Delhi High Court
Smt. Zubeda vs Shri Ismail Beg on 21 November, 2014
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 21, 2014
+ RSA 355/2014
SMT. ZUBEDA ..... Appellant
Through: Mr. B.P. Singh, Advocate
versus
SHRI ISMAIL BEG ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
C.M. No.19178/2014
There is delay of 133 days in re-filing the accompanying appeal.
Misplacing of file by counsel is the reason put forth for the delay
occasioned. Since the application is accompanied by affidavit of the
counsel, this application is allowed and delay in re-filing is condoned.
Application is disposed of.
RSA 355/2014
Appellant is the defendant, who has failed to contest respondent-
plaintiff's suit declaring General Power of Attorney of 11 th August, 2001
etc. in favour of appellant-defendant in respect of suit property being null
and void.
RSA No.355/2014 Page 1
The eviction petition under The Delhi Rent Control Act filed by
respondent-plaintiff against appellant-defendant herein is stated to be
pending and the stand taken by appellant-defendant in that eviction
petition is of becoming owner of the suit property by virtue of aforesaid
General Power of Attorney of 11th August, 2001.
Appellant's husband and respondent were real brothers and stand
of respondent is that appellant's husband was a tenant under him in the
suit property at a monthly rent of `3,200/- per month but appellant's
husband had unfortunately died on 24th December, 2012. Failure of
appellant-defendant to file written statement and to cross-examine
respondent-plaintiff and to lead evidence, resulted in respondent's suit
being decreed ex parte against appellant herein.
At the hearing, it was submitted by learned counsel for appellant
that title deeds of respondent are forged and that a party ought not be
made to suffer on account of fault of a counsel. To submit so, reliance
was placed upon Apex Court's decision in Rani Kusum (Smt.) Vs.
Kanchan Devi (Smt.) & Ors. (2005) 6 SCC 705. Thus, it was submitted
that an opportunity ought to be granted to appellant to file written
statement and to contest the suit of respondent, as appellant-defendant has
a good case on merits.
Upon hearing and on perusal of impugned judgments, I find that
the alleged negligence attributed to Shri A.K. Sharma, the previous
counsel falls flat, as the First Appellate Court in the impugned judgment
has reproduced the order sheets of the eviction petition which shows that
appellant herein was duly represented by counsel. No doubt genuine
cause of a bona fide litigant should not be defeated due to fault or
RSA No.355/2014 Page 2
negligence of a counsel but there is no equity in favour of appellant as no
reasonable explanation is forthcoming as to why appellant had not filed
written statement and had not cross-examined respondent-plaintiff. The
lack of diligence is writ large. Infact, there is gross negligence on the part
of appellant, which cannot be condoned at this belated stage. Such a
view is being taken because had the appellant been bona fide then a
revision ought to have been filed by appellant against the order curtailing
right of appellant to file written statement. During the course of hearing,
it was not shown as to why such a course was not adopted.
In view of aforesaid, this Court finds that there is no perversity in
the judgments of the courts below. Apex Court's decision in Rani Kusum
(Supra) has no application to the facts of the instant case. No substantial
question of law arises in this second appeal.
Accordingly, this appeal is dismissed with no orders as to costs.
(SUNIL GAUR)
JUDGE
NOVEMBER 21, 2014
r
RSA No.355/2014 Page 3
