Haji Abdul Mateen (Deceased) Thr His Lrs v. Sheikh Haji Firozuddin & ORS

$~17.

* IN THE HIGH COURT OF DELHI AT NEW DELHI + HAJI ABDUL MATEEN (DECEASED) THR HIS LRS .... Petitioner Through:

Mr. Bankim Kulshresth and Mr.

Krishan Kumar, Advs.

versus SHEIKH HAJI FIROZUDDIN & ORS.

..... Respondents Through:

Mrs. Avnish Ahlawat, Adv. for APMC.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R

% 05.07.2017 CM No.23086/2017 (for exemption).

1.

Allowed, subject to just exceptions.

2.

The application stands disposed of.

CM(M) No.669/2017, CM No.23084/2017 (for calling of LCR) and CM No.23085/2017 (for stay).

3.

This petition under Article 227 of the Constitution of India impugns the order dated 5th April, 2017 of the learned Additional District Judge, Delhi of dismissal of an application of the petitioner under Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking consideration of the legal issues / questions of law / questions of fact mentioned in para 1 of the application.

4.

The respondents / defendants filed a suit in the Court of the Civil Judge, Delhi for recovery of possession of an immoveable property.

5.

The said suit was dismissed by the Court of the Civil Judge. The respondents / defendants appealed to the District Judge. The said appeal was allowed and a decree for possession passed.

6.

The petitioner / plaintiff herein was not a party to that suit and filed objections in execution of the decree in the aforesaid suit. The said objections were dismissed. The first appeal to the District Judge and second appeal to this Court against the dismissal of the objections were also dismissed. Special Leave Petition (SLP) preferred was withdrawn. 7.

Subsequently the petitioner / plaintiff filed the suit from which this petition arises, in this Court, for declaration of the decree in the earlier suit as bad.

8.

On the change in the pecuniary jurisdiction of this Court pursuant to Office Order dated 24th November, 2015 of Hon‟ble the Chief Justice in exercise of powers under Section 4 of the Delhi High Court (Amendment) Act, 2015 the suit, being below the enhanced minimum pecuniary jurisdiction of this Court was transferred to the Court of the District Judge. 9.

The petitioner / plaintiff in the application, against the order of dismissal of which this petition has been preferred, inter alia stated that since the decree challenged in the suit was of the Additional District Judge, another Additional District Judge before whom the suit of the petitioner / plaintiff was pending could not declare the said decree of that Additional District Judge to be bad. The petitioner / plaintiff thus inter alia sought the matter to be sent back to this Court.

10.

No error can be found in the conclusion reached by the learned

Additional District Judge resulting in dismissal of the application. However the only error in the order is that the learned Additional District Judge has not given any reason for dismissal of the application save for stating that "I am of the considered view that this Court has power to deal with the matter". 11.

The reasons for which I say that the application was rightly dismissed are as under:- (i) The Court which has pecuniary jurisdiction to entertain the suit has to be determined on the basis of the valuation of the suit set out in the plaint. As per the said valuation the suit is correctly before the Additional District Judge. There is no statutory bar in law against the suit being before the Additional District Judge.

(ii) If the petitioner / plaintiff is of the opinion (and with respect to which I am not required to offer any opinion) that the suit is not maintainable before the Additional District Judge or that the petitioner / plaintiff cannot get the reliefs sought before the Additional District Judge, the remedy of the petitioner / plaintiff is to enhance the valuation of the suit by amendment of the plaint.

(iii) If the petitioner / plaintiff does not choose to so amend the plaint and the learned Additional District Judge finds the suit to be not maintainable before the learned Additional District Judge, the plaint will be rejected and in which case also the petitioner / plaintiff will have liberty to sue afresh.

(iv) The Court which has jurisdiction to try the suit cannot abdicate such jurisdiction merely at the asking. The counsel for the petitioner / plaintiff is unable to show any provision of law which bars the Court from setting aside the decree of a coordinate Court. 12.

Thus, whichever way looked at, the application against order of dismissal of which this petition has been preferred was totally misconceived and has been rightly dismissed.

Dismissed.

Dasti.

RAJIV SAHAI ENDLAW, J JULY 05, 2017 „pp‟..