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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
Gurnam Kaur (Deceased) Through Lr's – Decree Holders
Versus
BSES Rajdhani Power Limited – Judgment Debtor
Ex. Appl. (OS) 420 of 2017 in Ex.P. 146 of 2016
Decided On : 21-02-2018
Section 47 - Execution of mandatory injunction - Code of Civil Procedure, 1908 (CPC) - [Ex.P. 146/2016] - The court passed a judgment in a suit seeking a mandatory injunction to remove a transformer and electric pole installed in the plaintiff's property. The court found that the plaintiff was entitled to the decree for mandatory injunction as the defendants failed to raise substantial questions of fact. The court also rejected the defendant's argument that the civil court lacked jurisdiction, emphasizing that the defendant had no entitlement to continue the works without permission from the property owner. The court dismissed the objections under Section 47 CPC as frivolous and an abuse of process of law, ordering the defendant to pay costs to the plaintiffs and issuing warrants of possession for the plaintiffs to take possession of the suit properties.
Fact of the Case:
The plaintiffs sought a mandatory injunction to remove a transformer and electric pole installed in their property. The defendants failed to raise substantial questions of fact, and the court found the plaintiff entitled to the decree for mandatory injunction. The defendant's argument that the civil court lacked jurisdiction was rejected, and the objections under Section 47 CPC were dismissed as frivolous and an abuse of process of law.
Finding of the Court:
The court found that the plaintiff was entitled to the decree for mandatory injunction as the defendants failed to raise substantial questions of fact. The court rejected the defendant's argument that the civil court lacked jurisdiction, emphasizing that the defendant had no entitlement to continue the works without permission from the property owner. The objections under Section 47 CPC were dismissed as frivolous and an abuse of process of law.
Issues: The issues included the entitlement of the plaintiff to the decree for mandatory injunction, the jurisdiction of the civil court, and the frivolous nature of the objections raised under Section 47 CPC.
Ratio Decidendi: The court's decision was based on the finding that the plaintiff was entitled to the decree for mandatory injunction as the defendants failed to raise substantial questions of fact. The court also emphasized that the defendant had no entitlement to continue the works without permission from the property owner, rejecting the argument that the civil court lacked jurisdiction.
Final Decision: The court dismissed the objections under Section 47 CPC as frivolous and an abuse of process of law, ordering the defendant to pay costs to the plaintiffs and issuing warrants of possession for the plaintiffs to take possession of the suit properties.
VALMIKI J. MEHTA, J.
Ex. Appl. (OS) 420/2017 in Ex.P. 146/2016
1. By this order the objections filed by judgment debtor under Section 47 of the Code of Civil Procedure, 1908 (CPC) are being disposed of. The execution petition is filed by the plaintiffs/decree holders, and who are the legal heirs of the original plaintiff/decree holder Smt. Gurnam Kaur, seeking execution of the judgment dated 14.7.2016 passed in CS (OS) No. 2691/2015. The judgment dated 14.7.2016 which is sought to be executed reads as under:-
“1. The plaintiff has sued for mandatory injunction directing the defendants BSES Rajdhani Power Limited, South Delhi Municipal Corporation (SDMC) and Divisional Head (O&M) of the defendant No.1 BSES Rajdhani Power Limited to remove the transformer and the electric pole installed in the portion of the properties No. D1/20 and D1/21, Rajouri Garden, New Delhi of the plaintiff and for recovery of arrears and future mesne profits/damages for the use and occupation.
2. The suit was entertained.
3. The defendants No. 1 and 3 have filed a written statement inter alia pleading that the subject transformer has been in existence for over 30 years, though the said defendants are unable to locate the documents executed by the then owner of the property permitting installation of the said transformer and have sought the same from Delhi Power Corporation Limited (DPCL) being the holding company created while unbundling erstwhile Delhi Vidyut Board (DVB) during whose regime the subject transformer and electric pole were installed.
4. Defendant No.2 SDMC has not filed any written statement and the counsel for the plaintiff states that the defendant No.2 SDMC was impleaded only because it was the stand of the defendant No.1 in response to the legal notice preceding the suit that SDMC had to allocate alternative place to them for shifting of the said transformer; else no relief has been claimed against the defendant No.2 SDMC.
5. The suit is ripe for framing of issues, if any.
6. Counsel for the plaintiff states that the written statement of defendants No. 1 and 3 does not disclose any defence to the suit in so far as for the relief of mandatory injunction and the plaintiff is entitled to decree forthwith.
7. On enquiry, the counsel for the plaintiff in support of the title of the plaintiff to the subject property has drawn attention to the judgment dated 10th April, 2015 of this Court in CS(OS) No.1350/1995 titled Gurnam Kaur Vs. Pritam Singh Bhatia and in Test.Cas. 81/2008 titled Administrator General Sanjay Dewan Vs. State declaring the plaintiff as the owner of the properties and to the judgment dated 14th August, 2015 of the Division Bench of this Court in RFA(OS)70/2015 Sanjeev Bansal Vs Gurnam Kaur preferred thereagainst. It is further informed that SLP preferred against the said judgment of the Division Bench was also dismissed though copy of that order has not been filed and is not available with the counsel today. On further inquiry whether there is any challenge from any quarter to the title of the plaintiff to the subject properties as of today, the reply is in the negative. It is however informed that the plaintiff has since sold property No.D-1/21, Rajouri Garden, New Delhi but the transformer and the electricity pole qua which the suit has been filed is in property No.D-1/20.
8. The counsel for the defendants No. 1 and 3 on inquiry confirms that the transformer and the electricity pole are as shown in the site plan filed by the plaintiff i.e. within the boundary wall of property No.D-1/20. The said site plan, for identification, is Ex.C-1.
9. The counsel for the defendants No. 1 and 3 states that the defendants No. 1 and 3 have sought details of the documents of occupation of the property from the DPCL and the same are awaited and seeks adjournment. It is argued that owing to the process of unbundling of the DVB which had installed the subject transformer, the documents are not immediately available. It is yet further conten
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