Full Judgement
Delhi High Court
Amarjeet Malik vs Dda & Others on 14 February, 2024
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th February, 2024
+ CS(OS) 1170/2010
AMARJEET MALIK
..... Plaintiff
Through: Mr. Manashwy Jha, Advocate.
versus
DDA & OTHERS
..... Defendants
Through: Ms. Latika Malhotra, Ms. Vrinda
Kapoor and Mr. Vishal Vaid,
Advocates for D-1.
Mr. Sunil Mittal Sr. Advocate with
Mr. Maldeep Sidhu and Mr. Harish
Kumar Mehra, Advocates for D-3 to
D-6.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A.8278/2023 (under Order IX Rule 4 read with Section 151 CPC filed on behalf of the plaintiff seeking recall of the order dated 06.09.2022)
1. The application under Order IX Rule 4 read with Section 151 CPC, 1908, has been filed on behalf of the plaintiff, to recall the order dated 06.09.2022, whereby the application bearing I.A. No. 2285/2018, was dismissed for non-appearance.
2. It is submitted in the application that the plaintiff has filed a suit for Declaration, Permanent Injunction and Mandatory Injunction as the defendant Nos. 3 to 6 have illegally and unlawfully encroached upon the public land bearing Khasra No. 394/340/82 measuring 8 bighas and 17
Signature Not Verified DigitallySigned By:VIKAS ARORA CS(OS) 1170/2010 Page 1 of 5 Signing Date:22.02.2024 06:44:20 Biswas despite the land having been acquired by the Government and the acquisition upheld up to the Supreme Court. Defendant Nos. 3 to 6 had filed a Civil Suit bearing CS(OS) No. 1619/1998 and fraudulently, by forging and manipulating the revenue record, have obtained an ex-parte Decree declaring defendant Nos. 3 to 6 as owners of the land by claiming that it falls in Khasra No. 394/341/82 and to which the notification of acquisition does not apply.
3. The present suit was filed in this Court, in the year 2010 but on account of change in pecuniary jurisdiction, it was transferred to the District Courts vide Order dated 10.12.2015, where an application was filed by the plaintiff to enhance the pecuniary value of the suit to Rs. 600 Crores and consequent to the amendment which was allowed vide Order dated 11.03.2016, the suit was transferred back to this Court on 27.09.2017.
4. Thereafter, the objection was taken that the deficit court fees on the enhanced valuation of Rs. 600 Crores was payable by the plaintiff, as was observed in the Order dated 16.10.2017. Thereafter, the plaintiff failed to appear and the suit was dismissed in default on 16.01.2018.
5. Subsequently, the plaintiff filed an application bearing I.A. No. 2285/2018 under Order IX Rule 4 read with Section 151 CPC, 1908, for restoration of the suit but this application got dismissed for non-appearance vide Order dated 06.09.2022.
6. The plaintiff then filed a second set of applications under Order 9 Rule 4 read with Section 151 CPC bearing I.A. No. 3247/2023 and 3246/2023 for restoration of the suit. On account of a technical defect as the prayer was for restoration of suit instead of restoration of the application under Order IX Rule 4 read with Section 151 CPC, the same was withdrawn
Signature Not Verified DigitallySigned By:VIKAS ARORA CS(OS) 1170/2010 Page 2 of 5 Signing Date:22.02.2024 06:44:20 by the plaintiff vide Order dated 20.03.2023.
7. Hence, this present application has been filed for restoration of the earlier application bearing I.A. No. 2285/2018 under Order 9 Rule 4 read with Section 151 CPC, for recall of the order dated 06.09.2022 and for the restoration of the original suit bearing CS(OS) No. 1170 of 2010 to its original number.
8. It is submitted in the application that the plaintiff was regularly appearing through counsel but was unable to appear in the Court on 06.09.2022 on account of being stuck in Patiala House Courts and thereafter, in the heavy traffic due to some diversion and VIP movement. His application under Order IX Rule 4 read with Section 151 CPC, was consequently dismissed. When he appeared later, he came to know that the application had already been dismissed for non-appearance.
9. The plaintiff has submitted that the non-appearance on the part of the counsel for the plaintiff, was unintentional and was due to unavoidable circumstances. It is, therefore, submitted that the order dated 06.09.2022 whereby the application was dismissed for non-appearance be recalled and the application bearing No. 2285/2018 under Order 9 Rule 4 read with Section 151 CPC, be restored for adjudication and thereafter, the original suit bearing CS(OS) No. 1170 of 2010 be restored to its original number.
10. The application is vehemently opposed on behalf of the defendants, who have submitted that by way of the present suit filed in the year 2010, the plaintiff is intending to challenge the judgment and decree of the Court dated 10.09.2002, which has already attained finality. It is further submitted that when the Court observed that the deficit court fees on the valuation of Rs. 600 Crores is liable to be paid, the plaintiff intentionally
Signature Not Verified DigitallySigned By:VIKAS ARORA CS(OS) 1170/2010 Page 3 of 5 Signing Date:22.02.2024 06:44:20 stopped appearing and the suit was dismissed in default. It is asserted that the present proceedings are gross abuse of the process of the Court and the application of the plaintiff should be dismissed with heavy costs.
11. Submissions heard.
12. Without going into the chequered history of this case and the applications filed for restoration, it emerges the present application is confined to setting-aside of the Order dated 06.09.2022, vide which is earlier application under Order IX Rule 4 CPC for restoration of the suit, had been dismissed for non-appearance. Though the application is filed under Order IX Rule 4 read with Section 151 CPC, but this provision is applicable to the restoration of the suit and not an application. There is in fact, no provision under CPC dealing with the restoration of the application and relief so claimed can be considered in exercise of inherent jurisdiction under Section 151 CPC.
13. The explanation given by the plaintiff for non-appearance on 06.09.2022 is that the counsel had got stuck in the Patiala House Courts and in heavy traffic on account of which, he was unable to appear. The plaintiff has filed the application on 06.10.2022, which is within the timeframe of 30 days. There was inherently no delay or lethargy on the part of the plaintiff in moving the application, which has been done with promptitude.
14. Considering the reasons given in the application for restoration of the earlier application, the same is allowed and the earlier application bearing I.A. No. 2285/2018 is hereby restored to its original number for adjudication.
15. List on 23.02.2024 for consideration of I.A. No. 2285/2018 under Order IX Rule 4 read with Section 151 CPC, for recall of the order dated
Signature Not Verified DigitallySigned By:VIKAS ARORA CS(OS) 1170/2010 Page 4 of 5 Signing Date:22.02.2024 06:44:20 06.09.2022 and for the restoration of the original suit bearing CS(OS) No. 1170 of 2010 to its original number.
(NEENA BANSAL KRISHNA) JUDGE FEBRUARY 14, 2024 RS/JN
Signature Not Verified DigitallySigned By:VIKAS ARORA CS(OS) 1170/2010 Page 5 of 5 Signing Date:22.02.2024 06:44:20
