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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  3105-3106 OF 2015 (@ Special Leave Petition (C) Nos.31194-31195 of 2010)

Ramesh      …. Appellant

Versus

Harbans Nagpal and others   …. Respondents

JUDGMENT

Uday Umesh Lalit J.

Leave granted.

2. These appeals challenge the order dated 14.1.2010 in CMM No.846 of  

2008 and order dated 2.6.2010 in Review Petition No.58 of 2010 arising out of  

the said order dated 14.1.2010 in CMM No.846 of 2008, passed by the High  

Court of Delhi at New Delhi.

3. The  appellant  under  an  Agreement  of  sale  dated  27.5.1998  had  

purchased the property described in the document as under:

“Vacant roof of  Ground Floor to Top Floor measuring 106 Sq.  yds. Out of Property No.1/51, built on Plot No.A/9, out of Khasra  No.163 with rights to construct up to Top floor, stairs leading from  Ground Floor to Top Floor, situated at Nirankari Colony, Pardhan

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Marg, Delhi-110009, and bounded as under:-

NORTH: Road below

SOUTH: Other’s property

EAST: Gali below

WEST: Other’s property”

The appellant submits that in pursuance of the right so conferred, she has  

erected a building and is in enjoyment thereof.

4. On  or  about  16.8.2001  the  Respondent  No.1  herein  filed  Civil  Suit  

No.229 of 2001 in the Court of Senior Civil Judge, Delhi against the Defendant  

No.1 i.e. his wife and Defendant Nos. 3 to 5 who are relatives of the Defendant  

No. 1.  The present appellant was joined as Defendant No.2.  It was submitted  

in the plaint as under:

“That the defendant No.1 in connivance with defendant No.2 and  other defendants encroached upon the property of the plaintiff and  took possession of the chhajja and reconstructed it and debarred  the plaintiff from taking any air or natural light.  The defendant  No.1 and 2 are in conspiracy with other defendants to permanently  cust the plaintiff from the premises which is in his ownership.

That mischievously the defendant No.1 connived with the  other defendants and with the MCD Officials in order to harm the  plaintiff  and  got  demolished  the  second  floor,  third  floor  and  fourth  floor  of  the  said  premises.   Thus  floors  are  lying  in  a  dilapidated condition.  The chhajjas on the first floor, second floor  and  fourth  floor  are  being  in  unauthorized  occupation  of  the  defendants.”

It was prayed:

“That a decree for mandatory injunction be passed in favour  of  the  plaintiff  and  against  the  defendants  that  the  chhajjas

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occupied by them forcefully and illegally, be handed over to the  plaintiff.”

The plaint did not give any details or dimensions of the chhajjas, nor did  

it  refer  to  any  plan  so  that  the  details  or  dimensions  could  be  gathered  

therefrom.  But it appears, a sketch was later produced on record.

5. The Appellant was initially proceeded ex-parte vide order dt.20.12.2001  

but that order was set aside on 1.8.2002 and the appellant filed her written  

statement and reply to the application for interim relief.  No replication was  

filed.  The suit was dismissed for default on 17.9.2004.  Respondent No.1—

Plaintiff preferred application for restoration, which was adjourned from time  

to time for lack of effective service.  The suit was later restored on 19.4.2006  

when Defendant Nos.1 and 5 appeared in person and submitted that they had  

compromised the matter and had no objection to the suit being restored.  Upon  

such restoration, the suit was decreed vide judgment dt.7.2.2007 in the absence  

of the appellant.  It was observed by the trial court as under:

“It is pertinent to mention here that defendant Nos.1 and 5  also filed WS but during the pendency of the suit  plaintiff  and  defendant Nos.1 and 5 have reached a compromise.  Statements of  Defendant Nos.1 and 5 were also recorded separately.  Hence, the  contents of WS of Defendant Nos.1 and 5 are not reproduced here.  It is also pertinent to mention here that defendant No.2 to 4 were  proceeded ex-parte by my Ld. Predecessor court on 20.12.2004.  It is also pertinent to mention here that suit of the plaintiff was  dismissed  on  1.9.2004  for  non-appearance  of  the  plaintiff.  Thereafter,  plaintiff  filed  an  application  u/o  9  rule  9  CPC  on  25.9.2004.   Thereafter,  notice  of  this  application  was  sent  to  defendants but defendant No.2 did not appear despite summons  being served which is also reflected in order sheet  dt.5.2.2005.

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Meanwhile,  defendant  No.1  and  5  along  with  plaintiff  compromised the matter and matter was proceeded further against  the remaining defendants.”

“Since the defendant Nos.2 to 4 have chosen not to contest  the  suit  of  the  plaintiff  and  have  chosen  to  remain  ex-parte.  Deposition  of  plaintiff’s  witness  has  remained  unchallenged,  uncontroverted.  I have perused the record and heard Ld. counsel  for plaintiff.  It is also pertinent to mention here that defendant  No.1 is wife of plaintiff and defendant No.1 along with defendant  No.5 appeared and statement of both were recorded on 19.4.2006  to this effect that they have already settled their dispute in regard  of suit property.  There is nothing on record to suggest the plaintiff  is  not  entitled to relief  claimed.   Hence plaintiff  is  entitled for  mandatory injunction whereby defendant No.2, 3, 4 are directed  that  chhajja  occupied  by them be  handed  over  to  the  plaintiff.  Plaintiff  is  further  entitled  for  decree  of  permanent  injunction  whereby defendants No.2,3 & 4 are restrained from encroaching  as well interfering with the possession of the suit property that is  1/51,  Nirankari  Colony,  Delhi.   Decree  sheet  be  prepared  accordingly.”

