Kashmiri Lal Bhutani vs Arvind Kumar Adukia
2015 Latest Caselaw 1306 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                     R.S.A. No.223/2014 & C.M. No.13975/2014

                                     Decided on : 12th February, 2015

KASHMIRI LAL BHUTANI                    ...... Appellant
             Through: Mr. R.K. Saini, Mr. Ayush Arora &
                      Ms. Aastha Chopra, Advocates.

                          Versus

ARVIND KUMAR ADUKIA                   ...... Respondent
            Through: Mr. Jugal Wadhwa, Mr. Rishabh
                     Wadhwa, Mr. Parth Kaushik &
                     Mr. Shashank Singh, Advocates.

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

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant. Mr. Saini,

the learned counsel for the appellant has formulated following questions

in the appeal:-

"(i) Whether the court is not required to look into and consider the rights and interests of both the parties and the current position and the subsequent events which may have taken place in the meanwhile while considering an application for restoration under Section 144 CPC and decide it accordingly?

(ii) Whether the trial court is bound to order to restore back possession under all circumstances, pending

trial, which has already been taken by the plaintiff in execution of the ex-parte decree passed earlier, on setting aside of the said ex-parte decree, as 'restitution'?

(iii) Whether the trial court should not have endeavoured to decide the suit itself during the period of 4 ½ years which it took to decide the application for restoration and whether doing so has not caused a grave prejudice to the rights and detriment to the interests of the plaintiff?

(iv) Whether the trial court committed an illegality in ordering restoration of possession after 8 ½ years, particularly when the rights and interests of the defendant already stood protected by an ad interim injunction directing the plaintiff not to create third party rights and interests in the suit property?

(v) Whether the first appellant court was not required to take into consideration the subsequent events and circumstances, particularly the one prevailing in the present case such as 8 years time gap between the taking of possession by the plaintiff in execution of the ex-parte decree and the order of restitution and four years time taken by the trial court in deciding the application for restitution itself, during which time the suit could very well have been decided?

(vi) Whether the first appellate court, under the circumstances of the case, should not have directed a speedy and expeditious disposal of the suit within a time bound frame instead of upholding the order of restoration after almost one year, and by not doing so, has committed an illegality?

(vii) Whether both the courts below committed an illegality and did not act fairly by ordering restoring back possession to the defendant, after a time gap of 8 years and as such did not take into account the rights and interests of the plaintiff while ordering restitution?

(viii) Whether both the courts below committing an illegality and did not act fairly in not realizing and appreciating that under the peculiar facts and circumstances of the case, the right, just and fair order to be made towards both the parties was to direct maintenance of status quo (which order in effect, already stood passed) rather than direct the plaintiff to restore back possession of the suit premises to the defendant and whether the same has not caused great detriment to the rights and interests of the plaintiff and prejudiced his position and given a lever to the defendant to harass and blackmail the plaintiff by protracting the trial, which he had already been doing so?"

2. I have heard the learned counsel for the appellant with regard to

these so-called substantial questions of law which are reproduced above

from the appeal. I have also heard the learned counsel for the respondent.

3. Before dealing with the questions, it may be pertinent here to give

brief background of the case. The present appellant filed a suit for

possession and mesne profits/damages for the use and occupation in

respect of the suit property against the respondent. The property in

question was a second floor of premises No.4692-4694, Laxmi Bazar

Cloth Market, Fatehpuri, Chandni Chowk, Delhi 110006. The case which

was setup by the present appellant was that he was the purchaser in

respect of the aforesaid property from the previous owner and the said

second floor was under the occupation of the respondent in the capacity

of a licensee. His licence has been terminated and yet he had failed to

vacate the premises. Accordingly, the suit for possession and

damages/mesne profits was initiated.

4. The respondent could not be served by ordinary process and

accordingly steps were taken for affecting substituted service by way of

publication. As the respondent did not appear on the date specified in the

publication, he was proceeded ex parte and an ex parte decree of

possession was passed against him on 19.3.2001.

5. Pursuant to the aforesaid ex parte decree, the possession of the suit

premises was retrieved by the present appellant. The respondent herein

filed an application for setting aside ex parte decree to which reply was

called for and thereafter, the court vide order dated 24.11.2004 set aside

the ex parte decree against the respondent as he was able to show that he

had not been served. Since the ex parte decree against the respondent

was set aside and the possession had been retrieved by the present

appellant, the respondent filed an application on 24.12.2004 under

Section 144 of the CPC for restitution of the vacant and peaceful

possession of the suit premises. The aforesaid application was allowed

by the learned trial court on 7.5.2013 after calling for the reply from the

appellant and hearing the arguments.

