$~ 59 (2022 Cause List)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision:- 21^st January, 2022

+

CM(M) 76/2022

SMT. USHA RANI

..... Petitioner

Through:

Mr. Shiv Pandey, Advocate.

versus

SHRI ANIL SINGH KUSHWAH

..... Respondents

Through:

None.

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN

J U D G M E N T

PRATEEK JALAN, J. (Oral)

The proceedings in the matter have been conducted through

video conferencing.

CM APPL. 3857/2022 (for exemption)

Exemption allowed, subject to all just exceptions.

This application stands disposed of.

CM (M) 76/2022

1.

This petition under Article 227 of the Constitution, is directed

against an order dated 18.02.2020 passed by the court of learned

Additional District Judge-03, East District, Karkardooma Courts,

Delhi in M-10975/2016 [Smt. Usha Rani vs. Sh. Anil Singh Kushwah].

By the impugned order, an application filed by the petitioner-plaintiff

[“the plaintiff”] under Order XXXIX Rule 2A of the Code of Civil

2022:DHC:280

Procedure, 1908 [“CPC”], alleging violation by the respondent-

defendant [“the defendant”] of an interim order dated 08.07.2009 was

dismissed.

Facts

2.

The suit before the Trial Court was filed in the year 2009,

wherein the plaintiff claimed a decree for possession of the suit

property (A-596-597, Out of Khasra No. 411, situated in abadi of New

Ashok Nagar, Delhi-110096) [“the property”].

3.

On the plaintiff’s application under Order XXXIX Rules 1 and

2 of the CPC, an interim order dated 08.07.2009 was passed. The

order, as extracted in the impugned order dated 18.02.2020, reads as

follows:-

“Present: Cl. for plt.

premises.”

4.

The plaintiff thereafter filed an application under Order XXXIX

Rule 2A of the CPC, stating therein that some part of the suit property

had been demolished by the defendant from inside. Paragraph 4 of the

said application reads as follows:-

2022:DHC:280

complaint dated 06.01.2013 is annexed herewith.”

5.

The Trial Court heard the application on evidence, after framing

the following issues:-

3. Relief ”

6.

Evidence was led by the plaintiff and her son, as well as by the

defendant. Issue No.2, on the maintainability of the application, was

decided in favour of the plaintiff. However, issue No.1, on the merits,

was decided against the plaintiff. It is in these circumstances, that this

petition under Article 227 of the Constitution has been filed.

Submissions

7.

Mr. Shiv Pandey, learned counsel for the petitioner, submits

that the finding in the impugned order, to the effect that the order of

statusquo granted on 08.07.2009 would not encompass an injunction

against the renovation of the property, is erroneous inasmuch as an

unqualified order of statusquo would cover both questions of title and

possession, as well as the nature and character of the suit property. He

further refers me to the report of the Local Commissioner dated

08.07.2015, to demonstrate that changes had been made to the suit

2022:DHC:280

property during the pendency of the suit, and the subsistence of the

interim order.

8.

I am informed that a Local Commissioner was appointed by an

order dated 02.07.2015 in the course of the proceedings under Order

XXXIX Rule 2A of the CPC. The report of the Local Commissioner

states as follows:-

hall red primer on gatter seen.”

9.

Mr. Pandey submits that the contention that the defendant had

demolished some rooms is established upon comparison of the report

of Local Commissioner with the contents of paragraph 2 of the plaint,

wherein the plaintiff had specifically averred that there were 14 rooms

each on the ground floor and first floor and 2 rooms on the second

floor of the suit property. Mr. Pandey submits that the said pleading of

the plaintiff was not specifically traversed in the written statement

filed by the defendant.

Analysis

10.

The impugned order proceeds on two findings: the first finding

2022:DHC:280

concerns an inte