Delhi High Court
Dr. Autar Krishan Gupta & Anr. vs Brig Krishan Gupta Thru. Lrs. on 7 February, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. NO.316/2005 & CM 16091/2005 (for stay)
Decided on : 7th February, 2013
DR. AUTAR KRISHAN GUPTA & ANR. ...... Appellants
Through: Appellant No.2 in person.
Versus
BRIG KRISHAN GUPTA THRU. LRS. ...... Respondent
Through: Ms.Sangeeta Jain, Adv. for R-1(b to d)
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellants under
Section 100 read with Order 43 Rule 1 CPC against the judgment dated
12.8.2005 and has been pending in this court for the last nearly seven
years.
2. A perusal of the order sheets show that repeated adjournments have
been taken by the counsel for the appellants. Today, the appellant No.2 is
present and again prays for an adjournment, however, I do not accept the
said request to adjourn the matter as the very maintainability of the
present appeal is in question.
3. Before dealing with the question as to whether the present appeal is
maintainable or not, it would be pertinent here to give brief facts of the
case. One Mr. Brij Krishan Gupta filed a suit for permanent injunction in
the year 1979 against his brothers, namely, Chander Krishan Gupta,
Avtar Krishan Gupta, Balraj Krishan Gupta and his sister, Anjali Gupta.
It was alleged in the said suit that he was in peaceful possession of
premises No.38, Ratendon Road (subsequently named as Amrita Shergill
Marg), New Delhi and the defendants were interfering with his
possession. Along with the main suit, Brij Krishan Gupta had also filed
an application under Order 39 Rules 1 & 2 CPC for ad interim injunction
which was dismissed.
4. An appeal was preferred against the same which was also
dismissed. Thereafter, a Civil Revision No.845/1979 is stated to have
been filed in the High Court which was allowed on 21.12.1979. For the
purpose of deciding that civil revision, the record of the original suit was
also requisitioned. However, after the decision of the civil revision, the
original record was not transmitted back to the trial court for almost 18
years. None of the parties seem to have taken any interest in ensuring
that the record goes back. When the record was received back by the trial
court on 8.1.1998, notices were issued for the purpose of appearance of
both the parties. The factum of the death of Brij Krishan Gupta on
16.4.1998 was brought to the knowledge of the court for the first time
only on 30.4.1998. Since no application under Order 22 Rule 3 CPC was
filed consequently, the suit by operation of law had abated after the
expiry of 90 days from the date of his death. Subsequent thereto, an
application was filed before the Civil Judge for setting aside the order of
abatement along with an application under Section 5 of the Limitation
Act. It was further alleged in the application for substituting the legal
heirs of Brij Krishan Gupta that on 30.9.1998, fresh attempt was made by
the defendants in the suit to dispossess the legal heirs of Brij Krishan
Gupta. The Civil Judge rejected the application under Order 22 Rule 3
CPC on 27.11.1999 on two grounds; firstly, the abatement of suit had
taken place by operation of law and, secondly, the application for setting
aside abatement itself was filed beyond 60 days and no 'sufficient cause'
was shown for condoning the delay. As regards the fresh attempt of
defendants to dispossess the legal heirs of Brij Krishan Gupta on
30.9.1998 is concerned, it was observed that it constituted a fresh cause
of action and, therefore, it could not be a ground for substitution and
allowing the setting aside of the order of abatement and it would only
give a fresh cause of action to initiate a fresh suit against the defendants.
5. Feeling aggrieved, the legal heirs of Brij Krishan Gupta preferred
an appeal before the Court of Additional District Judge being R.C.A.
No.2/03/1999. This appeal was allowed by the learned Additional
District Judge on 12.8.2005 and the order dated 27.11.1999 passed by the
Civil Judge dismissing the application under Order 22 Rule 3 CPC was
set aside and the abatement order was recalled. It was further directed
that the legal heirs of Brij Krishan Gupta be brought on record, who may
file the amended memo of parties and the case would proceed further.
The reason given by the appellate court for setting aside the order of
abatement of suit was that substantial justice between the parties should
be done on merits of the matter and the law of limitation not to be
construed in a very pedantic manner.
6. Feeling aggrieved by the said order of setting aside the order of
abatement by the learned Additional District Judge, the present second
appeal has been filed by the two appellants, who happen to be the co-
sharers in the property in question to the extent of 25 per cent each along
with respondent No.3 (Anjali Bindal) in the appeal.
7. I have heard the appellant No.2 in person as well as the learned
counsel for the respondents. The two substantial questions of law which
are stated to have been formulated in the appeal are as under :
"1. Whether the learned Additional District Judge would
have ordered for setting aside of abatement even when
the right to sue does not survive?
2. Whether learned Additional District Judge in setting
aside abatement even when the application has pleaded a
fresh cause of action and consequently a separate suit
will lie?"
8. The above two questions are essentially questions of fact and not
the questions of law, much less substantial questions of law. Apart from
this, the appeal itself is not maintainable as a regular second appeal. This
is on account of the fact that the second appeal is maintainable only
against a decree passed in appeal by any court sub-ordinate to the High
Court. In the instant case, no decree has been passed as yet. What was
under challenge before the first appellate court was an order passed by the
Civil Judge dismissing the application of some of the parties for
substitution of legal heirs and the order of abatement of the suit. Because
of this legal position, I am afraid that the present second appeal is not
admissible in terms of Section 100 of the CPC.
9. For these reasons, I feel that despite the fact that the regular second
appeal has been filed in the year 2005, it has been unnecessarily kept
pending. I feel that the appeal is not maintainable and accordingly, the
same is dismissed. The interim application also stands dismissed.
V.K. SHALI, J.
FEBRUARY 07, 2013
'AA'
