Smt.Shobha Yadav vs Smt.Anita Verma
2010 Latest Caselaw 5519 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment: 03.12.2010

+            RSA No.86/2010 & CM No.8148/2010 (for stay)


       SMT.SHOBHA YADAV                ...........Appellant
               Through: Mr. Mr.M.M.Singh & Mr.S.K.Singh,
                        Advocates.

                Versus
       SMT.ANITA VERMA                           ..........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

4.3.2010 which had endorsed the finding of the trial judge dated

22.9.2009 whereby the suit of the plaintiff/respondent Anita Verma

seeking possession of the suit property bearing No.4/2932, Shri

Ram Colony, SS Block, Bhola Nathl Nagar, Shahdara, Delhi had

been decreed in her favour.

2. Admittedly an unregistered lease deed dated 3.6.2006 had

been executed between the plaintiff and the defendant. The rent

was RS.5500/- per month. The lease was for a period of 11 months

which expired by efflux of time on 30.4.2007. During the course of

the proceedings, the defendant was proceeded ex parte on

23.5.2008. Application under Order 9 Rule 7 Code of Civil

Procedure was dismissed on 18.8.2008. However, right to cross-

examine the witnesses of the plaintiff was granted to the

defendant. The defendant, however, did not put in appearance.

Preliminary decree was passed on 05.3.2009. An application

under Order 9 Rule 13 of the Code of Civil Procedure had been

preferred which was allowed; result of which was that the

defendant was permitted to cross-examine the witnesses of the

plaintiff. Suit was thereafter decreed for possession and mesne

profits on 22.9.2009.

3. First appellate Court vide the impugned judgment and decree

dated 4.3.2010 had endorsed the finding of the trial judge.

4. This is a second appeal before this Court. It has been urged

that the lease deed dated 3.6.2006 had been altered; it could have

been proved in the manner in which it was sought to be proved.

5. The perusal of the record shows that the lease deed dated

03.6.2006 has been proved as Ex.PW-1/1. The contention now

raised before this Court that this document had been altered and

the document produced before the court was not the true copy of

the original lease deed can be gone into at the stage in a second

appeal. This contention was neither raised before the trial judge

nor before the first appellate Court. The second submission of the

learned counsel for the appellant that he had filed a suit for

permanent injunction in which an ex parte order was perused

which is operating in his faovur was not looked into by the first

appellate Court is also an argument to be noted and to be rejected.

It has been noted in the impugned judgment that mere filing of a

suit for permanent injunction would not give any right to the

defendant over the suit property. Neither the plaint nor the written

statement or said order in her favour had been filed in the absence

of which the Court below had rightly not taken note of the same.

6. The substantial questions of law have been formulated on the

page 2 of the body of the appeal. No question of law much less any

substantial question of law having arisen, the appeal also the

application is dismissed in limine.

INDERMEET KAUR, J.

DECEMBER 03, 2010 nandan