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2010 DIGILAW 1120 (DEL)

DALJIT SINGH v. NEW DELHI MUNICIPAL CORPORATION

2010-10-27

INDERMEET KAUR

body2010
INDERMEET KAUR, J. 1. This second appeal has impugned the judgment and decree dated 21.8.1991 which had reversed the finding of the Trial Judge dated 17.5.1983 thereby dismissing the suit of the plaintiff Daljit Singh. 2. Daljit Singh had filed a suit for perpetual injunction against the defendant New Delhi Municipal Committee (NDMC) stating that the impugned demolition notice dated 14.9.1978 served upon him on 03.10.1978 was bad in law and the defendant be restrained from demolishing his construction i.e. as shown in the site plan of flat no.74-G, Sujan Singh Park, New Delhi. Contention of the plaintiff was that he had raised this construction sometimes in April 1977. 3. Trial Judge and the impugned judgment had dismissed the suit of the plaintiff on the ground that under the provisions of Section 225 of Punjab Municipal Act there is a bar to the jurisdiction of the Civil Court; the Civil Court could not have entertained the suit. The suit was accordingly dismissed. 4. This is a second appeal. Substantial question of law had been formulated on 26.10.2010, it inter alia reads as follows: “Whether the findings in the impugned judgment dated 28.8.19 qua the notice dated 31.8.1978 and 14.9.1978 is a perverse finding, if so, its effect?” 5. Counsel for the appellant has urged that the impugned judgment has not discussed the evidence of the plaintiff; it is pointed out that three witnesses have been examined on behalf of the plaintiff but there is not whisper of their testimony either oral or documentary proved through them which has been gone into by the first Appellate Court; a valuable right has been lost. Attention has been drawn to the impugned judgment. 6. Perusal of the same shows that this contention of the learned counsel for the appellant is borne out from the record. The impugned judgment has appreciated the testimony of the four witnesses examined on behalf of the defendant as also their documentary evidence but there is no mention, let alone a discussion about the evidence adduced by the plaintiff. Record shows that three witnesses had been examined by the plaintiff. Documents had also been proved. None of the oral or documentary evidence has been examined by the first appeal Court. 7. Record shows that three witnesses had been examined by the plaintiff. Documents had also been proved. None of the oral or documentary evidence has been examined by the first appeal Court. 7. There is no doubt to the proposition that a litigant has a valuable right of appeal which he can agitate by way of first appeal; the first appeal Court is bound to consider the evidence adduced before the Trial Judge both oral and documentary; it must appreciate and draw its own conclusion based on a reasoned finding. In the instant case as is apparent and evident from the record, the impugned judgment has not examined the evidence led by the plaintiff. A party has a right to be heard both on question of facts as also on law before the first Appeal Court who is bound to address itself on all such issues. Since this mandate had not been adhered to, it is a fit case where the matter is to be remanded back to the first Appeal Court to decide the case afresh after discussing the evidence and giving a reasoned order. 8. In 2002 7 SCC 441 Rattan Dev Vs. Pasam Devi Supreme Court had held that where the First Appeal Court had failed to consider the valuable material on record, it amounted to a failure on its part to discharge its judicial obligation having a substantial impact on the rights of the parties raising a substantial question of law. 9. The matter is accordingly remanded back to the District Judge, Delhi, who will assign it to the concerned first Appeal Court. Parties to appear before Ld.District & Sessions Judge, Tis Hazari Courts, Delhi on 09.11.2010 at 10.00 AM. 10. Records be also sent back. 11. Appeal as also the pending application is disposed of.