Dinesh Kumar vs Gulshan Rai Chadha & Ors
2015 Latest Caselaw 1680 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                              R.S.A. No.145/2012

                                       Decided on : 26th February, 2015

DINESH KUMAR                                           ..... Appellant
                            Through:      Mr.Rajiv Dewan, Adv.
                         Versus

GULSHAN RAI CHADHA & ORS                   .... Respondent
                Through: Mr.Neeraj Gupta and Mr.Rishabh
                          Mehta, Advs. for R-1 (a) to (d).
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by one Sh.Dinesh Kumar

against the order dated 01.06.2012 by virtue of which his application

under Section 5 of the Limitation Act, 1963 seeking to set aside the

judgment dated 18.07.2007 on the basis of his application under Order 9

Rule 13 CPC, was dismissed.

2. Before dealing with the submissions of the learned counsel for the

appellant, it would be pertinent to give a brief background of the case

with reference to the various claims of the parties.

3. R-1/Sh.Gulshan Rai Chadha had filed a suit for possession against

R-2 to R-4 namely Sh.Prem Kumar Khurana, Sh.V.K.Sharma and

Sh.Purshottam Dass Patel. The case which was set up by Sh.Gulshan Rai

Chadha was that he was the owner of a plot bearing No.49/142 measuring

200 square yards out of Khasra No.897 to 903 situated in Block-A, Gulab

Bagh Colony in the revenue estate of Village Nawada, New Delhi which

he had purchased on 04.08.1972 by a registered sale deed from Sh.Chuni

Lal s/o Sh.Param Ram. It was alleged by him that after noticing the

movement of R-2/D-1 around the suit property, he had deputed a

chowkidar at the suit property who had gone to his native village in

December, 1989 after handing over the keys to the R-1/plaintiff. It is

alleged that the R-2/D-1 taking advantage of this situation, broke open the

door of the suit property and took possession of the same. Accordingly,

R-1/plaintiff initiated proceedings by filing a suit to retrieve the

possession.

4. The R-2/D-1 filed his written statement and took the plea that he

was the owner of the property in question and he had sold it R-4/D-3

Sh.Purshottam Dass Patel. R-3/D-2 Sh.V.K.Sharma took the stand that

he had nothing do with the suit property while as R-4/D-3 took the plea

that he had sold the property to Sh.Govind Bhai Patel, who is his real

brother. Sh.Govind Bhai Patel was accordingly impleaded as defendant

No.4 in the suit and he became the only contesting party.

5. The trial court framed the issues and one of the issues framed by

the trial court was as to whether the plaintiff/Sh.Gulshan Rai Chadha was

entitled to possession of the suit property or not. Sh.Gulshan Rai Chadha

in support of his plea for retrieval of possession proved his sale deed

which was more than thirty years old and accordingly a certified copy of

the said document was assumed to be correct as the basis of transaction.

So far as the defendant No.4 is concerned, he was not able to prove any

document to show that he had validly purchased the property in question

though he had admitted that in 1998 he had sold the same to one

Sh.Ramneek Patel s/o Sh.Shiv Gun Bhai Patel through a registered sale

deed. This Ramneek Patel s/o Sh.Shiv Gun Bhai Patel was never added as

party to the suit and accordingly a decree for possession was passed in

favour of Sh.Gulshan Rai Chadha.

6. The present appellant/Mr.Dinesh Kumar claims himself to have

purchased a part of the aforesaid suit property measuring 100 square

yards from Ramneek Patel s/o Sh.Shiv Gun Bhai Patel. He filed an

application under Section 146 and Order 22 Rule 10 read with Section

151 CPC for permission to file an appeal against the judgment and decree

dated 18.07.2007. Along with the application, he also filed an appeal

under Section 96 CPC accompanied by an application under Section 5 of

the Limitation Act, 1963. In the application under Section 146 and Order

22 Rule 10 read with Section 151 CPC, the appellant alleged that on

07.01.2008, 15-20 persons had come to the property in question and

sought to dispossess him whereupon he learnt that an execution petition

with respect to the decree passed in favour of Sh.Gulshan Rai Chadha

was sought to be enforced. Accordingly, he learnt about the decree in

respect of the suit property having been passed on 18.07.2007 in favour

of Sh.Gulshan Rai Chadha.

7. He immediately applied for certified copy and filed his objections

to the execution petition on 10.01.2008 under Order 21 read with Section

151 CPC, which are stated to be pending. In the condonation of delay

application filed under Section 5 of the Limitation Act, 1963, he sought to

give an explanation for the delay in filing the appeal to the effect that he

learnt about the decree dated 18.07.2007 only on 07.01.2008 whereafter

he applied for certified copy thereof and took steps to file the appeal

which has caused a delay of 30 days which was beyond his control.

8. The application seeking condonation of delay was disallowed by

the learned ADJ vide order dated 01.06.2012 on the ground that no

cogent reason had been given by the appellant/Dinesh Kumar and the

averments made by him in the application were vague. It is against this

order dated 01.06.2012 that the present second appeal has been filed by

the appellant.

