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
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
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. {Para 15}
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
Civil Appeal Nos. 4538-4539 of 2023
Ram Kishan (Deceased) Vs Manish Kumar & Anr.
Author: C.T. RAVIKUMAR, J.
Dated: July 24, 2023.
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 abovementioned
Writ Petition, the petitioner prays for
issuance of a writ of mandamus and/or for an appropriate
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.
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 3 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.
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 5 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 6 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 7 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 8 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 9 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 10 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.
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 12 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
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 14 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 15 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 16 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
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
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
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