Dargah Paanch Peer v. Union of India & Ors

order dated 14th December, 2011 records that the appellant/plaintiff had not filed affidavits by way of evidence inspite of repeated opportunities and had instead been making applications one after another; in these circumstances, the appellant/plaintiff was directed to file the affidavits of evidence within eight weeks with advance copy to the counsel for the respondents/defendants and the suit was posted to 22nd March, 2012 for entire evidence of the appellant/plaintiff and it was made clear that no further adjournment shall be granted.

¶29On the next date i.e. 22nd March, 2012, the counsel for the respondents/defendants complained that no advance copies of the affidavits by way of evidence had been supplied. Before the Court also, the affidavits were not filed. No witness of the appellant/plaintiff was also present. Still, yet another opportunity was granted to the appellant/plaintiff subject to payment of costs.

¶30On the next dates i.e. 12th July, 2012 and 6th August, 2012, though the position was the same but adverse orders were not passed owing to the

Advocates abstaining from work.

¶31It was in these circumstances that the impugned order dated 7th August, 2012 dismissing the suit for non-prosecution was passed.

¶32Though the Court Master, on the trial court record has not been able to find the affidavit stated to have been filed by the appellant/plaintiff on 13th December, 2007 but the counsel for the appellant/plaintiff draws attention to an affidavit of Shri Abdul Malik of the appellant/plaintiff at pages 89 to 100 of the appeal paper book. The said affidavit is verified on 13th December, 2007 and attested on 14th December, 2007.

¶33However, as aforesaid, in none of the subsequent orders, there is any reference thereto.

¶34Without the appellant/plaintiff having sought to use the affidavit, stated to have been filed on 13th December, 2007, as an affidavit in evidence by way of examination-in-chief and having sought to examine Shri Abdul Malik as a witness thereon and having offered him for cross examination even on the said affidavit, and which admittedly was not done, the filing even if any of the said affidavit, on 13th December, 2007, would not at this stage come to the rescue of the appellant/plaintiff to contend that its suit was

wrongly dismissed for non-prosecution for not leading evidence when the affidavit by way of examination-in-chief was on record. It was for the appellant/plaintiff to have tendered the said affidavit in evidence and which was never done.

¶35Moreover, the affidavit if any filed on 13th December, 2007 is of no avail inasmuch as thereafter, as aforesaid, the appellant/plaintiff applied for amendment of the plaint and the trial Court record contains an amended plaint verified on 15th May, 2008.

¶36I am satisfied on perusal of the trial Court record that impugned order dated 7th August, 2012 dismissing the suit for non-prosecution does not suffer from any infirmity and does not require any interference. The appellant/plaintiff is found to have been given sufficient number of opportunities to lead its evidence. The suit was dismissed for non-prosecution only when appellant/plaintiff utterly failed to avail thereof. Without the appellant/plaintiff making out a case of its suit having been dismissed for non-prosecution, hastily or without giving it reasonable opportunity to prosecute the same and without the appellant/plaintiff satisfying the court that it had reasonable explanation for being not able to prosecute the suit, this court would not, as a largesse, grant another

opportunity. I may in this regard notice the grievance often heard of the Judges of District Judiciary that the High Court and the Supreme Court though caution them against granting repeated adjournments but when approached against their orders refusing adjournments and passing appropriate orders, without even recording that sufficient opportunity had not been given, grant another opportunity and remand the case.

¶37However, to satisfy my conscience I have perused the plaint on the Trial Court record. The suit has been filed by the appellant/plaintiff Dargah Paanch Peer through Shri Abdul Malik, a Khadim and Mujawar, for recovery of possession of land measuring 3 bigha 16 biswas of the Revenue Estate of Village Pilanji near Vinay Marg, Petrol Pump, Chanakya Puri, New Delhi and on which the respondent no.5 CSOI has constructed its building upon allotment of land made by the Government of India.

¶38I have enquired from the counsel for the appellant/plaintiff whether Shri Abdul Malik who is pursuing the said suit is authorised by the Delhi Waqf Board with respect to Dargah Paanch Peer on whose behalf this litigation is being pursued. The counsel for the appellant/plaintiff states that the Delhi Waqf Board has got nothing to do with the said Dargah. However, on enquiry whether not the property of Dargah is vested in Allah and

whether not it constitutes a Waqf, the counsel for the appellant/plaintiff agrees that it is so and it is the Waqf to the said extent. If the said Dargah is a Waqf, then the same would be governed by the Waqf Act, 1995 and Shri Abdul Malik cannot, without any authorisation, appropriate to himself the rights to act on behalf of Dargah. Delhi Waqf Board is informed to have not made any claim with respect to the land possession whereof is sought to be recovered by Shri Abdul Malik in the name of Dargah Paanch Peer.