6. The record indicates that while the matter was pending consideration for  

restoration of the suit, vide order dated 27.11.2004 the matter stood adjourned  

to 07.01.2005 and thus there were no proceedings on 20.12.2004.  On the other  

hand,  the  appellant  was  initially  proceeded  ex  parte  vide  order  dated  

20.12.2001 but that order was set aside on 01.08.2002.  The suit was restored  

on 19.04.2006 and there was no order after such restoration setting the suit ex  

parte as against the appellant.  The order dated 05.02.2005 also did not mark  

the suit ex parte against the appellant.    

7. On 30.04.2007 application was preferred on behalf of Respondent No.1-  

Plaintiff  for  execution of  the aforesaid decree.   Soon thereafter  he filed an

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application dated 07.08.2007 under Section 151 C.P.C. for amendment of the  

decree.  It was stated therein as under:

“1.  That the Site Plan does not show the précised location of the  place  surrendered  or  ordered  to  be  given  in  possession  of  the  plaintiff by the defendants.

2. That although the order and decree sheet clears whatever is  to be given to the plaintiff and as against the defendants.

3. That it is highly improper to go beyond the decree sheet and  the decree passed by the Court and therefore, it is appurtenant to  describe to the bailiff as to where he has to act and what he has to  do  so  that  the time of  Court  and the  bailiff  is  not  wasted  and  decree of  this Hon’ble Court  be obeyed and ought to be under  law.”  

8. The aforesaid application was dismissed by the trial court vide its order  

dated  15.10.2007  holding  that  there  was  no  clerical  error  or  accidental  

omission in the decree and that taking on record the amended site plan at that  

stage would amount to going behind the decree and modifying the terms of the  

original  decree.   In  the  meantime  the  appellant-defendant  No.2  got  the  

knowledge of ex parte decree dated 07.02.2007 and preferred an application  

under Order IX Rule 13 CPC for setting aside the same, which application is  

still pending consideration.   

9. Respondent  No.1-  plaintiff  being  aggrieved  by  the  order  dated  

15.10.2007 preferred CMM No.846 of 2008 in the High Court of Delhi.  The  

High Court in its order dated 14.01.2010 observed that as per the earlier site  

plan there was a protruding chhajja measuring 33” beyond the staircase and

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that the said chhajja shall be handed over to the decree holder who shall then  

erect a wall over the portion measuring 33” beyond the staircase as shown in  

the initial site plan.  It further directed the executing court to issue warrants of  

execution in terms of the order of the High Court.  The appellant preferred  

Review Petition No.58 of 2010 seeking review of the aforesaid order dated  

14.01.2010.  The said review petition was, however, dismissed by the High  

Court vide its order dated 02.06.2010.

10. We have gone through the record and considered the rival submissions.  

In our view, no dimensions were given in the plaint nor did the plaint refer to  

any sketch.  The judgment and decree also did not refer to any dimensions of  

the chhajja in question nor did it incorporate or refer to any sketch from which  

dimensions could be gathered.  In the premises the view taken by the trial court  

was absolutely correct, in that any exercise would amount to going behind the  

decree.  The application preferred under Section 151 CPC was also vague and  

lacking in  any particulars.   The  High Court  was,  therefore,  not  justified in  

passing the instant directions.  We, therefore, allow the appeal and set aside  

both the orders under appeal.  It is open to Respondent NO.1-plaitniff to take  

such steps as are open to him in law.   We may also observe that the application  

for  setting  aside  the  ex  parte  decree  preferred  by  the  appellant  shall  be  

considered on its own merits.

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11. The appeals, thus, stand allowed with no order as to costs.

                       …………………….J. (Dipak Misra)

….………………….J. (Uday Umesh Lalit)

New Delhi, March 23, 2015

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ITEM NO.1E               COURT NO.12               SECTION XIV                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s)  for  Special  Leave  to  Appeal  (C)  No(s).   31194- 31195/2010 (Arising out of impugned final judgment and order dated 14/01/2010  in CMM No. 846/2008,02/06/2010 in RP No. 58/2010,02/06/2010 in CMM  No. 846/2008,14/01/2010 in CMM No. 846/2008,02/06/2010 in RP No.  58/2010,02/06/2010 in CMM No. 846/2008 passed by the High Court Of  Delhi At New Delhi) RAMESH                                             Petitioner(s)                                 VERSUS HARBANS NAGPAL & ORS.                              Respondent(s)

Date : 23/03/2015 These petitions were called on for  pronouncement of judgment today.

For Petitioner(s)  Mr. Piyush Sharma, AOR                       For Respondent(s) Mrs. Rani Chhabra, AOR

Hon'ble  Mr.  Justice  Uday  Umesh  Lalit  pronounced  the  non- reportable judgment of the Bench comprising Hon'ble Mr. Justice  Dipak Misra and His Lordship.  

Leave granted. The appeals are allowed in terms of the signed non-reportable  

judgment.

(R.NATARAJAN)        (SNEH LATA SHARMA)  Court Master       Court Master    (Signed non-reportable judgment is placed on the file)