Delhi High Court
Mahant Sharda Ram(Decd.) Thr. ... vs D.D.A. & Ors. on 21 February, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. NO.71 OF 2004 & CM 3567/2004
Decided on : 21st February, 2013
MAHANT SHARDA RAM(DECD.) THR. LR'S ...... Appellant
Through: Mr.Ajay Bahl, Adv.
Versus
D.D.A. & ORS. ...... Respondents
Through: Mr. Rahul Bhandari, Advocate for
the DDA.
Mr. Rahul Sharma, Advocate for
R-2.
Mr. Mukesh Sharma, Advocate for
R-5.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. I have heard the learned counsel for the appellant. The learned
counsel has not been able to make out any substantial question of
law in the present appeal.
2. Briefly stated the facts of the case are that the appellant Mahant
Sharda Ram (since deceased), now represented by his wife and son
filed a suit for declaration against the respondents way back on
16.4.1966. The declaration which was sought by Mahant Sharda
Ram was that the land situated in Khasra no.148, Min. situated at
Bela Estate, Delhi comprising of 4 bighas 1 biswas pukh according
to Jamabandi F 1952-53, is a Wakf property which was originally
gifted to Mahant Baij Nath, son of Mahant Raghunath Dass,
ancestor of the deceased plaintiff by Shah Alam the Second, in
Hijri in 1189. It was alleged that the present appellant was sought
to be dispossessed from the said land in question by the
respondent/DDA and therefore, the suit was filed.
3. The suit was dismissed in default on 25.5.1978. An application
u/O 9 Rule 9 CPC was filed by Mahant Sharda Ram for restoration
of the suit on 27.5.1978. On the said application, the following
issues were framed by the trial court, on 16.1.1980:-
(i) Whether there is „sufficient cause‟ for restoration of suit?
(ii) Relief.
4. The matter was listed for evidence of Mahant Sharda Ram but
unfortunately before any evidence could be led, Mahant Sharda
Ram expired on 29.3.1982. An application u/O 22 Rule 3 CPC
was filed for bringing his legal heirs i.e. his wife and children on
record.
5. **It may be pertinent here to mention that the brother of Mahant
Sharda Ram, one Mahant Raje Lal had also filed an application
under Order 22 Rule 3 read with Order 22 Rule 10 CPC for being
impleaded as the legal heir of Mahant Sharda Ram. Necessary
orders were passed by the trial court which was taken up to the
High Court and ultimately, the High Court had observed that in
case the legal heirs namely, the widow and the children of Mahant
Sharda Ram (since deceased) do not appear, in that eventuality,
brother of the deceased will be heard on the merits of the case at
the stage of final hearing. All these points may not be very
relevant for the decision of the present appeal but the fact of the
matter remains that sufficient number of opportunities were given
to the deceased/plaintiff as well as his legal heirs to adduce
evidence in pursuance to the issues framed with regard to proving
of 'sufficient cause' for non appearance when the suit was
dismissed for non prosecution.
6. The appellate Court had noted that as many as ten opportunities
were given, but as no evidence was adduced, the learned trial court
dismissed the application under Order 9 Rule 9 CPC seeking
restoration of the suit.
7. Feeling aggrieved by the order dated 30.9.1999 passed by the Civil
Judge rejecting the application of the legal heirs of Mahant Sharda
Ram, they assailed the said order and filed an appeal before the
Additional District Judge, Delhi, bearing as RCA no.149/99. This
appeal was also dismissed on 15.10.2003 which has resulted in
filing of the present regular second appeal by the appellant.
8. The learned counsel for the appellant has been heard sufficiently.
He has not been able to make out any substantial question of law
from the present appeal.
9. The learned counsel has drawn the attention of the Court to three
questions purported to have been framed in the appeal, which reads
as under:-
"(a) Whether when the case is not fixed for
evidence, then the appellants should bring witness
or put themselves in the witness box when the case
is not fixed for evidence.
(b) Whether the ld. Court below dismissed the
application under Order 9 Rule 9 CPC without
considering merits in the application that the suit
was dismissed in default on 25.5.78 and the
application was filed on 29.5.78 along with
medical certificate and the ld. Court decided case
on merits on the application or decided the said
application for not leading evidence. It is also a
substantial question of law which has not been
dealt by both the ld. Courts below.
(c) Whether both the ld. Courts below have not
appreciated that once order has been passed that
if the appellants could not prosecute the case, an
opportunity is granted to the respondents no.2 to
4 herein to prosecute the case. However, no
opportunity was granted by both the courts below
to the applicant Raje Lal/his legal heirs i.e.
respondents no.2 to 4 herein and this is also a
substantial question of law which has also not
been dealt by both the courts below."
10. All the three questions which are formulated hereinabove, are
essentially questions of fact and not questions of law. It is very
unfortunate that a suit which was filed in 1965 was not prosecuted
by the appellants earnestly and it took them almost 2 decades to get
the application for restoration decided in 1998 when the suit had
been dismissed in default in 1978. We are already almost 47 years
down the line from the date of filing of the suit and even the issues
in the main suit have still not been drafted. It clearly shows the
gross negligence of the deceased plaintiff and thereafter, by his
successor in interest in pursuing the matter. Moreover, there is
concurrent finding by the Courts below that the appellants have not
been able to show any 'sufficient cause' for their non appearance
and for restoration of the suit.
11. Having regard to the aforesaid, I am of the view that no substantial
question of law is arising from the regular second appeal and
accordingly, the same is dismissed.
V.K. SHALI, J.
FEBRUARY 21, 2013
RN
