Delhi High Court
Har Pyari vs Geeta Mishra on 7 March, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.10 of 2013 & C.M. No.623 of 2013 (for stay)
Decided on : 7th March, 2013
HAR PYARI ...... Appellant
Through: Mr. B.S. Choudhary and Ms. Chitra
Goswami, Advocates.
Versus
GEETA MISHRA ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant under Section
100 read with Section 151 CPC against the judgment dated 26.9.2012
passed by the learned Additional District Judge dismissing the appeal of
the appellant and upholding the judgment dated 22.12.2011 passed by the
learned trial court.
2. The only grievance which the learned counsel for the appellant has
raised before this court is that principles of natural justice have not been
followed in the instant case. It has been urged that the appellant was not
given sufficient opportunities for adducing her defence and consequently,
the judgment and the decree passed by the trial court on 22.12.2011 and
upheld by the first appellate court on 26.9.2012, is not sustainable in the
eyes of law.
3. I have carefully considered the submissions made by the learned
counsel for the appellant. Briefly stated the facts of the case are that the
respondent/plaintiff had filed a suit bearing No.854/2007 for possession
against the appellant/defendant in respect of a plot of land measuring 140
square yards bearing Municipal No.M-77, situated within the area of
Village Nawada (now known as Shyam Park Extension), Uttam Nagar,
New Delhi-59. The respondent/plaintiff was claiming herself to be the
owner of the said property while as the allegations against the
appellant/defendant were that she was living in the adjoining property
No.M-76, Shyam Park, Extension, Nawada, Uttam Nagar and she had
illegally trespassed into the suit property. The appellant herein, in
response to the notice, had put in appearance and contested the suit. She
claimed herself to be the tenant under one Om Parkash Mishra in respect
of the suit property.
4. On the pleadings of the parties, following two issues were framed:-
"1. Whether the plaintiff has no locus standi to file the
instant suit? OPD
2. Whether the plaintiff is entitled to decree for
possession as claimed? OPP
3. Relief."
5. The respondent/plaintiff, in support of her case, examined five
witnesses. The appellant herein entered into her defence and filed her
own affidavit by way of evidence. Despite the fact that several
opportunities were given to the appellant to appear for the purpose of
cross-examination, she failed to do so. Ultimately the trial court was
compelled to close her evidence on 17.12.2011. Since she did not appear
for cross examination, obviously her statement could not be read in
evidence. Thereafter, the matter was heard and the trial court passed the
judgment and decree of possession in favour of the respondent/plaintiff
on 22.12.2011.
6. Feeling aggrieved, the appellant filed the first appeal bearing
R.C.A. No.11/2012 titled Har Pyari vs. Geeta Mishra which came to be
listed before the learned Additional District Judge, East District,
Karkardooma Courts, Delhi. Before the first appellate court also, one of
the main submissions which was urged vehemently was that the trial
court did not give an opportunity to the appellant to lead evidence to
prove her case. The first appellate court also perused the trial court
record and came to the conclusion that sufficient opportunities have been
given to the appellant to lead her evidence and if she has chosen not to
appear then she has done so at her own peril. Accordingly, the said
appeal was dismissed on 26.9.2012.
7. Still not feeling satisfied, the present regular second appeal has
been filed by the appellant.
8. According to Section 100 CPC, the second appeal is permissible
only when a substantial question of law is involved. The only grievance
of the appellant in the present second appeal is that the principles of
natural justice have not been complied with inasmuch as sufficient
number of opportunities have not been given to her to lead her evidence.
The two courts below have returned a concurrent finding holding that
despite sufficient opportunities having been given to the appellant, she
has chosen not to appear after filing of her affidavit so that she could be
subjected to cross-examination. It is unbelievable for this court to assume
that sufficient number of opportunities have not been given to the
appellant when both the Courts have noted so after reference to the
record.
9. The learned counsel for the appellant has contended that non-
appearance of the appellant on 17.12.2011 was on account of issuance of
non-bailable warrants against her in another criminal case and that she
got anticipatory bail only on 23.12.2011.
10. In any case, these facts are totally immaterial for the purpose of
arguments when the courts below have specifically noted down that
several opportunities were given to the appellant to adduce her evidence.
A trial of case cannot be kept open endlessly.
11. In view of the above, since no substantial question of law is
involved, the appeal is dismissed.
V.K. SHALI, J.
MARCH 07, 2013
'AA'
