Order 15

Order Details: COPY OF ORDER
Pdf Text: 15 Civ Suit 582/24
RAJWATI (Senior Citizen) Vs. MOHD. ASLAM
02.06.2026
Present: Sh. Gulzar Ali, Ld. Counsel for the plaintiff.
Sh. Usman Chaudhary, Ld. Counsel for the
defendant.
Evidence affidavit of DW1 has been filed. No list of
witnesses has been filed despite opportunity.
One opportunity is granted to file the list of
witnessed during course of the day.
DW1 has been examined, cross-examined and
discharged.
Arguments heard on application under Sections 11,
12, 23 Rule 1 CPC.
List the matter for orders at 4:00 PM.
Sh. Pranat Kumar Joshi
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts,
Delhi/02.06.2026
At 4: 00 PM
Present: None.
Order on application under Sections 11, 12, Order 23 Rule 1
and Section 151 of CPC
1. The defendant has moved this application seeking
dismissal of present suit.
2. Ld. Counsel for defendant would argue that present suit is
based upon the report filed by District Magistrate, North-
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East in case bearing no. RC/ARC 34/2019 titled as
‘Sameera Begum Versus Reshma’ pertaining to
applicability of DRC Act over the suit property. Ld.
Counsel would submit that suit property in present suit is
different from the one in previous petition.
3. Ld. Counsel for defendant assails the maintainability of
instant suit on the ground the present suit has been filed
without any proper authority because the SPA was issued
for shop no. 3 and 4 only, but the present suit concerns
shop no. 1 and lack of authority will be clear from the
cross-examination of SPA holder of the plaintiff.
4. Ld. Counsel further assails the maintainability of this suit,
on the ground that proceedings before the Ld. Court of
ARC was withdrawn but the liberty to file it fresh was not
granted by the court. Hence, the present suit is not
maintainable. Ld. Counsel also argues that the present suit
is also barred by res judicata, hence, the suit should be
dismissed.
5. Per Contra, Ld. Counsel for plaintiff chose to orally
oppose the present application. Ld. Counsel for plaintiff
would submit that the present suit was earlier filed under
DRC Act and when notification regarding applicability of
DRC Act was not found, the suit was withdrawn with
liberty to file it afresh. Ld. Counsel would rely on
statement of petitioner and order of the court of Ld. ARC
dated 20.08.2024. Insofar as authority of SPA holder to
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contest present suit is concerned, Ld. Counsel would argue
that the same is clear from the evidence already placed on
record.
6. I have heard the rival contentions and perused the case file.
7. Insofar as first limb of argument against the
maintainability of present suit is concerned, it would be
clear from the record and statement of petitioner therein,
dated 20.08.2024 that the suit was sought to be withdrawn
because of the inapplicability of DRC Act. This Court is
cognizant of the fact that the present suit is not filed under
DRC Act, hence applicability of the same to the suit
property is not an issue before this court. If it is the case of
defendant that provisions of DRC Act are applicable on the
suit property, it is for them to discharge the burden of
proving the same. Thus, this is not sufficient ground to
challenge the maintainability of present suit.
8. Second limb of argument concerns the authority of SPA
holder to contest the present suit. On this issue, the Ld.
Counsel for defendant had extensively cross-examined the
SPA holder of the plaintiff. Unarguably, the proceedings in
the present suit are at the stage of defence evidence and the
authority of SPA holder can be examined after scrutinizing
the material placed on trial at the time of writing the
judgment. Hence, this issue will be dealt with at the final
stage only and it cannot be summarily decided at this
stage. Thus, this ground is per se not sufficient to
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challenge the maintainability of present suit at this stage.
9. Third limb of argument is that the liberty to file the fresh
suit was not granted by the court of Ld. ARC, North-East,
Karkardooma Court, hence the present suit could not have
been filed by SPA holder, as the same is barred by res
judicata. To appreciate this, argument it is relevant to refer
to statement of petitioner in case bearing no. RC/ARC
34/2019 titled as ‘Sameera Begum Versus Reshma’, which
is dated 20.8.2024. In the said statement the petitioner had
sought permission from the court concerned to withdraw
the petition with liberty to file it afresh. It is also relevant
to note the order dated 20.08.2024 whereby Ld. ARC,
North-East, Karkardooma Court permitted withdrawal of
those proceedings. The order dated 20.08.2024
underscores that “In view of separate statement of SPA of
petitioner, present petition stands disposed of as
withdrawn”. Thus, it is unambiguously clear that the
petition was permitted to be withdrawn in view of the
statement of SPA holder of petitioner as per which liberty
was sought to file the matter afresh. In view of this, I
conclude that the liberty of filing the fresh suit was not
denied by the court concerned. Now, having established
that liberty to file a fresh suit was granted, the bar under
Order XXIII Rule 1 (4) CPC would not operate. Further,
insofar as argument that present suit is hit by doctrine of
res judicata is also without merit. It is a trite law that for
the applicability of res judicata the previous matter should
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have been finally heard and decided between the same
parties. This means that the matter should have been
disposed of on merits. Simpliciter withdrawal of previous
suit on technical grounds does not attract the rigors of
Section 11 of CPC. A fresh suit without the liberty is
barred not because of res judicata but because of Order
XXIII Rule 1 (4) CPC and the present case is not affected
by either of these provisions.
10.For the reasons mentioned above, the present application is
disposed of as dismissed. No order as to costs.
11.Matter be listed for further DE/ final arguments on
14.07.2026.
Sh. Pranat Kumar Joshi
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts,
Delhi/02.06.2026
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