Ram Kishan (Deceased) Through Legal Representatives & Anr. vs Manish Kumar & Anr.

Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL JURISDICTION

Civil Appeal Nos. 4538-4539 of 2023

Ram Kishan (Deceased) through Legal Representatives & Anr. …. Appellant(s) Versus Manish Kumar & Anr. …Respondent(s) With Writ Petition (Civil) No. 692 of 2023

JUDGMENT

C.T. RAVIKUMAR, J.

1. 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. In the above-

mentioned Writ Petition, the petitioner prays for Signature Not Verified Digitally signed by Vijay Kumar Date: 2023.07.24 issuance of a writ of mandamus and/or for an appropriate 17:50:57 IST Reason:

Civil Appeal Nos. 4538-4539 of 2023 Page 1 of 18

writ/order or direction in the nature of mandamus,

directing the Delhi Cantonment Board (hereinafter

referred to as, ‘the DCB’) to de seal the subject property

i.e., CB-97, Naraina Village, Delhi Cantt. Obviously, the

subject property involved in the Civil Appeals and the

Writ Petition is one and the same. The parties are

referred to in this judgment in accordance with their

status and rank in the captioned Civil Appeals unless

otherwise specifically mentioned.

2. Heard, Mr. Abhishek Sharma, learned counsel for

the appellants and Mrs. Avnish Ahlawat, learned counsel

for the respondents.

Civil Appeal Nos. 4538-4539 of 2023

3. CM (M) No.998 of 2021 was filed by Sh. Ram Kishan,

appellant No.1 (deceased) herein who was defendant

No.1 in Civil Suit No.759 of 2018 instituted by the first

respondent herein. Deceased Ram Kishan filed the said

Civil Appeal Nos. 4538-4539 of 2023 Page 2 of 18 petition under Article 227 of the Constitution of India on

being aggrieved by the dismissal of his application filed

under Section 151 of the Code of Civil Procedure, 1908

(for brevity, ‘CPC’) seeking dismissal of the said Civil

Suit, as per the order dated 13.04.2021. The High Court

as per the impugned order dated 11.11.2021, dismissed

the petition and confirmed the order of the Trial Court.

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.

The same was challenged by the appellants in CM (M)

No.1089 of 2022 and it was disposed of as per judgment

dated 10.04.2023. The aforesaid order dated 11.11.2021

and judgment dated 10.04.2023 are under challenge in

the captioned Civil Appeals. Though there is delay in

filing the Special Leave Petition against the order dated

11.11.2021, we condone the delay in filing the same.

Civil Appeal Nos. 4538-4539 of 2023 Page 3 of 18

4. Essentially, the contention unsuccessfully raised

before the Trial Court and the High Court by the

appellant herein for dismissal of Civil Suit No.759 of 2018

was that in view of the order dated 25.09.2020 passed by

this Court in Praveen Kumar v. Delhi Cantonment

Board & Ors. in Writ Petition (C) No.723 of 2020, the

subject suit filed by the plaintiff could not be entertained.

In fact, the same contention was reiterated before us.

5. 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 contextual situation, it is

only apposite to refer to the relevant portions of the

order of this Court dated 25.09.2020 in Praveen Kumar’s

case (supra), that read thus: -

“13. By the petitioner having accepted the jurisdiction of DCB over the land in question, the

Civil Appeal Nos. 4538-4539 of 2023 Page 4 of 18 controversy which has been initiated by him would come to an end. The petitioner is at liberty to submit a building plan for sanction to DCB. Without this Court determining whether the building plan should be sanctioned, we direct the DCB to take a decision on the building plan to be submitted, within a period of four weeks from the date of its submission. The decision of the DCB shall be taken in accordance with law and the prevailing building regulations and bye laws. 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.

14. The above directions have been issued by this Court in exercise of the power under Article 142 of the Constitution to do complete justice, since the petitioner has in the proceedings before this Court, unconditionally accepted the jurisdiction of DCB.”

6. Bearing in mind the contentions, we have carefully

scanned the aforesaid extracted portions from the

Civil Appeal Nos. 4538-4539 of 2023 Page 5 of 18 decision in Praveen Kumar’s case. We are at a loss to

understand how the appellant could raise a plea that in

the light of the aforesaid order dated 25.09.2020, the

subject Civil Suit filed by the respondent herein should

not be entertained, rather, could not be maintained. It

needs no labour to bring home the fact that it is nothing

but a cavillous contention.

