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 4th May, 2016 in CS No.360/2014 of the Court of the Additional District Judge-02 (NE), Karkardooma Courts, Delhi] in favour of the respondent no.1 / plaintiff and against the petitioner / defendant no.1 and respondents no.2 to 8 / defendants with respect to property bearing No.K-5/39A, Street No.33, West Ghonda, Delhi – 110 053, of (i) recovery of possession of the said property; (ii) of permanent injunction restraining creation of any third party interest or parting with possession of property except without due process of law; and, (iii) of declaration that the documents in possession of the petitioner / defendant no.1 and respondents no.2 to 8 / defendants in respect of title to the aforesaid property are null and void and of cancellation of said documents. 2. This Revision Petition under Section 115 of the CPC, instead of an appeal under Section 96 of the CPC, has been preferred against the impugned decree owing to the suit filed by the respondent no.1 / plaintiff, insofar as for recovery of possession, being titled as under Section 6 of the Specific Relief Act, 1963. In fact, in the said suit, mesne profits for unauthorized and illegal use and occupation were also claimed from the petitioner / defendant no.1 and respondents no.2 to 8 / defendants but which have not been granted. 3. The Revision Petition came up first before this Court on 25th October, 2016 and thereafter on 3rd November, 2016 when notice of the Revision Petition was ordered to be issued to the respondents. Vide subsequent order dated 8th March, 2017, on the respondent no.1 / plaintiff appearing before this Court, stay of the impugned order was granted. 4. On 12th July, 2017 it was found that besides respondent no.1 / plaintiff, respondents no.2,4,&8 / defendants only had been served and the petitioner / defendant no.1 had not taken any steps for service of the respondents no.3&5 to 7 / defendants; however the counsel for the petitioner / defendant no.1 stated that the interest of the petitioner / defendant no.1 and the respondents no.2 to 6 / defendants was the same. In this view of the matter, service of the unserved respondents no.3,5 to 7 was dispensed with. It was further informed that the respondent / defendant no.7 Kamlesh, shown as proforma respondent, is the wife of the respondent no.1 / plaintiff and the counsel for the respondent no.1 / plaintiff stated that the respondent no.1 / plaintiff has no adverse interest to the respondent no.7 / defendant. Hence the service of the respondent no.7 / defendant was also dispensed with. It was yet further informed that the respondent no.8 Sunita is the subsequent purchaser from respondent no.5 / defendant and the counsel for the petitioner / defendant no.1 stated that the respondent no.8 / defendant had been served and drew attention to the noting of the Court Master under the order dated 3rd November, 2016 to the said effect. Since none appeared for the respondent no.8 Sunita, she was on 12th July, 2017 proceeded against ex parte. 5. On 12th July, 2017, it was enquired from the counsel for the petitioner / defendant no.1, that since the decree impugned was not only of the relief of recovery of possession under Section 6 of the Specific Relief Act but also of permanent injunction and declaration coupled with cancellation of documents, how was the Revision Petition maintainable. 6. The counsel for the petitioner / defendant no.1 stated that the petitioner / defendant no.1 had earlier preferred RFA No.649/2016 against the impugned judgment and decree but wit