CM(M)/1015/2016 of HAMID KHAN Vs MUNICIPAL CORPORATION OF DELHI & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CM(M) 1015/2016

HAMID KHAN

..... PetitionerThroughMr.Aruna Mehta and Mr.SanjeevMehta, Advocates.

versus

MUNICIPAL CORPORATION OF DELHI & ANR..... RespondentsThroughMr.G.D.Mishra, standing counsel forR-1 & 2.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

O R R%04.10.2016

CM No. 37043/2016 (exemption)

Exemption is allowed subject to all just exceptions.

CM(M) 1015/2016

1.By the present petition, the petitioner seeks to impugn the order dated13.07.2016 by which an application filed by the petitioner under Order 6Rule 17 CPC was dismissed.

2.The petitioner has filed the suit for permanent injunction against therespondents to restrain the respondents from impounding cattle of thepetitioner from his present address till the allotment of diary plot to thepetitioner and also to direct the respondents to verify the fact of existence ofdiary at the noted address and to allot plot at Ghoga Diary Colony as perrules and regulations. The plaint noted the address from where the diary is

being run as E-25, B-29/627, Indira Camp, Trilokpuri, Delhi.

3.The suit was filed on 19.03.2010. Now, in 2016 the petitioner hasmoved the present application for amendment stating that the steno who hadtaken down the dictation to type the plaint was hard of hearing and could nothear the other address of the petitioner, namely, 30/475, Trilok Puri, Delhibut he only heard the second address which is mentioned in the plaint. Dueto this, the second address in the plaint was not reproduced. It is also statedthat the earlier counsel was having weak eye sight and was addicted to wineand could not check the amended plaint properly and filed the plaint withoutnecessary corrections. It is further stated that due to poverty and illiteracy,the petitioner was not in position to spend money for certified copies andrequested the counsel several times to return the file as the said counsel wasnot attending the court regularly. Thereafter, it is stated that the petitionerengaged his relative who after going through the file noted the lapses in thebody of the plaint. Hence, the present application for amendment.

4.A perusal of the application shows that it seeks to add the relief ofdeclaration seeking decree of declaration that the inspection carried out bythe respondents on 09.02.2008, 16.04.2008 and 01.04.2010 be declared nulland void. It also seeks to reproduce the second address to state that the diaryis also being run from the said address i.e. 30/475, Trilok Puri, New Delhi.Other miscellaneous facts to support the said contention are also sought tobe added.

5.The trial court by the impugned order noted that the case wasoriginallyfiledbythecounsel-Sh.PradeepKatara.Subsequently,vakalatnama was filed by another counsel, namely, Sh. P.K.Srivastava whoalso filed an application for amendment dated 21.11.2011. The said

application was withdrawn. The said counsel-Sh. P.K.Srivastava also filedan application under Order 39 Rules 1 & 2 CPC. Hence, the trial courtconcluded that the contention of the petitioner that the previous counsel didnot pursue his case diligently due to addiction of wine appears to be anafterthought. Especially, in view of the fact that no name of the counsel hasbeen mentioned in the application who did not pursue the case diligently.The trial court also noted that the cause of action for the relief of declarationaccrued in 2010 itself which has now become time barred. The applicationwas accordingly dismissed.

6.Learned counsel appearing for the petitioner has reiterated thesubmissions made in the application stating that the petitioner is illiterateand could not comprehend the proceedings as no counsel explained to himthe proceedings.

7.Learned counsel appearing for the respondent has pointed out that inthe written statement it was clearly stated that pursuant to directions of theHigh Court in CWP 3791/2000 titled as Common Cause Society vs. Union ofIndia & Ors., modern diary colony was being developed for re-location ofeligible diaries from urban lands. On 08.03.2007, the High Court appointedsix member Stray Cattle Committee to carry out its directions. As per theverification/inspection conducted by the Zonal Verification Team which wasconstituted by the Committee on 09.02.2008 in the presence of thepetitioner, no diary was found at his diary address. It is further stated thatthis was duly communicated to the petitioner on 01.04.2010. Writtenstatement was filed in 2010 itself.

8.In the light of this fact, the petitioner now six years later seeks adecree of declaration to declare the inspection report dated 09.02.2008 and

other consequential documents as void. In my opinion, in the facts andcircumstances of the case, the relief sought is clearly barred by limitation.The petitioner cannot plead ignorance of the contents of the writtenstatement filed in his own suit on the various grounds stated in theapplication. The amendment sought to introduce time barred claim andcannot normally be permitted(see: Ganesh Trading Co. v. Moji Ram, (1978)2 SCC 91).

9.Evenotherwisetheseareinspections/verificationscarriedoutpursuant to the directions of the High Court in CWP 3791/2000.

10.There is no merit in the present petition and the same is dismissed.

OCTOBER 04, 2016rb

JAYANT NATH, J