In the captioned Civil Appeals by Special Leave, the appellants assail order dated 11.11.2021 in CM (M) No.998 of 2021 and the judgment and order dated 10.04.2023 in CM (M) No.1089 of 2022 passed by the High Court of Delhi at New Delhi.
On 10.04.2023 the Trial Court, on the application of the first respondent/the plaintiff under Order XIV, Rule 5, CPC, for deletion of issue Nos.1 and 2 framed in Civil Suit No.759 of 2018, allowed it and deleted issue Nos.1 and 2. A perusal of the order of the Trial Court dated 13.04.2021 and the High Court dated 11.11.2021 would reveal that the Courts had considered the prayer for dismissal of the suit founded on the decision in Praveen Kumar’s case (supra). In the event that the petitioner applies for sanction within a period of two weeks from today, DCB shall not give effect to its notices of demolition until it communicates its decision in regard to the building plan of which sanction is sought by the petitioner. (C) No.723 of 2020 was dismissed as not pressed and that it was SLP (C) No.8866 of 2020 which was disposed of, on the afore-extracted lines as per the order dated 25.09.2020.
The appellant who approached this Court challenging the jurisdiction of the DCB over the land ultimately accepted jurisdiction of DCB over the same in the matter of sanctioning of building plans and thereupon, without determining the question whether the building plan should be sanctioned or not, this Court only directed the DCB to take a decision on the building plan, which was then permitted to be submitted within the period stipulated therein.
The position revealed from the facts narrated above and also the materials on record would go to show that the respondent herein instituted Civil Suit No.759 of 2018 much before the filing of Writ Petition (C) No.723 of 2020 and also SLP (C) No 8866 of 2020 by the appellant herein before this Court.
Another conspicuous relevant aspect revealed from the order dated 25.09.2020 is that this Court had also taken note of the pendency of Civil Suit No 759 of 2018 seeking injunction against the appellant herein and also the sealing of the subject property. When this be the undisputed and indisputable position obtained from the pleadings and the materials on record, we find absolutely no infirmity or illegality in the order dated 11.11.2021 passed by the High Court in CM (M) No.998 of confirming the order of dismissal of the Trial Court on the application of the appellant for dismissal of Civil Suit No.759 of 2018, as per order dated 13.04.2021. When the said factum of acceptance of the jurisdiction of DCB by the appellant was recorded by this Court in the order dated 25.09.2020, the petitioner cannot, legally, have any grievance or objection regarding the deletion of the aforesaid issue relating the jurisdiction of DCB. (2) Notwithstanding anything contained in sub- section (1), every suit, application or other proceedings pending in any court immediately before the commencement of this Act shall continue to be dealt with and disposed of by that court as if the said section has not been brought into force.
The factual finding of the Trial Court is that no notice or order was issued against the first respondent herein/the plaintiff so as to attract the bar under Section 250 of the Act. In the context of the said prayer, it is relevant to refer to paragraph 7 of Annexure P-3 order dated 25.09.2020, marked as such in the captioned Writ Petition as well, viz.
When it was not sanctioned and the direction to the DCB under Annexure P-3 order dated 25.09.2020 was only to consider the application for sanction of the building plan in accordance with the prevailing building regulations and bye laws, the writ petitioner cannot be allowed, now, to contend that the DCB got an obligation to de-seal the property of the writ petitioner.
In the light of the position obtained from Annexure P-3 order dated 25.09.2020 that SLP (C) No.8866 of 2020 was disposed of only with a direction for consideration of his application for sanction of building plan, even after noting the fact that the property has been sealed and the Writ Petition (C) No.723 of 2020 heard along with the SLP was dismissed as not pressed under the said order, the prayer of the petitioner to issue a writ of mandamus in the absence of any legal right at this stage, cannot be granted.
Ravikumar)……………………, J.
Case Title: RAM KISHAN (DECEASED) THROUGH LEGAL REPRESENTATIVES Vs. MANISH KUMAR (2023 INSC 640)
Case Number: C.A. No.-004538-004539 / 2023