9. Mr.Dewan, in the background of the aforesaid facts, has contended

that a substantial question of law arises for consideration of this court

namely whether a decree of possession can be executed against a person

who is a lawful owner of part of the property and further that the

application under Section 5 of the Limitation Act, 1963 ought to have

been allowed by the learned ADJ as he has failed to appreciate that the

law regarding condonation of delay is very liberal and the reasons

because of which there was a delay in filing the appeal seeking assailing

of order and judgment dated 18.07.2007, were not duly appreciated by the

learned ADJ.

10. It has been contended that the learned ADJ has failed to appreciate

that under Order 22 Rule 10 CPC, the present appellant being a purchaser

of the interest of the predecessor in interest Mr.Ramneek Patel ought to

have been permitted to assail the judgment and decree passed by the

learned court vide order dated 18.07.2007. The learned counsel in

support of his contention has relied upon Raj Kumar v. Sardari Lal and

Ors; (2004) 2 SCC 601; Haribhai Laxmanbhai Sindhav v. State of Gujarat

and Ors; (2010) 12 SCC 570 and Hardevinder Singh v. Paramjit Singh &

Ors; 2013 AIAR (Civil) 154 to contend that the appellant ought to have

been permitted to challenge the judgment and decree dated 18.07.2007 as

it raises a substantial question of law.

11. I have gone through the judgments relied upon by the learned

counsel for the appellant and I have also gone through the record. At the

outset, it may be stated that there is no question of law involved in the

matter much less a substantial question of law. The judgments which

have been relied upon by the learned counsel for the appellant are not

applicable to the facts of the present case.

12. The learned counsel for the appellant himself has admitted that

although a decree of possession has been passed in favour of Gulshan Rai

Chadha and against R-2 to R-4 as far back on 18.07.2007 in respect of

which execution petition is pending, the present appellant/Dinesh Kumar

has already filed objections under Order 21 read with Section 151 CPC in

the said petition. That being the position, Section 47 CPC clearly lays

down that if any execution petition is filed for retrieval of possession of

the premises in which any application is filed by an aggrieved party who

is claiming to have an independent right, then all the questions which he

may raise with regard to his right in the said property, will be decided in

the said execution petition and not by way of independent suit.

Accordingly, the present appellant having already chosen to have filed

objections in the execution petition must await the decision in the said

execution petition. So far as the objections are concerned, it cannot be

permitted that apart from filing objections with regard to the execution of

the decree qua him or that the adjudication of rights liabilities in the

execution petition itself, the appellant independently raises objections to

the judgment and decree by filing an application under Order 9 Rule 13

CPC because the said judgment and decree, though passed in the presence

of the contesting parties, cannot be construed to be an ex parte decree

only on account of the fact that the present appellant was not a party to

the original suit. So far as the judgment in the case of Raj Kumar's case

which has been relied upon by the learned counsel for the appellant is

concerned, the same is not applicable to the facts of the present case and

it deals with a situation where during the pendency of a suit itself, the

property had been transacted, that the court came to observe that the

prospective purchaser will be bound by the doctrine of lis pendens and his

application under Order 9 Rule 13 CPC along with a prayer under Order

22 Rule 10 CPC can be considered on account of him being the assignee

of the interest from the predecessor who had an interest in the suit

property.

13. The second judgment which has been relied upon by the learned

counsel for the appellant is in Hardevinder Singh's case (supra) wherein

it has been observed that an aggrieved party can file an appeal seeking to

bring himself into the category of an aggrieved party because he is

claiming himself to be the purchaser of the suit property in respect of

which a decree is sought to be executed by Gulshan Rai Chadha and

therefore entitling him to file an application under Order 9 Rule 13 CPC

as well as the present regular second appeal. If the judgment is seen, it

will make it clear that the aggrieved party in the context of that judgment

has been referred to be a party who was already a pre-existing defendant

in the suit itself and not a stranger like the present appellant who was not

a party to the original suit and, therefore, the said judgment is also

distinguishable from the facts of the present case.

14. The last judgment which has been relied upon by the appellant is

with regard to condonation of delay in Haribhai Laxmanbhai Sindhav's

case (supra).

15. I have gone through the judgment. There cannot be a dispute with

regard to the proposition of law laid down in the judgment with regard to

the condonation of delay where the law is now almost well settled by a

catena of authorities which is to the effect that while condoning the delay

what is material is not the length of delay but the bona fides of a party.

While condoning the delay, each day's delay need not be explained but

the reason or the ground on which the party was prevented from

approaching the court for the purpose of filing an appeal must be genuine,

bona fide and convincing. It is also settled that law of condonation of

delay has to be liberally construed but even if that is done, I feel that the

application of the appellant seeking delay in filing the appeal before the

ADJ does not meet the test of sufficient cause for the reasons which have

been given by the learned ADJ in its impugned order dated 01.06.2012

where he has observed that the averments made in the application seeking

condonation of delay are vague and bereft of any reason. De hors the

said rejection, I feel as the appellant has already filed objections under

Section 47 r/w Order 21 Rule 97 to 101 establishing or alleging his

independent right or title to the suit property, those objections need to be

decided rather than entertaining the instant appeal. Moreover, this

appeal, in my considered opinion, does not deserve to the entertained.

16. Accordingly, the present regular second appeal is dismissed.

17. No order as to costs.

V.K. SHALI, J.

FEBRUARY 26, 2015 dm