Shyam Lal Mittal vs Sarla Mittal & Ors
2015 Latest Caselaw 135 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                        RSA No.28/2007

                                  Decided on : 9th January, 2015

+
    SHYAM LAL MITTAL                                      ..... Appellant

                       Through:      Mr.Ashok Sapra, Adv.

                       versus

    SARLA MITTAL & ORS                                 ..... Respondent

                       Through:      Applicant in person       in   CM
                                     No.17823/2014.
    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

    V.K. SHALI, J. (ORAL)

C.M. No.17823/2014 (u/O 1 Rule 10 CPC)

1. This is an application filed by the brother of the respondent

No.1/plaintiff (since deceased) for being impleaded as a party to

the present appeal.

2. It has been contended by the learned counsel for the applicant

that he is the brother of respondent No.1/plaintiff and as the

respondent No.1/plaintiff Smt.Sarla Mittal has died and there is

a will purported to have been made by her in respect of the property in question in his favour, therefore, he may be brought

on record by allowing the present application for impleadment.

3. I have considered the submission and have also gone through

the record.

4. The applicant cannot be permitted to be impleaded as a party in

the present regular second appeal. This is on account of the fact

that the appellant has filed the present regular second appeal

against the concurrent finding of the courts below. The

respondent No.1/plaintiff in the suit No.103/1997 is the

dominus litis of her case and she chooses to file the suit against

the present appellant and the statutory body i.e.DDA. Merely

because the respondent No.1/plaintiff, during the pendency of

the suit has died, does not give rise to ipso facto an order of

impleadment unless and until the right to sue survives and the

application is filed within stipulated period. Further, the Will

has not been probated when her husband, who is the appellant,

is alive. I find no justification for impleading the brother of the

respondent No.1/plaintiff as a party in the matter for two

reasons. Firstly, the appellant was the husband of respondent

No.1/plaintiff and thus has a better right to succeed to the interest of the respondent No.1/plaintiff and secondly, the

application itself is filed beyond 90 days.

5. The applicant is free to take such recourse as may be available

to him in accordance with law in case he has any cause of action

accruing to him. Accordingly, the application is dismissed.

R.S.A. No.28/2007

1. This is a regular second appeal filed by the appellant against the

judgment of the first appellate court dated 11.09.2006

upholding the judgment and decree passed by the trial court

vide order dated 30.08.2005.

2. The appeal has been pending for the last six year in this court

and stands admitted without formulation of any substantial

question of law. No appeal can be admitted under Section 100

CPC without there being formulation of a substantial question

of law which may be done by the appellant concerned or

alternatively in case he fails to do so, by the court. It seems that

this fact has been ignored inadvertently resulting in colossal

wastage of judicial time.

3. I have heard the learned counsel for the appellant and I have

also gone through the record.

4. Briefly stated, the facts of the case are that the respondent filed

a civil suit on 08.05.1991 bearing Suit No.103/1997 for

declaration, permanent and mandatory injunction against the

present appellant/defendant No.4 Mr.Shyam Lal Mittal, her

husband. DDA was also made a party to the suit. The case set

up by the respondent No.1/plaintiff in the suit was that she is the

owner of the property in question.

5. The aforesaid suit was decreed in favour of the respondent

No.1/plaintiff on 30.08.2005.

6. The appellant/defendant No.4 feeling aggrieved filed a first

appeal which came to be decided by the learned ADJ vide order

dated 11.09.2006.

7. It may be pertinent to mention that despite service, the present

appellant/defendant No.4 was proceeded ex parte on 22.04.1993

by the trial court. However, on account of the inadvertence, the

trial court on a subsequent date vide order dated 25.02.1994 had

permitted the appellant/defendant No.4 to file his written

statement. The said written statement was filed on record on

25.03.1994. However, the learned counsel for the respondent

No.1/plaintiff filed an application under Section 151 CPC on 09.05.1994 for taking the written statement of the

appellant/defendant No.4 off the record and during the

pendency of the said application, the appellant/defendant No.4

filed an application under Order 9 Rule 7 CPC on 01.09.1995

for setting aside the ex parte proceedings dated 22.04.1993.

The court later on allowed the application on 01.11.1999 and

the written statement of the appellant filed under mistaken court

order was ordered not to be read in the proceedings. Against

this order, the appellant did not file any appeal or revision. The

court framed issues on 10.02.2000 and the trial started.

8. The appellant failed to cross-examine the witnesses of the

respondent No.1/plaintiff and his right to cross-examination was

closed vide order dated 23.05.2001. The appellant challenged

the order before the High Court by filing a revision petition.

The High Court vide interim order dated 02.08.2001 allowed

the cross-examination of the witnesses of the respondent

No.1/plaintiff, but subjected him to certain conditions. These

conditions were not complied with by the appellant and finally

the revision petition was dismissed on 11.02.2002. Whereafter

also, the appellant or his counsel rarely appeared before the trial court which after recording the evidence of respondent No.1

and DDA, closed the evidence of the appellant on 13.12.2003.

The trial court thereafter decreed the suit vide impugned order

dated 30.08.2005 in favour of the respondent No.1/plaintiff and

against the appellant.

9. The question which is sought to be raised now is that since

there was a written statement on record filed by the appellant,

therefore, the appellant's plea in the written statement ought to

have been considered before the appeal was heard by the

learned ADJ.

10. It may be pertinent to mention here that even if this document

of the appellant is accepted, even then, it does not take the case

of the appellant any further. This is on account of the fact that a

fact must not only be pleaded but the party, but the party

concerned must also adduce evidence in support of his plea

after framing of issues. In the instant case, there is absolutely

no pleading on behalf of the appellant or the evidence produced

by the appellant. Therefore, the judgments of the both the trial

court and the first appellate court are totally against the present

appellant on account of these defects in his case. The plea of the appellant that since by mistake the written statement was

filed by him, therefore, the plea in the written statement ought

to have been taken on record, is not a question of law much less

a substantial question of law. These are all questions of fact

which have stood concluded right up to the High Court.

11. For the reasons mentioned above, I feel that the present appeal

does not involve any substantial question of law nor has the

appellant been able to make out one so that the matter could be

considered.

12. Since the present appeal does not involve any substantial

question of law, accordingly, the same is dismissed.

V.K. SHALI, J.

JANUARY 09, 2015 dm