Delhi High Court
Liyakat Ali vs Anupam Chib & Ors on 1 February, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 332/2011
% 1st February, 2012
LIYAKAT ALI ..... Appellant
Through : None.
versus
ANUPAM CHIB & ORS ..... Respondents
Through : Mr. Deo Prakash Sharma and
Mr.Umesh Gupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No. 11989/2011
1. This application for condonation of delay of 339 days is filed in the
appeal challenging the impugned judgment and decree dated 25.3.2010
decreeing the suit of the respondents/plaintiffs for possession and injunction.
2. The facts of the case are that the appellant/defendant No.2 led no
evidence whereas the respondents/plaintiffs filed the necessary documentary
RFA No.332/2011 Page 1 of 6
proof of title in their favour with respect to the suit property. The
respondents/plaintiffs were also shown as owners in the revenue record and
which documents were proved and exhibited. A Local Commissioner also
gave a report in favour of the respondents/plaintiffs of the appellant seeking
to take forcible possession by observing that the partitioned wall was newly
constructed. Once the respondents/plaintiffs are shown to be the owners by
means of title documents, being the sale deed, the trial Court was justified in
decreeing the suit for possession and injunction in favour of the
respondents/plaintiffs.
3. The grounds given in the application for condonation of delay read as
under:-
"2) It is submitted that on behalf of the appellant, the
petitioner No.1/Liyakat filed evidence by way of
affidavit. The said affidavit was tendered as Exhibit
PW1/a. Unfortunately, on account of ignorance, the said
witness could not appear before cross examination as the
said witness understood that only affidavit was required
to be filed and subsequently he was required to appear
for cross examination also.
3) It is submitted that as the evidence on behalf of the
appellant could not be completed on account of
ignorance/omission, therefore, appellant No.1/Liyakat
Ali could not appear for cross examination and in the
absence of the petitioner, the learned trial Court passed
the impugned order dated 25.3.2010.
RFA No.332/2011 Page 2 of 6
4) That the petitioner was not aware of the passing of
impugned order and the petitioner could know about the
passing of the judgment and order dated 25.3.2010 only
on 6.5.2011 when the respondent along with some
unknown persons/antisocial persons came to site to take
possession at the property in question.
5) Then thereafter the draft appeal was prepared,
however, the same could not be finalized for want of
certain important papers and documents which were very
much necessary and were significant to file in the present
proceedings for its effective adjudication and disposal by
this Hon'ble Court.
6) Thus, in view thereof, it took some time for the
Petitioner in this process and then immediately the appeal
was finalized and is now being filed without any further
delay in the matter."
4. In my opinion, the aforesaid facts which are stated are narration of
facts as differentiated from sufficient cause. The expression sufficient cause
means statement of facts which prevented a person from filing the appeal.
Surely, a person who contests the case to the hilt cannot take up a stand that
he does not know that he was not required to appear for cross-examination
after filing of evidence by way of affidavit. I am informed by learned
counsel for the respondents/plaintiffs that in execution of the impugned
judgment and decree possession of the suit property has already been taken.
RFA No.332/2011 Page 3 of 6
5. This Court vide order dated 16.8.2011 dismissed a third application
for stay of the impugned judgment and decree by observing as under:-
"CM No.15173/2011(exemption)
Allowed, subject to all just exceptions.
Application stands disposed of.
+ CM NO.15172/2011 in RFA No.332/2011
1. This is a third application in a period of
about one and half months filed in an RFA effectively for
stay of operation of the impugned judgment. Whether
the prayer is for stay of the judgment or stay of the
execution, effectively same relief is now being sought for
the third time. Firstly, this appeal came up on 5.7.2011,
when, in CM No.11988/2011, the statement of the
counsel for the appellants was recorded that interim
orders were not being pressed. This was recorded after
the counsel was heard. In fact, another reason for
declining interim orders was that there was a huge delay
of 339 days in filing of the appeal. The appellants were
not satisfied by declining of the interim orders and once
again for the second time on 8.8.2011, an application for
stay was filed and which was once again dismissed. Now
a new counsel, led by a senior, has again filed a third
application for pressing the same stay. The reasons were
not given on the very first date because counsel for the
appellants had not pressed for the interim orders. Since
the interim orders are being pressed, I am giving the
reasons for declining the interim orders. The subject suit
was a suit for possession and injunction which was
decreed. The respondents no. 1 and 2 filed the suit for
injunction and possession on the ground that the
respondent no.1 was the owner of the property having
purchased it on 4.4.1985. The appellants however
claimed ownership of the property. The respondents
no.1 and 2/plaintiff, alleged that the appellants took
RFA No.332/2011 Page 4 of 6
forcible possession of the property and therefore the
subject suit was filed. The Trial Court after framing of
the issues set the case down for evidence, however, the
defendant no.2 after tendering his affidavit did not turn
up for cross-examination, and even the other defendants
failed to lead any evidence despite several opportunities.
Thus while respondents no. 1 and 2/plaintiffs led
evidence, but, the appellants led no evidence. The Trial
Court has relied upon the sale deed in favour of the
respondent no.1 which has been exhibited as Ex.PW1/2
and also the khasra girdawaris showing possession of the
respondent no.1 as Ex.PW6-A and PW6-B. The Trial
Court also relied upon report of the Local Commissioner
which showed that the appellants had in the recent past
taken forcible possession as the name of the respondent
no.1 was shown after wiping of the paint which has
recently been put on the wall.
2. In my opinion, a third innings, more so,
when the appellants/defendants led no evidence is quite
clearly a gross abuse of process of law. Merely because
one set of counsel have failed to obtain an interim order,
is no ground for approaching the Court again in a period
of about one and half months by filing a third application
for stay through new counsel when interim orders have
been refused twice earlier and the matter is listed for
being returnable on 20.10.2011. The present application
is therefore dismissed with costs of Rs.15,000/- which
shall be payable to the Registrar General of this Court for
being utilized towards juvenile justice. Costs be paid
within 2 weeks from today."
6. As per the report of the Registry, costs of `15,000/- imposed vide
order dated 16.8.2011 have also not been deposited. Accordingly, the
present appeal, as also the stay application, is dismissed for non-prosecution
RFA No.332/2011 Page 5 of 6
under Section 35B of Code of Civil Procedure, 1908. The appeal is also
dismissed by refusing to condone the delay and dismissing C.M. No.
11989/2011.
7. The present appeal is, accordingly, dismissed. Let no application for
restoration/recall of this order be entertained by the Registry unless costs of
`30,000/- are first paid to the respondents/plaintiffs.
C.M. No. 12836/2011 (under Section 340 Cr.P.C)
This application is dismissed as not pressed at present.
VALMIKI J. MEHTA, J.
FEBRUARY 01, 2012
AK
