Nahar Singh Vs. Dda - Court Judgment

Excerpt:
civil procedure code 1908 - section 115--revision--order 9 rule 9--(i) non appearance of counsel for petitioner in the second petition for setting aside--dismissal in default--sought setting aside dismissal and restoration of interim order--set aside the dismissal order and petition restored to its original number--restoration of earlier interim order not granted--petition partly allowed, (ii) non appearance of counsel resulted into dismissal of revision and interim order stood automatically vacated--petition for setting aside - revision restored to its original number--application allowed. ;delhi development act, 1957 - section 30(1)--compliance of petitioner sought stay restraining the respondent from demolishing the structure-trial court dismissed the suit holding property fell in notified development area--impugned demolition order has been passed after giving proper notice under section 30(1)--appellate court found no prima facie case for grant of interim injunction pending decision of appeal-revision-respondent restrained from demolishing the structure - issued show cause - dismissed. - labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the army (1961), regulation. 173 claimant was on casual leave sustained injury which contributed to invalidation for military service claim for disability pension held, to claim disability pension by military personnel it requires to be established that the injury or fatality suffered by the concerned claimant bears a causal connection with military service. secondly, if this obligation exists so far as discharge from the armed force on the opinion of a medical board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on causal or annual leave at the time or at the place when and where the incident transpired. this is so because it is the causal connection which alone is relevant. fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the pension regulations to bring such travel within the entitlement for disability pension if an injury is sustained in this duration. fifthly, it cannot be said that each and every injury sustained while availing of casual leave would entitle the victim to claim disability pension. sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension. this is so regardless f whether the injury or death has occurred at the place of posting or during working hours. this is because attributability to military service is a factor which is required to be established. - on merits of the case also the following observation was made in the order the impugned order clearly says that the property in suit falls in development area no.arun b. saharya, j.c.m.1017/96 (application for exemption) 1. allowed. c.m.1016/96 2. by this application the petitioner has prayed for (i) setting aside order dated 7th february, 1996 and restoration of c.m.no. 785/95: and (ii) restoration of the earlier interim order dated 17th october, 1994. 3. in the main petition, being c.r.no. 599/94, notice was issued to the respondent to show cause why the petition be not admitted. on an application for interim relief being c.m.no. 2326/94, order dated 17th october, 1994 was passed restraining the respondent from demolishing the structure in question. 4. on 23rd february, 1995 no one appeared for the petitioner and the main case was dismissed. on merits of the case also the following observation was made in the order 'the impugned order clearly says that the property in suit falls in development area no. 172 and demolition order had been passed under section 30(1) of the dda act-after giving proper notice to the plaintiff.' 5. as a result of the order dated 23rd february, 1995 the interim dated 17th october,1994 stood automatically vacated. 6. the petitioner filed c.m.no. 785/95 for setting aside order dated 23rd february,1995 and restoration of the main case. this too was dismissed in default on 7th february, 1996. 7. this is the background in which the petitioner has moved the present application. 8. it has been explained in paragraphs 5,6 & 7 of the application that on 22nd november, 1995, when the hearing of cm 785/95 was adjourned, the then counsel for the petitioner inadvertently noted 20th february, 1996 as the hearing date instead of 7th february, 1996, and that his absence on 7th february, 1996 was unintentional. this explanationn appears to be satisfactory. accordingly, order dated 7th february, 1996 is set aside and c.m.no. 785/95 is directed to be restored to its original number. 9. the second prayer, for restoration of the earlier interim order dated 17th october, 1994, however, cannot be granted. that order stood automatically vacated on 23rd february, 1995. even otherwise, the observation made on merits of the case in that order would defeat the earlier interim order. moreover, during pendency of c.m.no. 785/95, no fresh order for revival or continuation of interim injunction was made at any time, when the matter was adjourned from 9th march, 1995 onwards. in these circumstances, i am not inclined to restore the earlier mentioned interim order passed on 17th october, 1994, which stood automatically vacated as far back as on 23rd february, 1995. 10. the application is, thereforee, partly allowed. c.m.785/95 11. by this application the petitioner has prayed for setting aside order dated 23rd february, 1995 dismissing the main revision petition. here again, it has been explained inparagraphs 2 & 3 of the application that on 23rd february, 1995 learned counsel forthe petitioner remained busy with certain other matters before some other benches ofthis court and was unable to appear at the time when the case was called on for hearing; and that by the time he came to attend the case it was too late the case had beendismissed. this explanationn also appears to be satisfactory. consequently,order dated 23rd february, 1995 is set aside and the main case, being c.r.599/94, isrestored to its original number.the application is, accordingly, allowed. c.r.599/94 12. heard at length. 13. the petitioner had filed a suit for restraining the respondent from demolishing the structure raised over the land in question. the learned trial court, after full-fledged trial, found that the property fell in the notified development area and the impugned demolition order had been passed after giving proper notice under sub-section (1) of section 30 of delhi development authority act, 1957. consequently, the suit was dismissed. 14. aggrieved by it, the petitioner preferred an appeal. on his application for grant of interim order, by the impugned order dated 24th may, 1994, the learned appellate court has relied upon the statement of dw-1 mohd. musta queen, junior engineer of dda and found no prima facie case made out for grant of interim injunction pending decision of the appeal. 15. the various pleas sought to be urged by the petitioner would not be decided in the present proceedings as the same relate to merits of the appeal which is still pending in the lower appellate court. suffice it to say that the learned appellate court has passed the impugned order, in its discretion, on the basis of the evidence on record, and it cannot be said that the court has acted in exercise of jurisdiction illegally or with material irregularity. dismissed.