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2003 Supreme(Del) 429
High Court Of Delhi
BADRI BHAGAT JHANDEWALAN TEMPLE - Appellant
Versus
DELHI DEVELOPMENT AUTHORITY - Respondent
Interim Application 2034 of 1990
Decided On : 05/02/2003
ALOK KUMAR, ANUSUYA SALWAN, L.R.GUPTA, R.P.Bansal
Headnote:Civil Procedure Code, 1908 - Order 9 Rule 13 — Setting aside ex parte decree — Negligence of defendant — None appeared on behalf of defendant and on couple of occasions court notice also served but no response on as many as 11 to 12 dates of hearing — Defendant was proceeded ex parte and suit decreed in favor of plaintiff — Application under Order 9, Rule 13 of CPC to set aside decree after an unexplained inordinate delay of more than five years — Not maintainable — Judgment not be set aside — Application dismissed.
Held :
Negligence of a lawyer in not appearing on one or two dates of hearing is understandable and aggrieved party can take advantage of such a negligence. But where the negligence and conduct of the party is of highest magnitude and is writ large, the party cannot take shelter behind its Advocate. If a party does not care to know about the status of its case or proceedings in the suit for years together when in the past hearings were fixed after a month, two month or so, such a party has to be shown the door and denied the discretion to set aside the ex parte proceedings or judgment passed against it. In this case the defendant did not try to know for five long years as to the status of the case. Defendant is having its office in the High Court Building itself. It has a staff and officers who maintain the record of each case and pursue on day today basis. Senior Law Officers are there to monitor and regulate the status of cases. They maintain the record as to assignment of cases to their lawyers from time to time. Still there was non-participation in the proceedings for more than five years and the defendant wants this court to set aside the judgment. It militates against the judicial conscience.
( 1 ) THE applicant-Judgment Debtor (J. D.) is Delhi Development Authority. It has moved an application under Order 9 Rule 13 CPC for setting aside an ex parte decree passed on 22nd January,1990 restraining the applicant/jd from interfering with the posses sion, management and control of the respondent/ (Decree Holder) DH and their tenants/licencees and all others in possession of the suit premises on the premise that the respondent/dh became the owner in possession of the suit properties by purchasing the same from erstwhile various private owners through duly registered sale deeds from 1880 till 1905-06. Instead of accepting the decision with grace which stands on the edifice of overwhelming documentary evidence in the form of revenue records/sale dee s etc projecting the ownership of the respondent/dh with possession over the suit property since 1880, the applicant-DDA has taken upon itself the task of nullifying the ownership and possession of the respondent-DH on the strength of a stray entry of 18 7-98 in the revenue record in which `crown was shown as the owner but in 1909, the said entry was corrected by Mr. White, the then Head Assistant Commissioner as it was found to have been wrongly made. It was again dug up in 1982 and the respondent/dh as branded as licencee and for breach of term of the licence, licence was revoked. What an irony . For the sake of clarity, applicant/j. D shall be referred as "defendant/dda" and respondent/dh as "plaintiff" hereinafter.
( 2 ) THE background of various events that led to the filing of the instant suit followed by the instant application needs to be recapitulated in brief.
( 3 ) THE suit land measuring 30,929 sq. yds falls in Khasra No. 40, Banskoli. As per the revenue record of year 1865, its original khasra no was 206 of which Sh. Jiya Ram, Chhajju Ram sons of Sh. Ghisu were shown as owners. Till 1880, the position continued to be the same. Shri Badri Dass popularly known as Badri Bhagat purchased these properties from various owners from 1880 onwards. The revenue records showed Badri Dass as owner in possession till 1905-06, the year of his death. After the eath of Sh. Badri Dass, the name of his son Ramji Dass was entered in the revenue record as owner in possession. He died in 1936 and after his death his son Shyam Sunder continued to be in possession of suit property. In 1944, Shyam Sunder formed pla ntiff no. 1-Society to save the property from encroachment. It is pertinent to mention here that in the revenue record of 1897-1898, `crown was shown as owner but no mutation ever took place in favour of the Government and subsequently this entry as found to be wrongly made and was corrected by Mr. R. B. White, the then Head Assistant Commissioner vide his order dated 1. 11. 1909 which was duly accepted by the Government. In 1939, certain lands were acquired for the new Capital of India but the sit property did not form part of those lands. So much so after the enforcement of Urban Land Ceiling Act, inquiries were initiated from plaintiff nos. 1 and 3 with regard to suit land but it was found that these have been exempted from the provisions of said Act.
( 4 ) THUS for the last more than 120 years, right from Badri Dass upto his sucessors, these lands have been in their complete control and management as owners in possession. On 1/9th August, 1947, through the registered lease deed the plain iff-Society granted lease of 14,300 sq. yds out of the aforesaid land to Sh. M. S. Golwalkar, the then RSS Chief. . Later on two further lease deeds of additional areas were also executed in favour of Sh. M. S. Golwalkar in 1970. Plaintiff no. 1 leased ano her 1700 sq. yds of the suit property to M/s Bej Nath Brothers by Regd. Lease Deed. As and when plaintiffs wanted to raise any construction they always sought permission of Landdo, Delhi Improvement Trust, Delhi Development Authority and Municipal Corp ration of Delhi as the case was and last such permission was obtained on 5
