Om Parkash Mongia Decd. Thru Lrs. vs Sudhir Kapoor & Ors.
2013 Latest Caselaw 5160 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                        RFA No.483/2004

                                    Decided on : 11th November, 2013

OM PARKASH MONGIA DECD. THR. LRS.                     .... Appellant


                         Through:      Mr.Vimal Wadhawan, Advocate.

                         Versus

SUDHIR KAPOOR &ORS.                                   .... Respondent

                         Through

    CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

                         ORDER

% 11.11.2013 CM No.16774/2013 (Restoration)

1. The instant appeal was filed by Mr.O.P.Mongia, deceased, through

his wife Smt.Krishna Mongia and Ors. against the judgment and decree

passed by the trial court by virtue of which the suit for specific

performance filed by the appellant was dismissed. During the pendency

of the present appeal, the appellant was not represented and consequently

the court was pleased to dismiss the appeal in default on 15.02.2013. The

LRs of Sh. O.P.Nangia, since deceased, namely Smt.Krishna Mongia,

Ms.Renu Mongia, Ms.Sangeeta Mongia, Ms.Anju Mongia, Ms.Aditya

Mongia, Sh.Ashu Mongia and Shri.Vinay Mongia filed an application for

restoration of the appeal to its original number. This application was CM

No.8712/2013 and the same was allowed on 02.09.2013 as my learned

predecessor had observed that a statement had been made before the court

that R-2 Sh.Krishan Gopal Kapoor had died on 25.10.2010 and no steps

were taken by the appellant for the purpose of bring the LRs of

Sh.Krishan Gopal Kapoor on record and consequently the proceedings

against Sh.Krishan Gopal Kapoor had abated and the application for

restoration of the appeal was not maintainable in the absence of the

setting aside of the abatement proceedings in the first instance.

Thereafter the present application being CM No.16774/2013 has been

filed for setting aside the order dated 02.09.2013 dismissing the suit in

default and restoration of the appeal to its original number.

2. The averments made in para nos. 2 to 4 for non appearance of the

appellant or her counsel are given as under:

"2. That Smt.Krishna Mongia used to attend this case regularly. Unfortunately, she also died on 26.10.2012.

No other LR was aware of the proceedings of this case. Moreover, Smt.Krishna Mongia herself was also acute patient of heart ailment since 2007 with 95% blockage.

3. That on 30.04.2013 the applicant was informed by some relative of the respondent living in her neighbourhood that their case has been dismissed. Thereafter she applied for inspection on 01.05.2013. She inspected the file on 02.05.2013 and came to know that this Hon'ble court was pleased to dismiss the case in default on 15.02.2013 since no one appeared for the parties. The absence of the applicant or other appellants on 15.02.2013 was neither intentional nor wilful.

4. That the applicant thereafter made hectic efforts to trace some of the papers from old records of her mother. Moreover, Ms.Sangeeta, the younger sister of the applicant is now facing kidney problems since December, 2012 after the death of her mother Smt.Krishna Mongia. The attention of all family members is diverted towards her treatment in private as well as government hospital. The applicant can produce complete treatment record, if required."

3. A perusal of the aforesaid averments would show that Ms.Renu

Mongia who has sworn an affidavit for restoration of the appeal to its

original number has expressed her ignorance about the pendency of the

present appeal and has stated that after the death of her mother

Smt.Krishna Mongia, they could not appear in the matter as they were not

aware of the proceedings while as the fact of the matter is that the appeal

is filed by deceased Sh.O.P.Mongia not only through Smt.Krishna

Mongia, but through his other legal heirs also which includes Smt.Renu

Mongia. Moreover, the falsity of the averments made in the application

for restoration of the appeal is so apparent that it is stated that she learnt

about the pendency of the present proceedings through a relative who was

living in the neighbourhood that the case had been dismissed. The

particulars of the relative have not been disclosed nor has the source of

particulars of the appeal been disclosed by the applicant as to how she

learnt about the same. It is stated in the application that upon getting this

information she applied for inspection on 01.05.2013 and inspected the

record on 02.05.2013 whereupon she learnt that the case had been

dismissed in default on 15.02.2013. If she was not aware of the

particulars of the appeal then how did she come to know about the said

particulars because it is admittedly her case that the particulars of the

appeal were disclosed to her by her relative.

4. All these averments which are duly supported by an affidavit

clearly show that the averments made in the application are not truthful

and the court should not come to the rescue of a person who is not

truthful to the court. I, therefore, feel that as no sufficient cause is shown

for the non appearance of the deceased/appellant or the LRs of the

deceased/appellant on 15.02.2013, consequently, the appeal cannot be

restored. Accordingly the application for restoration is dismissed.

CM No.16775/2013 (Condonation of Delay) CM No.16776/2013 (u/O 22 Rule 3 CPC) CM No.16777/2013 (Condonation of Delay)

1. Since the restoration application has been dismissed, all these

applications do not warrant passing of any order. The same are

accordingly dismissed.

V.K. SHALI, J

NOVEMBER 11, 2013/dm