7. The full text of Praveen Kumar’s case (supra),

produced as Annexure P-3 in the instant appeals, would

reveal that as a matter of fact the said Writ Petition viz.,

W.P. (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. Be that as it may, the indubitable

position is that as per the said order in SLP (C) No.8866

of 2020, this Court had not entered into any finding

conferring any kind of indefeasible right on the

appellant. The appellant who approached this Court

Civil Appeal Nos. 4538-4539 of 2023 Page 6 of 18 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. That apart, it was

specifically observed therein that the DCB should take

decision thereon in accordance with law and the

prevailing building regulations and bye laws. Evidently,

such directions were given by this Court in invocation of

the power under Article 142 of the Constitution of India

to do complete justice as the petitioner therein/the

appellant herein had unconditionally accepted the

jurisdiction of DCB in the matter. At this juncture, it is

relevant to refer to the appellant’s own case as is obvious

from page ‘B’ of the captioned Civil Appeal Nos. 4538-

Civil Appeal Nos. 4538-4539 of 2023 Page 7 of 18 4539 of 2023 (arising out of SLP (C) Diary No.22266 of

2023). The relevant recital therein runs as follows: -

“Petitioner challenged the jurisdiction of DCB but ultimately accepted to it and is in the process of constructing the property after obtaining due sanction from DCB.” (emphasis added)

8. The further position discernible from the pleadings

in the SLP, is that there is no sanctioned building plan

with the petitioner. As a matter of fact, the DCB rejected

the building plan on 05.04.2021 and aggrieved by its

rejection he filed W.P. (C) No.8347 of 2021 before the

High Court of Delhi.

9. The tenability of the prayer of the appellant for

dismissal of Civil Suit No.759 of 2018 filed by the

respondent herein has to be appreciated in the aforesaid

background. 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

Civil Appeal Nos. 4538-4539 of 2023 Page 8 of 18 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. That apart, it is a fact

that the first respondent who is the plaintiff in Civil Suit

No.759 of 2018 was not made a party either in the Writ

Petition (C) No.723 of 2020 or in SLP (C) No.8866 of 2020.

Moreover, the order dated 25.09.2020 in Praveen

Kumar’s case (supra) would reveal (as noted

hereinbefore) that it was without making any

observation that this Court permitted the

appellant/petitioner to submit building plan for sanction

and consequently, directed the DCB to take a decision

thereon in accordance with law and the prevailing

building regulations and bye laws. 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

Civil Appeal Nos. 4538-4539 of 2023 Page 9 of 18 subject property. After, taking note of the fact that

appellant who initially challenged the jurisdiction of the

DCB abandoned the same and accepted its jurisdiction

and then sought to withdraw the SLP, but not by way of

withdrawal simpliciter, disposed of SLP (C) No. 8866 of

2020 in the manner mentioned hereinbefore, i.e., only

with a direction to the DCB to consider application for

sanction of building plan in accordance with law and the

prevailing building regulations and bye laws. Thus, it

can be seen that the appellant herein did not seek for any

relief as relates the pending Civil Suit No. 759 of 2018

before this Court and this Court also did not make any

observation in respect of the pending suit. In short, in

such circumstances, how can the appellant be heard to

contend that in the light of the order dated 25.09.2020,

the Civil Suit No.759 of 2018 cannot be entertained any

further.

Civil Appeal Nos. 4538-4539 of 2023 Page 10 of 18

10. 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 2021, 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.

11. Now, the question is whether the order dated

10.04.2023 in CM (M) No.1089 of 2022 invites

interference. As noticed hereinbefore, as per the order

impugned before the High Court, the Trial Court allowed

the application by the plaintiff/the first respondent

herein under Order XIV, Rule 5, CPC, for deletion of

issue Nos.1 and 2 framed in Civil Suit No.759 of 2018 and

deleted the said issues. The deleted first issue was

whether the suit property falls within the jurisdiction of

DCB. Obviously, the prayer for its deletion was

Civil Appeal Nos. 4538-4539 of 2023 Page 11 of 18 considered and allowed in view of order dated

25.09.2020 passed by this Court in SLP (C) No.8866 of

2020. We have already found that as per order dated

25.09.2020, annexed in the Appeals as Annexure P-3, the

appellant herein who was disputing the jurisdiction of

DCB has accepted the jurisdiction of DCB over the

subject land. 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. When that be the position itself,

deletion is not available to be challenged.

