S C SHUKLA Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This order shall dispose of two applications (IA 4013/95 and IA 7894/95) - one filed by the plaintiffs under Order XXXIX, Rule? I and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') and the other one filed on behalf of defendant No. 2 under Order XXXIX, Rule 4 read with Section 151, Civil Procedure Code for the discharge/variation/ setting aside the order dated the 9th May, 1995, passed in IA 4013/95.

(2.) The facts relevant for the disposal of the above mentioned two applications. briefly stated are, that the plaintiffs have filed a suit for permanent injunction with the prayer that a decree for permanent injunction restraining the defendants from using any part of the land, measuring 4000 sq. mtrs ( as shown in the plan annexed with the plaint) for any other purpose except a children's park, be passed in favour of the plaintiffs and against the defendants. It is further prayed by the plaintiffs that defendant No. 2 be restrained by a decree of permanent injunction from digging or making any construction on the abovesaid plot of land, situated in Ashok Vihar, Phase IV, SFS Flats, Delhi. As per the case of the plaintiffs, the above said plot measuring 0.66 hect., was ear marked in the land out plan for a Primary School but all along the abovesaid piece of land has been used as a park. It is averred that in the year 1989 the abovesaid plot of land was formally approved as a children's park instead of a site for Primary School by the then Lt. Governor of Delhi Shri Romesh Bhandari-It is furtlier stated by the plaintiffs that sometime in the year 1990/91 a part of the above said plot was souglit to be allotted to Mohan Memorial Education Society for running a Nursery School and plaintiff No. 1 filed a suit (Suit No. 1891/91) in the Court of Senior Sub-Judge, Delhi against the Delhi Development Authority seeking the relief of permanent injunction from changing the nature of the park. It is alleged that in the above said proceedings (Suit No. 1891/91) Mohan Memorial Education Society made an application under Order 1 Rule 10, Civil Procedure Code for its impleadment as a party. It is stated that the Delhi Development Authority had filed a written statement in the Court of Sub-Judge 1st Class wherein it was stated that out of 0.66 hector (6600 sq. mtr) an area of 4000 sq. mtrs in the lay out plan, adjacent to the Nursery School site, had been retained as a children's park. It is further stated that a compromise was effected between the plaintiff and the Mohan Memorial Education Society and it was inter-alia agreed that the remaining site would be used and would be developed as a children's park by the Delhi Development Authority. The main contention of the plaintiffs in the present proceedings is that the above said plot/ park, measuring 4000 sq. mtrs. has been admittedly year marked for a children's park and that the same cannot be used for DAV Public School or for any other purpose, lt is stated that t^e allotment of land, if at all to defendant No. 2 is illegal and against the bye-laws and in case the allotment is allowed to stand ,the plaintiffs would suffer irreparable loss and injury.

(3.) Alongwith the plaint, the plaintiffs have also filed an application (IA No. 4013/95) under Order XXXIX, Rules I and 2 read with Section 151, Civil Procedure Code for an ad interim ex-parte order. The above said application came up for hearing before the learned predecessor of this Court on 9.5.1995 and the learned predecessor of this Court on the above said application of the plaintiffs passed the following orders IA 4013/95 Heard. Mr. Makhija, Counsel for the plaintiff. It is stated that initially, plot of 6000 sq. mtrs was earmarked for primary school. That in Suit No. 1891/ 91, filed by plaintiff No. 17, the defendant had agreed that a plot of 2000 sq. mtrs would be set apart from 6600 sq. mtrs and the same would be used for primary school purpose. On the strength of this fact, plaintiff No. 17 withdrew the earlier suit and now the defendant wants 4000 sq. mtrs. plot of land to be used for school rather than for the purpose of park. It is stated that at the present, 4000 sq. mtrs, is being used for park for the children of the society. Looking to the facts and circumstances, it becomes necessary not to permit the user of 4000 sq. mtrs plot of land being used for park to any other purpose by an ex- parte injunction. Defendants restrained in terms of para 18(a) and (b) till the next date. Plaintiff to comply with provisions of Order 39, Rule 3, Civil Procedure Code within 3 weeks from today. Dasti. Notice to the defendants, on filing P.F.and Regd. AD covers by the plaintiff, for 1.9.1995.