Professional Documents
Culture Documents
THE COURT OF MS. GEETANJALI: ADDITIONAL
DISTRICT JUDGE CENTRAL 03: TIS HAZARI COURTS:
DELHI
MCA No.18/21
North Delhi Municipal Corporation
Through its Commissioner
Civic Center, S.P. Mukherjee Marg
Minto Road, New Delhi 110002
.....Appellant
Vs.
MCD Market Traders Association
Through its General Secretary
Sh. Harish Chitkara
Having its office at :
Basement Parking MCD, Saraswati Marg,
Karol Bagh, New Delhi 110005
…....Respondent
Date of institution of the appeal : 24.08.2020
Date on which order was reserved : 27.09.2021
Date of decision : 09.10.2021
JUDGMENT
1. The present appeal filed by the appellant/ defendant assails the
order dated 31.07.2021 and 11.08.2021 in suit no. 1570/2021 passed by
Ld. ASCJ(Central) Delhi. For the sake of convenience, the parties will be
referred by their original status.
GROUNDS OF APPEAL:
4. It is contended by the appellants that Ld. Trial Court failed to
appreciate that the respondent herein has no locus to file the suit as it is
neither the registered society nor the suit has been signed by the
authorized person; that appellant approached the Ld. Trial Court with
application under XXXIX (4) of CPC to bring into notice all the
misleading averments of the plaintiff by which it succeeded in getting
exparte stay and the view of the Ld. Trial Court that no averment for
false and misleading statement of the plaintiff has been agitated by the
appellant is misplaced; that the respondent has willfully and with
malafide intentions tried to mislead the court by not placing on record the
letter dated 26.03.2021 wherein it was submitted that the roof of the
building has completely degraded and debris were falling on the
shopkeepers as well as customers; that the Ld. Trial Court miserably
failed to appreciate that the building in question is a public property and
it may fall any day thereby causing immense hardship not only to
6. The Trial Court records was summoned and perused. I have heard
counsels for both the parties and perused the record.
8. The present appeal has been filed against the dismissal of the
application under Order XXXIX Rule 4 CPC. For the sake of
convenience, Rule 4 is reproduced below:
9. This rule covers the discharge, variations etc. of an injunction (1)
passed exaprte and also (2) of an injunction already in force which is
operating harshly or which needs reconsideration. But the previous order
cannot be reopened except on the presentation of some new matter which
was not available when the original order was passed. The fact about the
dilapidated condition of the Complex has not been concealed by the
Plaintiff rather they had asked for its renovation and reinforcement. The
appellant failed to produce any document to show that the Plaintiff
society was having the knowledge of the report given by the IIT Roorkee
10. During the course of arguments, it was submitted by Ld. Counsel
for the appellant that the dismissal of application under Order XXXIX
Rule 4 CPC tantamounts to allowing the application under Order XXXIX
Rule 1 and 2 CPC. I did not concur with this since the impugned order
itself states that application under Order XXXIX Rule 1 and 2 CPC is
still pending disposal. The parties are standing in appeal herein and there
is no reason for considering documents at this stage which were not
considered by the Ld. Trial Court. The contents of the written statement
were not considered by the Ld. Trial Court while deciding the application
under Order XXXIX Rule 4 CPC and hence they can not become the
scope of this appeal before this Court.