The court upholds the trial court's jurisdiction in evaluating easementary rights while confirming prior orders denying additional document submission and claims of unauthorized construction.

JUDGMENT

Navin Chawla, J. (Oral)

CM 11779/2021(exemption)

Allowed, subject to all just exceptions.

CM(M) 265/2021 & CM 11778/2021

1. This petition has been filed by the petitioner challenging the orders dated 18.10.2019 and 07.03.2020 passed by the learned Civil Judge-07, Central, Tis Hazari Courts, New Delhi in suit, being CS SCJ No.94260/2016, Om Prakash v. Sumitra Devi.

2. By the Impugned Order dated 18.10.2019, the learned Trial Court was pleased to dismiss the application filed by the petitioner, who is the plaintiff in the suit, seeking a direction to the MCD to file on record various documents as was earlier directed by the learned Trial Court in the order dated 07.12.2002. By the subsequent order dated 07.03.2020, the application of the petitioner seeking review of the order dated 18.10.2019 has been dismissed.

3. The suit has a chequered history inasmuch as the same has been filed by the petitioner claiming unauthorized construction being carried out by the defendant nos.1 to 3 in the suit as also claiming easementary rights.

4. As far as the plea of the unauthorized construction is concerned, the same stands finally adjudicated by an order dated 19.07.2011 passed by this Court in RSA No.184/2010, inter alia observing as under:

"5. Accordingly, the impugned orders cannot stand. They are accordingly set aside. Rejection of the plaint under Order 7 Rule 11 CPC is set aside. The Trial Court will proceed to hear and dispose of the suit in accordance with law with respect to the cause of action of easementary rights to light and air as stated in the plaint and the reliefs claimed thereupon.

6. I may note that the learned counsel for the appellants also sought to argue that the suit must also continue with regard to the unauthorized construction. I completely disagree. The reason is the following observations of the First Court in the order dated 24.03.2004:

"MCD also filed WS and raised preliminary objection that the suit of the plaintiff is barred under Section 347(E) of the DMC Act and jurisdiction of this Court is barred and this Court has no jurisdiction to try the present suit. It has been further stated that unauthorized construction carried out in the property No.E-20, Bhagwan Dass Nagar, New Delhi was booked vide file No.451/B/UC/WZ/98 dt. 8.9.98. It has been further submitted that in view of the resolution of Standing Committee, MCD No.1648 dt. 24.5.79 the owner/builder of the suit property was processed fro regularization as per BBL and policy and guidelines contained in OO No.7/Building/HQ/86 dt.29.8.86 and other circulars No.9/EE(B)/HQ/89 dt. 23.6.89 and 11/Bldg/HQ/86 dt. 27.10.86. It has been further stated that after completing requisite formalities and procedure as laid down in the aforesaid circulars, the unauthorized construction on GF and FF have been regularized and building plan has been sanctioned in respect of SF also as on 12.1.1999 as per details depicted in the chart filed as annexure "A" with the WS of MCD."

No doubt the issue could not have been decided under Order 7 Rule 11 CPC, but, the issue could well have been considered under Order 12 Rule 6 CPC because MCD has given detailed particulars of allowing of the sanction and the completion of the requisite formalities by the respondents no.1 to 3. Therefore, there remains no illegal and unauthorized construction for the suit to continue with respect to that cause of action and relief related thereto. I may however, note that the appellants/plaintiffs are seeking that ce