Delhi High Court
Rikesh Kumar Gaur vs Devi Charan Sharma & Ors. on 25 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.92/2014
% 25th March, 2014
RIKESH KUMAR GAUR ....Appellant
Through: Mr. P.K. Mittal, Advocate.
VERSUS
DEVI CHARAN SHARMA & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.5486/2014 (condonation of delay)
1. For the reasons stated in the application, delay of 50 days in
filing the appeal is condoned.
C.M. stands disposed of.
+ RSA No.92/2014 and C.M. No.5485/2014 (stay)
2. This Second Appeal is filed impugning the judgment of the first
appellate court dated 26.9.2013 by which the first appellate court has
dismissed the appeal filed by the appellant herein against the judgment of
RSA No.92/2014 Page 1 of 4
the trial court dated 4.8.2012. Trial court had dismissed the suit for
permanent and mandatory injunction of the appellant/plaintiff by its
judgment dated 4.8.2012.
3. Suit was filed by the appellant/plaintiff claiming two reliefs.
First was for value of the articles which were alleged to have been taken
away by the respondent no.2/wife. Second relief was claimed with respect
to an FDR lying in the joint names of the parties with the defendant
no.3/bank at Haldwani, District Nainital, Uttrakhand. Respondent
no.2/defendant no.2/wife in her written statement not only denied that she
had not taken the articles in question but had stated that the appellant had
defrauded her because appellant was already married when he married
respondent no.2. Trial court has dismissed the suit including by holding that
the appellant/plaintiff failed to prove the factum with respect to respondent
no.2/defendant no.2/wife having taken away the goods as claimed by the
appellant/plaintiff.
4. Before me, counsel for the appellant has only challenged the
following portion of the first appellate court:-
"The appeal stands dismissed but subject to the following
modification. The impugned judgment and decree is upheld.
However, considering the undertaking given by the defendant no.3,
Bank and further considering the FDR being found in the joint name,
the proceeds of the same be kept in abeyance till the plaintiff and the
RSA No.92/2014 Page 2 of 4
defendant no.2 get proper order from the competent court having
jurisdiction at Haldwani. However, in the event of plaintiff and
defendant no.2 amicably conceding to shave the proceeds equally
since it was in their joint name, the Bank may release the same
equally to them. In case if they do not agree to share equally, the
Bank shall keep the proceeds with them till proper orders are obtained
by the parties from the courts having proper territorial jurisdiction.
Thus, the appeal stands disposed of. Decree be prepared
accordingly. TCR be sent back. A copy of the operative portion of
the appeal be sent to defendant no.3, bank. File be consigned to
Record Room."
5. Counsel for the appellant argues that this direction given by the
appellate court ought not to have been given because the same was not given
by the trial court. I cannot agree. Appellate court has ample powers under
Order 41 Rule 33 of Code of Civil Procedure, 1908 (CPC) to do justice and
which provision applies squarely to the present case.
6. I do not find that there is any prejudice to the appellant/plaintiff
inasmuch as the impugned portion of the judgment only directs that FDR be
kept with the bank and be released subject to court orders or agreement
between the parties, and which has been done because the courts at Delhi
have no territorial jurisdiction as regards the fixed deposit which is kept with
the respondent no.3/defendant no.3-bank at Haldwani, District Nainital,
Uttarakhand.
RSA No.92/2014 Page 3 of 4
7. In view of the above, no substantial question of law arises and
this appeal is therefore dismissed, leaving the parties to bear their own
costs.
MARCH 25, 2014 VALMIKI J. MEHTA, J.
Ne