12. Issue No.2 that was deleted was whether the

provisions of Section 250 of the Cantonments Act, 2006

(hereinafter referred to as, ‘the Act’) would bar the suit

filed by the first respondent/the plaintiff. Obviously,

after analysing the said provision, the Trial Court

Civil Appeal Nos. 4538-4539 of 2023 Page 12 of 18 negatived the objection of the appellant herein that it

would bar the suit. Section 250 of the Cantonments Act

reads thus: -

“Section 250 Cantonments Act, 2006

250. Courts not to entertain proceedings in certain cases.

(1) After the commencement of this Act. no court shall entertain any suit, application or other proceedings in respect of any order or notice unless an appeal under section 340 is preferred and the same is disposed of by the appellate authority under sub- section (3) of section 343 of this Act.

(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.

13. Going by the aforesaid provision the bar would

apply in respect of any order or notice unless an appeal

under Section 340 of the said Act is preferred and the

Civil Appeal Nos. 4538-4539 of 2023 Page 13 of 18 same is disposed of by the Appellate Authority under

sub-section 3 of Section 343 of the Act. 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. This factual

finding based on the provisions under Section 250 has

been confirmed by the High Court as per the impugned

judgment dated 10.04.2023. There is absolutely no

material on record which would go to show that the said

factual finding viz., there is no notice or order issued

against the first respondent/the plaintiff by the

Cantonment Board under the said Act, is factually

incorrect. In view of the provisions under the said

Section and the aforesaid factual finding, we find no

reason to interfere with the deletion of issue No.2, in the

factual background obtained. In short, we do not find

any illegality or infirmity warranting interference with

the order dated 10.04.2023 of the High Court that

Civil Appeal Nos. 4538-4539 of 2023 Page 14 of 18 confirmed the order dated 13.04.2021 passed by the

Trial Court in allowing the deletion of the

aforementioned issues. Resultantly, the captioned Civil

Appeals stand dismissed. The pending application(s)

stands disposed of.

Writ Petition (Civil) No. 692 of 2023

14. The captioned Writ Petition has been filed seeking

issuance of writ of mandamus or appropriate writ or

direction in the nature of mandamus directing the DCB to

de seal the subject property i.e., CB-97, Naraina Village,

Delhi Cantt, as noted earlier. 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. the common order in

Writ Petition (C) No.723 of 2020 and SLP (C) No.8866 of

2020. It would reveal that during the course of the said

proceedings Interlocutory Application No.93630 of 2020

Civil Appeal Nos. 4538-4539 of 2023 Page 15 of 18 was filed therein on behalf of the writ petitioner, who is

also the appellant in Civil Appeal Nos. 4538-4539 of 2023.

The prayers made in the said IA have been extracted in

Annexure P-3 order dated 25.09.2020. Prayer No. ‘d’

therein reads thus: -

“d) Direct the DCB de-seal the property of the Petitioner, on the approval of the Petitioners’ building plan”

15. The afore extracted prayer No.(d) under Annexure

P-3 itself would reveal that the writ petitioner had sought

for de-sealing the property only on the approval of its

building plan. We have already noted that the writ

petitioner himself got no case that the building plan

submitted by him was sanctioned. 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

Civil Appeal Nos. 4538-4539 of 2023 Page 16 of 18 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. There

cannot be any doubt with respect to the fact that the

question of de-sealing is also a matter which is

intertwined with the issues arising for consideration in

the pending Civil Suit, in view of the attendant

circumstances. At any rate, in the light of Annexure P-3

order dated 25.09.2020, the writ petitioner is not legally

Civil Appeal Nos. 4538-4539 of 2023 Page 17 of 18 entitled to seek such a prayer at this stage. In the said

circumstances, the Writ Petition has to fail as the prayer

sought for therein is not grantable at this stage.

16. Consequently, the Writ Petition stand dismissed.

The pending application(s) shall stand disposed of.

……………………, J.

(C.T. Ravikumar)

……………………, J.

(Sanjay Kumar)

New Delhi;

July 24, 2023

Civil Appeal Nos. 4538-4539 of 2023 Page 18 of 18