6. In the meantime, the present appellant had also filed a petition

being C.M. (M) No.1782/2004 against allowing of the application of the

respondent under Order XI Rule 13 CPC for setting aside the ex parte

decree which was also dismissed by this court on 7.8.2006 on account of

non-prosecution because steps were not taken for service of the

respondent.

7. So far as the order which was passed by the learned trial court on

7.5.2013 directing restitution of possession to the respondent is

concerned, that was also taken by way of an appeal being R.C.A.

No.26/2014 before the first appellate court. The appellate court after

examining the entire matter, passed a detailed order on 22.3.2014

upholding the order of restitution passed by the trial court by observing

that in case possession of the suit premises is not restored to the

respondent then conducting of trial in respect of his suit for possession

become meaningless because the possession of the suit premises has not

only been retrieved by the appellant, but also continues to be with him.

While holding so, the learned first appellate court referred to the

judgments of the Supreme Court in Binayak Swain vs. Ramesh Chand

Panigarahi; AIR 1966 SC 948 and Mohan Lal Khemka vs. Harihar

Prasad & Ors; 1 (1997) CLT 367 to support his reasoning.

8. The appellant, feeling aggrieved by the aforesaid two concurrent

orders directing the restitution of the possession of the suit premises to

the respondent, has filed the present regular second appeal. The

questions which are formulated by the appellant are essentially not

questions of law but questions of facts much less substantial questions of

law.

9. The contention of Mr. Saini, the learned counsel for the appellant,

has been that the case of the respondent has been that he was living at the

address in respect of which the suit was filed and had he been living there

then there would have been no difficulty in serving him. In respect of the

first round of litigation as well as in the C.M. (Main), the process server's

report shows that on visiting the premises, the respondent was not found

available at such an address. The second submission of the learned

counsel has been that it has taken eight years for the court to decide the

application for restitution and that too after retrieving the possession

almost 11 years back while as this suit itself could have been decided

within a period of 2-3 months itself. Therefore, because of these

intervening and supervening facts instead of restoring the possession back

to the respondent today, it would be just and proper to keep the interest of

the appellant also in view and not compel the appellant to restore back the

possession of the suit premises to the respondent. It has been contended

by Mr. Saini that all these aspects have not been taken care of by both the

courts below and thus, there is an illegality with regard to the orders

which have been passed by the courts below.

10. I have carefully considered the submissions as well as the

questions which are purportedly formulated by Mr. Saini. The question

of balancing of interest is a question of fact which the two courts below

have considered. The very fact that the first appellate court has

specifically taken note of the fact that if the possession of the suit

premises continues to be with the appellant and yet he is permitted to

pursue his suit for possession that will only be a meaningless exercise

inasmuch as it will tantamount to putting cart before the horse. Assuming

for a moment that the possession continues with the appellant and the suit

is ultimately decreed in favour of the appellant, the entire exercise

becomes an exercise in futility with the court and a sheer wastage of time.

The ex parte decree on the basis of which the appellant had retrieved the

possession has itself been set aside, the necessary corollary is that the

status quo ante ought to be restored as has been done by the two courts

below. The two courts below have already exercised their judicial

discretion in favour of the respondent and for valid and justified reasons.

It is not open to the appellant to contend that merely because there is a

considerable time gap between the retrieval of the possession and the

order of restitution; it does not mean that the possession should not be

restored. In case, such reasoning is given, the person who has taken the

possession would have a vested interest in getting the matter adjourned

repeatedly and would not permit any court to restore the possession by

causing delay. Similarly, the High Court cannot be called upon to see the

impugned order only by calling it illegal. The other questions raised

regarding the fairness of the court or the court to decide the matter in a

time bound manner cannot be said to be involving any substantial

question of law. Therefore, merely because the High Court being a

superior court holds a different view, even if we assume for the sake of

argument which should not substitute its own opinion in place of the

opinion or the view expressed by the two courts below. That is precisely

the reasons why Section 100 CPC also shows that at the stage of the

second appeal, the appeal need not be entertained unless and until a

substantial question of law is involved. I am not impressed with any of

the submissions made by the learned counsel for the appellant that the

present appeal involves any substantial question of law.

11. Accordingly, the appeal is dismissed. Interim order of status quo

which is granted on 27.8.2014 stands vacated.

V.K. SHALI, J.

FEBRUARY 12, 2015 'AA'