Rajender Jaina (Known As Dr Er Rajainderr Jaina) v. DDA

RAJIV SAHAI ENDLAW, J. AUGUST 27, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 27th August, 2018. + RAJENDER JAINA ..... Appellant Through: Mr. Rajesh Aggarwal, Adv. Versus DELHI DEVELOPMENT AUTHORITY ..... Respondent Through: Mr. Kunal Sharma, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 11th January, 2017 in RCA No.45145/2015 of the Court of Additional District Judge (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 6th May, 2015 in CS No.564/2014 (Unique ID No.02401C01331922007) of the Court of Civil Judge (West)] of dismissal of a suit filed by the appellant/plaintiff against the respondent/defendant Delhi Development Authority (DDA). 2. The appeal came up first before this Court on 4th July, 2017, when, without indicating the substantial question of law, if any arising, which is a sine qua non for entertaining a Regular Second Appeal, notice thereof was ordered to be issued and the Trial Court record requisitioned. 3. The Trial Court record has been received and the counsel for the respondent/defendant DDA appears. The counsel for the appellant/plaintiff has been heard and the records perused. 4. The appellant/plaintiff instituted the suit, from which this appeal arises, for (i) declaration that the liability to pay ground rent with respect to the various spaces in building at plot No.22, A-Block, Local Shopping Centre, Preet Vihar, Delhi is on the licensees/occupants and not on the appellant/plaintiff; and, (ii) injunction directing the respondent/defendant DDA to recover the ground rent charges from the licensees/occupants of various spaces in the building constructed on the aforesaid plot. 5. However, though reliefs in the manner aforesaid were sought, only the respondent/defendant DDA was impleaded as defendant in the suit and the licensees/occupants on which/whom liability for the ground rent was sought to be foisted by a decree of declaration and/or for recovery wherefrom direction to the respondent/defendant DDA was sought, were not impleaded as defendants to the suit. 6. Without impleading the persons on whom liability was sought to be foisted, the suit was not maintainable and the plaint ought to have been rejected on the very first date when it came up for admission. A mechanical issuance of summons of the suit has resulted in the suit consuming the time of the Courts since the year 2007, for the last eleven years. 7. Be that as it may, the respondent/defendant DDA filed a written statement contesting the suit, pleading (a) that the lease of land was granted in favour of the appellant/plaintiff; (b) that as per the terms of the lease, the appellant/plaintiff, without permission of the respondent/defendant DDA, was not entitled to sell/transfer the land or any part of the construction thereon to anyone else; (c) that the liability for ground rent was of the appellant/plaintiff; (d) that it was further a term of the lease that even transfer of any part of the construction on the said plot of land by the appellant/plaintiff, even if with the permission of the respondent/defendant DDA, will not absolve the appellant/plaintiff from liabilities under the lease deed including for ground rent; and, (e) that the appellant/plaintiff had violated other terms of the lease as well. 8. On the pleadings of the parties, the following issues were framed in the suit on 7th September, 2009: "1. Whether the plaintiff is entitled to relief of declaration as prayed for? OPP 2. Whether the plaintiff is entitled to relief of injunction as prayed for? OPP 3. Relief." 9. The Suit Court, on the basis of the evidence led by the parties, dismissed the suit, recording/reasoning (i) that the persons on whom the liability for ground rent was sought to be transferred had not been made parties to the suit and in their absence, no declaration and inj