IMPORTANT POINT
De-sealing of property – Writ of mandamus in absence of any legal right, cannot be granted – Question of de-sealing can be agitated in pending Civil Suit.

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 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.

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 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 vs. Delhi Cantonment Board and Others 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 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