Delhi High Court
Eatasamuddin Ahmed Qureshi vs Syed Irshad Ali Wasti & Anr on 23 September, 2015
Author: Rajiv Shakdher
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 621/2015
EATASAMUDDIN AHMED QURESHI ..... Appellant
Through: Mr. Narender Singh and Mr. Sanjay Jha,
Advocates
versus
SYED IRSHAD ALI WASTI & ANR ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 23.09.2015
CM No.20599/2015 (Exemption)
1. Allowed subject to just exceptions.
RFA 621/2015 and CM No.20600/2015 (condonation of day of 18
days in re-filing the appeal)
1. This is an appeal preferred against the judgment and decree
dated 30.03.2015, passed by the learned ADJ (Central), Delhi.
2. Briefly, the facts of the case are as follows :-
2.1 The plaintiff filed a suit for recovery of a sum of Rs.3 Lakh
alongwith gold ornaments, which were valued at Rs.1 Lakh against the
respondents/defendants. In the suit, interest was also sought.
2.2 Respondent no.1 and 2 herein are the brother-in-law and the
niece of the deceased wife of the appellant.
2.3 The appellant and his wife had a strained marital relationship.
The wife of the appellant, who was known as Ms. Sayyeda Noor
Jahan, was suffering from heart disease and was diabetic for almost 10
years prior to her death. The fact that the appellant's wife was a heart
patient is not in dispute.
2.4 It is, in fact, because of Ms. Sayyeda Noor Jahan's heart
condition that, according to the appellant, she had shifted to the house
of respondent no.1. The appellant's case is that since respondent no.1
had his residence on the ground floor, his wife shifted to respondent
no.1's house.
2.5 The appellant also set up a case that on 19.05.2007, his wife had
carried two bags comprising of clothes and jewellery with gold
ornaments, such as, one set of gold bangles, weighing 24 grams; one
pair of ear ring, weighing around 5 grams; two finger rings, weighing
around 10 grams; and one complete set weighing, approximately,
around 60 grams, to respondent no.1's house.
2.6 According to the appellant, this visit was made by his wife as
she was to attend a wedding of her nephew. However, the appellant's
wife suffered a heart attack on 23.05.2007, on account of which she
died on the same day.
2.7 The appellant claims that his wife had withdrawn a sum of Rs.1
Lakh, on 12.02.2007, and another sum amounting to Rs.2 Lakh, on
19.02.2007, albeit via self cheques.
2.8 The trial court has, however, disbelieved the case of the
appellant on both counts. In this behalf, the trial court has returned the
following findings of facts, amongst others :-
(i). First, that there is no evidence produced by the appellant to the
effect that his wife had left the house on 19.05.2007 with two bags, as
alleged, with jewellery contained therein.
(ii). No evidence was placed on record by the appellant that the
jewellery said to be in possession of his wife was procured by him or
by his wife, and that, she was in possession of the said jewellery on the
given date.
(iii). In so far as the withdrawal of amounts on 12.02.2007 and
19.02.2007 are concerned, the only document that the appellant has
placed on record were blank photocopies of the bank passbook (Mark
A). However, the original bank passbook was not placed on record.
(iv). In his testimony, the appellant has accepted the fact that the
original bank passbook including other documents of the deceased
were in his possession.
(v). The appellant did not summon any bank official to prove that the
aforementioned amount was withdrawn from the account of the
deceased.
2.8 Based on the aforesaid findings, the trial court dismissed the
suit.
3. Mr. Singh, who appears for the appellant says that when an
Indian lady attends a wedding, there is an "assumption" that she
normally would carry her jewellery items. The learned counsel for the
appellant apart from this broad, unsubstantiated, submission has not
been able to draw my attention to any material which would establish
that the findings returned by the trial court were erroneous. As a
matter of fact, the learned counsel for the appellant sought to rely on
the cross-examination of respondent no.1 which reads as under :-
"..It is correct that I am doing nothing nor I am running any
shop at Meena Bazar. It is correct that in the month of May,
2007, wife of the plaintiff joined me as she had to attend a
marriage at Budni, Bhopal on 28.05.2007. It is correct that
she came to my house on 19.05.2007 but I cannot say what
luggage was there with her. I cannot say that she brought
two suitcases of clothes and ornaments. It is also correct that
she died due to heart attack on 23.05.2007. I have not
informed the plaintiff with regard to the death of his wife.
The plaintiff was present at the last ceremony. I have not
returned any luggage of the deceased wife of the plaintiff as
she has not brought any luggage with her. It is wrong to
suggest that the plaintiff asked me for return of luggage of
the deceased wife of the plaintiff. I do not know in whose
possession the luggage of the deceased wife of the plaintiff.
I cannot say whether Ghazala Jabin has ever received any
notice issued on behalf of the plaintiff. It is correct that the
plaintiff used to get treat his wife through doctors. The
deceased wife of the plaintiff was living with me about one
and half year before her death. I do not remember the date
since when the deceased wife of the plaintiff came to my
house. I cannot say that she came to my house on
07.12.2006 and remained there till 20.04.2007..."
(emphasis is mine)
3.1 Based on the said testimony, it is argued by the counsel for the
appellant that respondent no.1 has accepted that he did not return the
luggage of the deceased. According to me, the learned counsel for the
appellant has misread the testimony of respondent no.1. Respondent
no.1 has clearly stated that he did not return any luggage of the
appellant's wife as she had not brought any luggage with her.
4. Having regard to the aforesaid, I find no merit in the appeal.
The appeal and the pending application are accordingly, dismissed.
RAJIV SHAKDHER, J
SEPTEMBER 23, 2015
yg
