Bhagwati Prasad Sharma vs Pt.Ram Sarup Sharma (Deceased)
2014 Latest Caselaw 3225 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CM(M) 150/2013

%                                                          JULY 21, 2014

BHAGWATI PRASAD SHARMA                                             ......Petitioner
                 Through:                Mr.Ajay Bahl, Advocate.

                          VERSUS

PT.RAM SARUP SHARMA (DECEASED)                ...... Respondent

Through: Mr.Ramkishan Saini, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?    Yes


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of Constitution of India impugns the

judgment of the first appellate court dated 16.11.2012 by which the first

appellate court dismissed the first appeal filed under Section 96 CPC

allegedly on account of bar contained in sub-Section 4 of Section 96 CPC.

2. The subject suit was a suit for recovery of Rs.7,200/- as damages for

use and occupational charges against the respondent/tenant (now represented

by his legal heirs), and in which suit there was an issue of ownership of the

petitioner/plaintiff which was decided against the plaintiff/petitioner herein.

Hence the appeal under Section 96 CPC.

3. Section 96 CPC reads as under:-

" Appeal from original decree - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable y courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed."

4. I do not agree with the impugned judgment or with the arguments

urged on behalf of the respondent/defendant that no appeal lies inasmuch as

sub-Section (4) states that appeal will lie but only on a question of law. If

according to the first appellate court, a question of law does not arise then

after discussing the merits of the case and holding that because of the

conclusions as regards merits of the case as per the judgment of the trial

court no substantial question of law arises, then possibly the appeal may be

dismissed on merits, but not that appeal does not lie under Section 96 sub-

Section (4) CPC.

5. Learned counsel for the respondent sought to place reliance on the

judgment of the learned Single Judge of the Bombay High Court in the case

of Motiram Yeshwant Gaikwad vs. Akkatai Uttam Trimukhe AIR 2003

Bombay 325 that no appeal lies where recovery claimed is less than

Rs.10,000/-. However, this judgment goes against the respondent/defendant,

because it holds that a first appeal lies but only on a question of law.

6. In view of the above, appeal is allowed and the impugned judgment

dated 16.11.2011 is set aside and the first appellate court is directed to

decide the appeal on merits in accordance with law.

7. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J

JULY 21, 2014 KA