Pitamber & Anr. vs Rahis Ahmed
2010 Latest Caselaw 3578 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment: 02nd August, 2010

+                        RSA No.109/2010

PITAMBER & ANR.                                 ...........Appellants
                         Through:     Mr.M.R.Chanchal, Advocate.

                   Versus

RAHIS AHMED                                       ..........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)

C.M. Appl.10561/2010 (for delay) in R.S.A.109/2010

Application is not pressed. Dismissed as withdrawn.

R.S.A.109/2010

1. This is a second appeal preferred against the impugned

judgment dated 1.4.2010 wherein the appeal filed by the appellant

seeking setting aside of the order dated 19.12.2009 passed by the

Civil Judge on the application under Order 9 Rule of the Code of

Civil Procedure (hereinafter referred to as 'the Code') read with

Section 5 of the Limitation Act had been dismissed.

2. Briefly stated, the facts of the case are as follows:

The plaintiff had filed a suit for possession and mesne

profits. The defendants/appellants had been served and they had

put in their appearance on 14.7.2008; written statement had been

filed on 18.7.2008; issues were framed on 22.10.2008; matter was

adjourned for the evidence of the plaintiff to 11.12.2008 on which

date two witnesses on behalf of the plaintiff had filed their

evidence by way of affidavit. None had appeared for the appellant

on the said date. No adverse order was passed against the

defendant; matter was adjourned for cross-examination of the

witnesses of the plaintiff for 23.4.2009 on which date since the

defendants had again failed to appear, the defendants had been

proceeded ex-parte at 2.30 p.m. Evidence was closed; the matter

was fixed for final arguments for 29.5.2009; judgment was

delivered on 10.8.2009. Suit of the plaintiff had been partly

decreed for possession and mesne profits.

3. On 14.12.2009, an application under Order 9 Rule 13 of the

Code had been filed for setting aside the judgment and decree.

Along with the said application an application under Section 5 of

the Limitation Act had also been filed. The contention of the

learned counsel for the defendant/appellant was that he was

suffering from tuberculosis and as such he was not in a position to

appear in the court. Further, the father of the defendant had

expired and he was under depression and there was no one to look

after his minor children and his wife. Trial court had dismissed

both the applications for condonation of delay as also the

application filed under Order 9 Rule 13 of the Code on 19.12.2009.

4. The appeal filed against the said impugned order was

dismissed on 1.4.2010.

5. This is a second appeal. The substantial question of law has

been phrased on page 4 of the appeal. On a specific query put to

the learned counsel for the appellant as to what is the substantial

question of law which has arisen in the matter, he has no answer.

Page 4 averring the substantial question of law only relates to

matters of fact which have already been dealt with by both the

courts below. The suit of the plaintiff had been decreed on the

basis of the documentary evidence adduced by him i.e. the

documents of the transfer of the suit premises which included

Ex.PW-1/1 (colly.) relating to the transfer of suit premises by

Lachchu Ram, the father of the appellant/defendant in favour of the

plaintiff. Ex.PW-1/5 and Ex.PW-1/6 were the photographs of the

handing over of the keys to the plaintiff by Lachchu Ram, Ex.PW-

1/D was the application filed by Lachchu Ram before the court of

the Civil Judge informing the court about the transfer of suit

property in favour of the plaintiff. PW-2 had witnessed the

execution of the relevant documents by Lachchu Ram in favour of

the plaintiff. These documents remained un-rebutted.

6. This court is bound by the parameters as contained under

Section 100 of the Code. It is only if a substantial question of law

arises that the appeal is to be heard by the second appellate court.

Neither has any substantial question of law urged before this court

and nor has any such substantial question of law arisen as is

evident from the pleadings before this court. This appeal is without

any merit. It is dismissed in limine.

INDERMEET KAUR, J.

AUGUST 02, 2010 rb