* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 02.06.2011
+ R.S.A.No. 94/2011 & CM No. 11236-37/2011
BRIJ KISHORE MISHRA ...........Appellant
Through: Mr. R.B. Samaiyar & Mr. R.K.
Chaudhary, Advocates.
Versus
SHRI RAJENDRA PD. SHARMA ..........Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated 05.03.2011 which has endorsed the finding of the trial Judge dated 25.08.2010 whereby the suit filed by the plaintiff Rajendra Prasad Sharma seeking possession and damages qua the suit property i.e. property bearing No. K-412, Gali No. 7 Gautam Vihar, Ghonda, Delhi had been decreed in favour of the plaintiff. 2 The plaintiff claimed himself to the owner of the aforenoted RSA No.94/2011 Page 1 of 5 suit property; erstwhile owner was Durga Devi; plaintiff had by virtue of a Will dated 11.10.2004 of Durga Devi become the owner of the suit property. Contention was that the erstwhile owner Durga Devi had permitted the defendant to occupy one room in the aforenoted suit premises (as depicted in red colour in the site plan); this was for a period of two months only on the specific request of the defendant; permission had been granted as the brother of the defendant was known to Durga Devi. Inspite of requests of the plaintiff asking the defendant to vacate the suit property, he did not do so. Present suit was accordingly filed. 3 In the written statement, it was denied that the plaintiff has inherited the suit property from Durga Devi; it was contended that the plaintiff in collusion with one Deepak Kumar wants to grab the suit property; defence of tenancy had been set up; the defendant contended that he was tenant on a monthly rent of Rs.200/- per month; claim of adverse possession had also been made. 4 On the pleadings of the parties, the trial Judge had framed four issues. Oral and documentary evidence had been led. The Will of Durga Devi had been proved as Ex. PW-1/A; attesting witnesses to the document had come into the witness box as PW-2 & PW-3. The Will stood duly proved. The plaintiff was held entitled to the possession of the suit property; suit of the plaintiff was RSA No.94/2011 Page 2 of 5 decreed. Damages and mesne profits @ Rs.1000/- had also been awarded i.e. i.e. from the date of filing of the suit till handing over of possession of the suit property along with interest @ 6% per annum.
5 This finding was endorsed in the first appellate court. 6 This is a second appeal. It is yet at the stage of admission. Substantial questions of law have been embodied on page 4 of the body of the appeal.
7 On behalf of the appellant, it has been urged that the plaintiff had moved an application before the first appellate court under Order 18 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the 'Code') seeking permission to reexamine the witness but this application had been dismissed summarily. This submission of learned counsel for the appellant is not borne out from the record. It is not in dispute that the witnesses of the plaintiff had been duly cross-examined by the defendant. Provisions of Order 18 Rule 17 of the Code do not contemplate a situation where the respondent had left out asking certain questions and he seeks permission to recall the witnesses for the said reason. This provision gives powers to the Court to recall any witness to put such questions as the court thinks fit. This discretion which is given to the Court has to be exercised by RSA No.94/2011 Page 3 of 5 the Court where the Court wishes to put certain questions to the concerned witness. This application after due consideration had been rightly dismissed. The Court had noted that merely because certain questions had not been put by the defence counsel to a particular witness is no reason to recall such a witness. There is no infirmity in this finding.
8 The next submission of learned counsel for the appellant is that although he had specifically averred in the written statement that the plaintiff is not the legal heir of Durga Devi and he has not inherited the property from her yet no specific issue on this count had been framed.
9 Issues had been framed on 05.05.2007 and they read as under:-
1. Whether the plaintiff is entitled for the recovery of possession of the suit property as prayed for? OPP
2. Whether the plaintiff is entitled for use of occupation charges, if so, for what period and at what rate? OPP
3. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP
4. Relief.
10 Issue No. 1 is wide enough to encompass this submission of learned counsel for the appellant. Even otherwise if the appellant was aggrieved by the issues framed, nothing prevented him from moving an application under Order XIV of the Code seeking an RSA No.94/2011 Page 4 of 5 amendment of the issues. He did not do so; it does not now lie in his mouth to make such a plea.
11 The Will of Durga Devi dated 11.10.2004 has been proved as Ex. PW-1/A; attesting witnesses to the said document had proved it. There is no infirmity on this count either. 12 There are two concurrent findings of fact by the two courts below. They do not in any manner call for an interference. No perversity has been pointed out. No such substantial question of law has arisen. Appeal as also pending applications are dismissed in limine.
INDERMEET KAUR, J.
JUNE 02, 2011 a RSA No.94/2011 Page 5 of 5