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Chander Kanta and ors. Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 750 of 1984
Judge
Reported in1985(9)DRJ275
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantChander Kanta and ors.
RespondentMunicipal Corporation of Delhi and ors.
Advocates: Y.P. Ahuja,; Mukul Rohatagi and; Arun Jaitley, Advs
Excerpt:
civil procedure code - section 115--scope of order 1 rule 10--provision of section 343 of d. m. c. act--impleadment of third parties is illegal in those proceedings. revision allowed--order of impleadment set aside. - - if the court is satisfied that the show cause notice and demolition notice have been issued by the commissioner in accordance with section 343 of the delhi municipal corporation act the court cannot proceed further as the suit for injunction is not maintainable within the meaning of sub-section (4) of section 343 of the delhi municipal corporation act......injunction is limited to determine whether any such action has been taken under section 343 of the delhi municipal corporation act. in case no such action has been taken by the commissioner he is to be restrained from demolishing the structure in question except by following the procedure prescribed in section 343 of the delhi municipal corporation act. it has been further held that the civil court has no jurisdiction to decide whether the structure is authorised or not, whether it is old or new. if the court is satisfied that the show cause notice and demolition notice have been issued by the commissioner in accordance with section 343 of the delhi municipal corporation act the court cannot proceed further as the suit for injunction is not maintainable within the meaning of sub-section.....
Judgment:

Sultan Singh, J.

(1) The petitioners filed a suit for injunction against the Municipal Corporation Delhi restraining it from taking any demolition action in regard to the property in question. M/s. S. D. Marker & Company Pvt. Ltd. respondent No. 4 in this revision petition filed an application under Order 1 Rule 10 of the Code of Civil Procedure (for short 'the Code') for being implicated as a defendant on the ground that without impleading it the issues could not be fairly decided. The trial court by impugned order dated 7th June, 1984 directed the said company to be imp leaded as a defendant. The petitioners have filed this revision challenging the order of the trial court. A similar question arose before me in Smt. Tulsi Devi and another v. Municipal Corporation of Delhi and another, in C. R. No. 615 of 1984 decided on 14th November, 1984 wherein I have observed that the question for decision in such suits is whether the show cause notice and demolition notice were served and the jurisdiction of the civil court in such suits for injunction is limited to determine whether any such action has been taken under Section 343 of the Delhi Municipal Corporation Act. In case no such action has been taken by the Commissioner he is to be restrained from demolishing the structure in question except by following the procedure prescribed in Section 343 of the Delhi Municipal Corporation Act. It has been further held that the civil court has no jurisdiction to decide whether the structure is authorised or not, whether it is old or new. If the court is satisfied that the show cause notice and demolition notice have been issued by the Commissioner in accordance with Section 343 of the Delhi Municipal Corporation Act the court cannot proceed further as the suit for injunction is not maintainable within the meaning of sub-section (4) of Section 343 of the Delhi Municipal Corporation Act. Impleading under Order 1 Rule 10 of the Code is thus contrary to law.

(2) Learned counsel for the respondent .in this case submits that under Section 41(1) of the Specific Relief Act, 1963 the plaintiff is not entitled to an injunction if the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court. I do not agree. Section 343 of the D. M. C. Act is a special provision prohibiting the civil court from entertaining the suit of the nature mentioned therein. I am, thereforee, of the opinion that the question for decision before the civil court in a suit for injunction of such type is only to see whether the provisions of Section 343 regarding show cause notice and demolition notice have been followed. In case the civil court has come to the conclusion that the provisions have not been followed then an injunction would be issued to the Corporation restraining it from demolishing the structures in question except by following the procedure prescribed in Section 343 of the Act. On the other hand if the courts come to the conclusion that show cause notice and demolition notice have been issued according to this Section the court cannot proceed further as the suit for infuriation is not maintainable within the meaning of sub section (4) of Section 343 of the D.M.C. Act.

(3) The trial court has acted illegally in impleading the applicant defendant to the suit. The impugned order is liable to be set aside. The revision petition is accepted setting aside the Order dated 7th June, 1984 impleading M/s.S.D. Marker & C). Pvt. Limited as a defendant to the quit. The application of the said company is dismissed with no order as to costs.


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