RSA/91/2013 of M/S CAPITAL LAND BUILDERS (PVT) LTD Vs MUNICIPAL CORPORATION OF DELHI & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 15.01.2018+RSA 91/2013

M/S CAPITAL LAND BUILDERS (PVT) LTD.

..... AppellantThrough:Mr. Randhir Pandey, Advocate.

Versus

MUNICIPAL CORPORATION OF DELHI & ANR. .....Respondents

Through:Mr. Sunil Goel, Standing Counselwith Ms. Supreet B. And Mr. MayankGoel,AdvocatesforRespondentNo.1.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J. (Oral)

1.The present second appeal has been filed by the appellant against thedismissal of their appeal being RCA No. 78/2011 on 01.03.2013, preferredagainst the judgment dated 19.04.2005 in Suit No. 210/1981, wherein thelearned Civil Judge, Delhi, had found that the suit was barred by the rule ofres judicata.

2.For the sake of convenience, the parties are referred to as the‘plaintiff’ and the ‘defendant’ in the same sequence in which they werearrayed in the original suit.

3.The facts of the case are that the plaintiff/ appellant had sought apermanent injunction against the defendant No.1/Municipal Corporation of

Delhi (MCD) and defendant No.2/Bhagwan Dass Nagar Residents WelfareAssociation (Regd.), seeking restrainment against the latter from takingpossession of land admeasuring 1.5 acres, earmarked for school, and 193.6square yards of land for Petrol Pump, situated in Khasra No. 81-83 ofVillage Shakurpur, New Delhi, which the plaintiff claimed it owned. Thiscase was instituted in 1981.After the framing of issues, pending therecording of evidence, the plaintiff had filed another suit for injunction i.e.Suit No.151/1997, seeking restrainment of the defendants from interferencein the aforesaid property of 1.5 acres. The issues were framed in the lattersuit too and subsequently, after trial, it was dismissed.The first and thesecond appeals against its dismissal were also dismissed.In thesecircumstances, the defendant No. 2 had moved an application seekingdismissal of the first suit on the ground of res judicata, since similar reliefshad been sought and dismissed apropos the suit property between the sameparties.

4.Considering the above facts, the learned Trial Court dismissed thepending first suit i.e. Suit No. 210/1981 as being barred by the doctrine ofres judicata. The First Appellate Court upheld the dismissal.

5.In effect, now this is the sixth round of litigation for the same relief bythe plaintiff. It is the plaintiff’s contention that since Suit No.151/1997 wasdismissed without any evidence, the subsequent suit cannot be treated asbeing barred by the doctrine of res judicata i.e. on account of decision in apreviously instituted suit for the same relief. In support of his contentions,he relies upon the following judgments:-

(i) M. Nagabhushana vs. State of Karnataka & Ors., (2011) 3 SCC 408

(ii)D.L. F. Universal Ltd. vs. Arjan Singh & Ors., AIR 1986 Delhi 381(DB)

(iii) Syed Mohd. Salie Labbai (Dead) by L.Rs. & Ors. vs. Mohd. Hanifa(Dead) by L. Rs. & Ors., AIR 1976 SC 1569

(iv) Gurbaksh Singh vs. Bhooralal, AIR 1969 SC 1810

(v)Sheodan Singh vs. Daryao Kunwar, AIR 1966 SC 1332(vi) State of Maharashtra & Anr. vs. M/s National Construction Company,Bombay & Anr., AIR 1996 S.C. 2367

(vii) Kunjan Nair Sivaraman Nair vs. Narayanan Nair & Ors., (2004) 3SCC 277

(viii) Chandradhoja Sahoo vs. State of Orissa & Ors., AIR 2013 S.C. 367

6.In rebuttal, the learned counsel for the defendant states that theprinciple of res judicata would be applicable, the appeals too weredismissed as being without merit, hence this second appeal too should bedismissed.

7.The Court is of the view that the prayers sought in both the suits arenearly identical. Suit No. 210/81, had sought permanent injunctionrestraining the defendants from interfering in the land admeasuring 1.5 acresearmarked for school, as fully described in the lay-out plan of BhagwanDass Colony, Rohtak Road, Delhi, out of Khasra No.81/1 in the estate ofVillage Shakurpur, Rohtak Road, Delhi. The subsequent suit being Suit No.151/1997 had sought restrainment of the defendants, their agents andemployees from interfering in the aforesaid site, as an interim measure.

8.In the second suit, the learned Trial Court observed that:-

“7. Plaintiff failed to lead any evidence despite the repeatedopportunities.Finallylastopportunitywasgivenonopportunities.Finallylastopportunitywasgivenon

23.11.2000 for 22.1.2001 but none of the witness was present.Thereafter, the plaintiff evidence was closed.”

9.Considering the question of burden of proof in the issue: whether theplaintiff was the owner of the suit land was upon the plaintiff, and it hadchosen not to lead any evidence, there being no evidence establishing theownership of the plaintiff, the learned Trial Court decided the first issueagainst the plaintiff. Similarly, the issue Nos. 2, 3 and 4 i.e. (i) whether thepossession of the suit land had been taken by the defendant No. l on19.09.1977; (ii) whether the suit was barred under Order II Rule 2 CPC onaccount of the previously instituted Suit No.850/1994; and (iii) whether theplaintiff had suppressed material facts, the Trial Court held that the plaintiffhad sought restrainment against the defendant from interfering in the landadmeasuring 1.5 acres for the school out of Khasra No.81/1, which reliefwas apparently covered in the previously instituted suit. Hence, the secondsuit being barred by the provisions of Order II Rule 2 CPC, this issue wasalso decided against the plaintiff.

10.The learned counsel for the MCD submits that in any case, after thedismissal of the previously instituted suit, the second suit seeking identical/similar reliefs ought to have been dismissed, being covered by the principlesof res judicata.

11.From the preceding discussion it is evident that both the suits hadsought the same reliefs, regarding the same property and concerned the sameparties. But each time, the plaintiff failed to prove its case. Hence the suitsand the successive appeals were rightly dismissed.This appeal too isdestined to suffer the same fate because in view of its aforesaid antecedents,it is covered by the principle of res judicata.

12.In the aforesaid circumstances, the Court finds no reason to interferewith the impugned order. Accordingly, the appeal is dismissed.

NAJMI WAZIRI, J.

JANUARY 15, 2018/sb