Brij Kishore Mishra vs Shri Rajendra Pd. Sharma
2011 Latest Caselaw 2972 Del

*     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

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

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

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

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