Saroj Aggarwal v. Mehar Singh & Ors

RAJIV SAHAI ENDLAW, J. OCTOBER 10, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th October, 2018. + RSA 36/2018 & CM No.7634/2018 (for condonation of 80 days delay in re-filing the appeal) SAROJ AGGARWAL ..... Appellant Through: Mr. Praveen Suri, Adv. Versus MEHAR SINGH & ORS ..... Respondents Through: Mr. Yogendra Kumar Dwivedi, Adv. for R-1&2. Mr. Nirmal Kumar Agarwal, Adv. for R-3. Mr. Dhanesh Relan, Ms. Komal Sarout and Ms. Mrinalini Sharma, Advs. for SDMC. Mr. P. Raman Kumar Singh, Addl. SHO, Uttam Nagar. Mr. Jai Kishan Gautam, R-6 in person. Mr. Amarjeet Kumar, Adv. for R-7. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 5th August, 2017 in RCA No.325/2016 of the Court of Additional Senior Civil Judge (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 12th July, 2013 in Suit No.221/2010 of the Court of Civil Judge (Central)-05] of dismissal of the suit filed by the appellant/plaintiff for permanent and mandatory injunction. 2. This appeal came up first before this Court on 26th February, 2018 when, without expressing any satisfaction of the appeal entailing any substantial question of law and without framing substantial question of law, notice of the appeal was ordered to be issued. In the order dated 10th July, 2018, it was recorded, that respondents/defendants No.1 to 3 and 6 to 9 were reported to be served and the notice issued to respondents No.4&5 remained unserved; the counsels for respondent No.7 Mukesh Sharma, respondent No.6 Jai Kishan Gautam and respondent/defendant No.2 Laik Ram appeared. The counsel for the appellant/plaintiff, on that date was unable to satisfy this Court that the appeal entails any substantial question of law. Finding that the respondent/defendant No.4 Master Rajesh had not contested the suit, his service was dispensed with and subject to the appellant/plaintiff depositing costs of Rs.10,000/-, the hearing was adjourned to today for service of respondent/defendants No.5. 3. The counsel for the appellant/plaintiff states that costs have been deposited and has furnished the proof thereof to the Court Master, who confirms. 4. Though the report of summons issued to respondent/defendants No.5 is that he is unserved and with the further endorsement that he has sold the property but the counsel for the appellant/plaintiff states that the appellant/plaintiff has filed affidavit of service of respondent/defendant No.5 Parveen. 5. Today, only the counsel for respondent/defendant No.3 Vinod Sharma, respondent No.7 Mukesh Sharma, respondent No.6 Jai Kishan Gautam in person, counsel for the respondents/defendants No.1&2 Mehar Singh and Laik Ram and the counsel for the respondent/defendant No.8 Municipal Corporation of Delhi (MCD) appear. 6. The unrepresented respondents are proceeded against ex-parte. 7. The counsel for the respondent No.8 MCD states that respondents No.6&7 Jai Kishan Gautam and Mukesh Sharma were not parties to the suit or the first appeal and have been impleaded for the first time in this Regular Second Appeal. 8. The counsel for the appellant/plaintiff admits his mistake and states that the respondents No.6&7 be deleted from the array of respondents. It is explained that they were parties to a contempt petition filed in the suit and have been erroneously made parties in this appeal. 9. The names of respondents No.6&7 Jai Kishan Gautam and Mukesh Sharma are deleted from the array of respondents. 10. The Court Master to make an endorsement on the memorandum of parties under his signatures to the said effect in today's date. 11. The appellant/plaintiff, in the suit claimed the reliefs of (i) permanent injunction restraining the respondents/defendants from interfering in peaceful use and occupation and enjoyment of the appellant/plaintiff and the residents of Aggarwal Apartments of land admeasuring