¶39I am therefore satisfied that even on merits, no injustice has been caused to the appellant/plaintiff. Rather, the Trial Court record has copies of orders including of this Court in proceedings arising out of the suit, of the appellant/plaintiff being only interested in keeping the suit alive and not pursuing the same. Such a suit has been rightly dismissed for non prosecution after eight years of its institution and after five years of framing of issues and during which time the appellant/plaintiff failed to lead evidence.

¶40In the aforesaid scenario, need is not felt to go into the aspect of long delay of 1066 days in filing this appeal also and which is yet another indication of the casual manner in which this proceeding is being pursued.

¶41There is thus no merit in the appeal. Dismissed. I refrain from imposing costs on the appellant/plaintiff.

RAJIV SAHAI ENDLAW, J

MAY 09, 2016 'pp' ..

(corrected and released on 23rd May, 2016)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th May, 2016 + RFA No.835/2015 & CM No.29736/2015 (for condonation of 1066 days delay in filing the appeal). DARGAH PAANCH PEER ..... Appellant Through: Mr. M. Mohsin Israily, Adv. Versus UNION OF INDIA & ORS ..... Respondents Through: Mr. Chiranjiv Kumar, Adv. for R- 1,2&6. Mr. Rajiv Bansal with Ms. Niharika Ahluwalia and Ms. Arpita, Advs. for DDA. Mr. Roshan Lal Goel, Adv. for R-4. Ms. Jagrati Singh, Adv. for R-5. Mr. Peeyoosh Kalra, ASC with Ms. Sona Babbar and Ms. Mahua Kalra, Advs. for R-7 to 9. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure (CPC), 1908 impugns the orders dated 7th August, 2012 and 17th December, 2012 of the Court of Additional District Judge (ADJ), Central-07, Tis Hazari Courts, Delhi of dismissal of Civil Suit No.595/2004 filed by the appellant for non-prosecution and of dismissal of the application under Order IX Rule 9 of the Code of Civil Procedure, 1968 (CPC) filed by the appellant/plaintiff for restoration of the suit, respectively. 2. The appeal was accompanied with applications for condonation of 1066 days delay in filing and of 50 days delay in re-filing the appeal. 3. Vide order dated 8th December, 2015, the delay of 50 days in re-filing the appeal was condoned and notice of the application for condonation of 1066 days delay in filing the appeal was ordered to be issued to the (i) respondents no.1&2 Union of India (UOI), (ii) respondent no.3 Delhi Development Authority (DDA), (iii) respondent no.4 South Delhi Municipal Corporation (SDMC), (iv) respondent no.5 Civil Services Officer Institute (CSOI), (v) respondent no.6 Central Public Works Department (CPWD), (vi) respondent no.7 Commissioner of Delhi Police, (vii) respondent no.8 Station House Officer (SHO), Police Station (PS) Chanakyapuri, New Delhi and (viii) respondent no.9 Government of National Capital Territory of Delhi (GNCTD). 4. The counsels for all the respondents appear. 5. Trial Court record comprising of four voluminous volumes has also been received. 6. Being of the view that considering the nature of the impugned orders, viz of dismissal of the suit for non prosecution and dismissal of application for restoration of the suit, in the event of appeal being allowed, the suit will have to be remanded, the appeal, with the consent of counsels, is immediately taken up for hearing. 7. The counsels for the appellant and the counsel for the respondent no.5 CSOI have been heard. The contentions of the counsels for all the other respondents are the same as the contentions of the counsel for the respondent no.5 CSOI. 8. The Trial Court record has also been perused to the extent required. 9. I may at this stage record that the appellant, in the prayer paragraph in the memorandum of appeal, has sought setting aside of the orders dated 7th August, 2012 and 17th December, 2012, besides in Suit No.595/2004, also in Suit No.379/2001. On enquiry, the counsel for the respondent no.5 CSOI states that Suit No.379/2001 is the earlier number of Suit No.595/2004 and is not a separate suit. The counsel for the appellant has no idea in this respect. 10. I may further record that the order dated 7th August, 2012 also directs that the copy thereof be placed in Suit No.134/2008. On enquiry as to what is Suit No.134/2008, the counsels state that Suit No.595/2004 and Suit No.134/2008 were being taken up together by the learned ADJ and the copies of the orders in Suit No.595/2004 were placed on the file of Suit No.134/2008. On enquiry as to the fate of the Suit No.134/2008, it is informed that the said suit also stands dismissed in terms of the order dated 7th August, 2012. However on further enquiry whether there is any appeal against the dismissal of Suit No.134/2008, it is informed that there is none. 11. The statement of the counsel for the respondent no.5 CSOI that Suit No.379/2001 is the earlier number of Suit No.595/2004 does