Shri Dharam Pal(Deceased) Now ... vs Shri Fateh Singh (Deceased) ...
2011 Latest Caselaw 286 Del

R-153
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 18.01.2011


+                         RSA No.62/2004

SHRI DHARAM PAL(DECEASED)
NOW REPRESENTATED BY HIS LRS.         ...........Appellant
                  Through: Mr.R.K.Bhardwaj & Dheeraj
                           Bhardwaj, Advocates for,
                           Advocate.

                     Versus

SHRI FATEH SINGH (DECEASED) THROUGH LRS & ORS.
                                    ..........Respondent
                   Through: None.


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 second appeal has impugned the judgment and decree

dated 06.10.2003 which had endorsed the finding of the trial judge

dated 16.5.1996 whereby the suit of the plaintiff seeking

permanent injunction had been dismissed.

2. The plaintiff had filed the present suit claiming himself to be

the owner and in possession of premises bearing No.462 along with

Baithak as shown in the red colour in the site plan. He had sought

a decree of injunction from dispossession from the Baithak as it

was contended that the defendant had threatened to take forcible

possession.

3. In the common written statement filed by the defendants, it

was denied that the plaintiff is the owner of the aforenoted suit

property. Their contention was that the plaintiff is residing in

premises no.462A whereas the premises bearing No.462 is the

Baithak which is in joint possession of defendant no.1 to 9. House

No.462A had come the share of the plaintiff whereas house

No.462B had gone to the share of Sube Ram.

4. On the pleadings of the parties, six issues had been framed.

These issues were framed on 21.9.1987. After several

opportunities had been granted to the plaintiff, the plaintiff had

examined himself as PW-1 on 29.01.1992. PW-2 Surender Singh

and PW-3 Pradeep Kumar had also been examined in chief. The

examination-in-chief of PW-1 had been deferred and thereafter in

spite of several opportunities, the dates of which have been noted

in chronology by the trial judge, the plaintiff failed to adduce

evidence. This continued up to 10.11.1993 when again no witness

was present on behalf of the plaintiff. Matter was thereafter

adjourned to 27.1.1994 and then to 01.4.1994. On 21.3.1994 a

joint request for adjournment was made by both the parties. On

06.4.1994 the matter was adjourned for 15.5.1994. On 15.5.1994

the matter was adjourned for 16.5.1996 on which date it was

recorded that no witness was present again. The review

application which has been filed by the plaintiff seeking review of

the order dated 15.5.1996 was also pending. The trial judge was of

the view that the matter has been resorted to very lightly by the

plaintiff. The suit of the plaintiff was accordingly dismissed.

5. The impugned judgment had endorsed this finding. The

record of the trial court had been perused in detail. It was

reaffirmed that the judgment of the trial court suffers from no

illegality as the plaintiff in spite of several opportunities having

been granted to him had failed to adduce any evidence.

6. This is a second appeal. After its admission, the following

substantial question of law has been framed:

"Whether the findings in the impugned judgment dated

06.10.2003 are perverse, if so, its effect?"

7. Learned counsel for appellant has placed reliance upon a

judgment of the Apex Court reported in AIR 2001 SC 1440 Kewal

Krishan Vs. Harnek Singh to substantiate his submission that the

opportunity to lead evidence is a valuable opportunity. In this case

the Supreme Court had granted such an opportunity to the

appellant for meeting the requirements of the ends of justice. This

is a one page judgment; the facts cannot be deciphered from the

said judgment; each case is based on its own facts and

circumstances. The instant case is one where the plaintiff has

clearly been negligent and not producing his evidence in spite of

the various chances and opportunities granted to him. The

discretion exercised by the two Courts below is fair and judicious

and it does not call for any interference. There is no perversity in

the impugned judgment.

8. The substantial question of law is answered accordingly.

Appeal is dismissed.

INDERMEET KAUR, J.

JANUARY 18, 2011 nandan