Delhi High Court
Smt.Kiran vs Smt.Veena Kumari on 13 December, 2010
Author: Indermeet Kaur
A-22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13.12.2010
+ RSA No.202/2007 & CM No.10927/2007(for stay)
SMT.KIRAN ...........Appellant
Through: Mr.D.P.Bhatia, Advocate.
Versus
SMT.VEENA KUMARI ..........Respondent
Through: Mr.Y.P.Luckria, Advocate
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
23.5.2007. Vide the aforestated judgment the order of the Civil
Judge dated 7.4.2004 had been confirmed. On 07.4.2004, the Civil
Judge had in a suit for mandatory injunction as also for possession
and permanent injunction decreed the suit of the plaintiff ex parte.
Thereafter on an application under Order 9 Rule 13 of the Code of
Civil Procedure (hereinafter referred to as "the Code") filed by the
defendant, which application was dismissed on 28.3.2005. This
order was impugned before the Additional District Judge. The
order dated 28.3.2005 was confirmed; suit of the plaintiff stood
decreed in terms of the judgment and decree dated 07.4.2004.
2. Record shows that the appeal had been admitted and the
substantial questions of law were formulated on 10.7.2009; they
inter alia read as follows:
"A. Whether the Trial Court is bound to issue notice in cases
remanded back by the appellate court before the Trial Court?
B. Whether any application under Order 9 Rule 13 of C.P.C. seeking
setting aside of the ex-parte judgment and decree can be decided on
the basis of pleadings only?
C. Whether the court is bound to frame issue while deciding an
application under Order 9 Rule 13 C.P.C. when the material
proposition of facts is affirmed by one party and denied by the
other?
D. Whether the court is bound to invite parties to adduce evidence
on the facts pleaded by one party and denied by the other party
while deciding an application under Order 9 Rule 13 CPC."
3. Learned counsel for the respondent has drawn the attention
of this Court to the provisions of Order 43(1)(d). It is pointed out
that under this statutory provision an appeal lies against an order
under the provisions of Section 104 of the Code against an order
passed under Order 9 Rule 13 of the Code. It is pointed out that in
view thereof only an appeal under Order 43 of the Code could have
been filed against the order of the dismissal of the application
under Order 9 Rule 13 CPC which was dismissed on 28.3.2005.
4. This is amply borne out from this statutory provision.
5. The order of dismissal of the appeal under Order 43 (1)(d) is
not amenable to the jurisdiction of this Court. A second appeal
would not lie as the said order does not qualify as a "decree" under
Section 100 of the Code. For this proposition learned counsel for
the respondent has placed reliance upon a judgment of a Bench of
this Court reported in 37(1989) DLT 67 Baldev Raj Gandok Vs.
Kishan Singh Pasricha. Only remedy is to file a revision.
6. At this stage learned counsel for the appellant seeks
permission of this Court to withdraw the appeal with permission to
seek appropriate legal remedy through appropriate legal forum.
7. The appeal is dismissed as withdrawn with liberty as prayed
for. On the request of the learned counsel for the appellant, the
time period spent in pursuing these proceedings bonafide shall be
excluded for the purpose of limitation. Substantial questions of law
are answered accordingly.
8. Appeal as also stay application is disposed of in the above
terms.
INDERMEET KAUR, J.
DECEMBER 13, 2010
nandan
