Rajinder Kaur @ Rani vs Ajay Kumar Sinha
2016 Latest Caselaw 2079 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 16th March, 2016

+      RFA 37/2013 & CMs No.6855/2015 (for waiver of costs imposed
       on 27th August, 2014), 869/2013 (for stay) & 871/2013 (for
       condonation of 69 days delay in re-filing)

       RAJINDER KAUR @ RANI                   ..... Appellant
                   Through: Mr. Ranjeet Singh Cheema, Adv.

                                   Versus

    AJAY KUMAR SINHA                         ..... Respondent

Through: Mr. Dilip Singh, Adv.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The appeal impugns the judgment and decree dated 31st August, 2012

of the Court of Additional District Judge (ADJ), (Central)-17, Delhi in suit

No.235/2008 bearing Unique Case ID No.02401C0952422008.

2. The appeal accompanied with an application for condonation of 69

days delay in re-filing came up first before this Court on 16 th January, 2013

when the notice of the application was issued. Though the counsel for the

respondent appeared on 26th February, 2013 but the appeal was dismissed in

default of appearance of the appellant on 19th March, 2013. Applications for

restoration and for condonation of delay in applying for restoration were

filed and in which again adjournment was sought on behalf of the appellant

from time to time and ultimately the appeal was restored to its original

position on 27th August, 2014. Thereafter, the counsel for the appellant again

started taking adjournments and the appeal so remained pending till 12 th

January, 2016 when again adjournment was sought on behalf of the counsel

for the appellant. The matter was adjourned to today by way of last

opportunity.

3. Today, though the counsel for the appellant has appeared and argued

the matter but without even having the complete trial court record and

without reference to any evidence.

4. The delay of 69 days in re-filing the appeal is condoned and the appeal

has been considered on its merits by perusing the trial court record.

5. The suit from which this appeal arises was filed by the respondent /

plaintiff, besides against the appellant (who was defendant no.2) also against

Smt. Sindhu Mishra (who was defendant no.1) for the reliefs of recovery of

possession, permanent injunction and mesne profits / damages for use and

occupation pleading i) that the respondent / plaintiff had purchased the

property bearing No.B-127, area measuring 25 sq. yds. situated at

Jahangirpuri, Delhi comprising of two floors from one Sh. Sumit Goel vide

sale deed dated 8th June, 2006; ii) that the said property was originally

allotted to one Sh. Tilak Raj on 4th November, 1996 and had been transferred

successively to Smt. Gyan Kaur, Sh. Ram Lubhaya Kundra, Smt. Kakoo

Devi and Sh. Sumit Goel from whom the respondent / plaintiff acquired the

property; iii) that Smt. Kakoo Devi had inducted the appellant and the

aforesaid Smt. Sindhu Mishra as tenants on the ground floor and first floor

of the property and the appellant and the said Smt. Sindhu Mishra were

paying rent to Smt. Kakoo Devi but subsequently had stopped paying the

rent; iv) that the appellant had started claiming to have acquired the property

from Smt. Kakoo Devi.

6. On enquiry, the counsel for the appellant states that Smt. Sindhu

Mishra was in possession of the ground floor and the appellant was in

possession of the first floor of the property.

7. Smt. Sindhu Mishra contested the suit aforesaid claiming to be a

tenant protected under the Delhi Rent Control Act, 1958 and contending the

suit to be not maintainable.

8. The appellant contested the suit claiming that though she was initially

inducted into the property as a tenant by Smt. Kakoo Devi but Smt. Kakoo

Devi had subsequently sold the property to her.

9. The learned ADJ on the pleadings of the parties, on 16th July, 2009

framed the following issues in the suit:

"1. Whether the suit is not maintainable in the present form? OPD2

2. Whether the suit is hit by the provisions of Section 41(i)(h) of the Specific Relief Act? OPD2

3. Whether the suit of the Plaintiff is bad for non-joinder of necessary parties? OPD2

4. Whether the suit is barred by Section 50 of Delhi Rent Control Act? OPD2

5. Whether the Plaintiff is entitled to a decree of possession of the suit property as prayed? OPP

6. Whether the Plaintiff is entitled to a decree of permanent injunction in respect of suit property? OPP

7. Whether the Plaintiff is entitled to damages for unauthorized use and occupation of the suit property? OPP

8. Relief."

10. On the basis of the evidence led by the parties, the learned Additional

District Judge has i) decided the Issue no.1 in favour of the respondent /

plaintiff and against the appellant / defendant no.2 on the ground that the

appellant / defendant no.2 had not substantiated the plea; ii) decided the

Issue no.2 in favour of the respondent / plaintiff and against the appellant /

defendant no.2 on the ground again that the appellant / defendant no.2 had

failed to explain as to how the suit is barred by Section 41(i)(h) of the

Specific Relief Act; iii) decided the Issue no.3 in favour of the respondent /

plaintiff and against the appellant / defendant no.2 on the ground that the

appellant / defendant no.2 had failed to disclose as to how Smt. Kakoo Devi

was a necessary party and had not been impleaded; iv) held that the Issue

no.4 was in fact on the plea of the defendant no.1 Smt. Sindhu Mishra and

the onus thereof has been wrongly placed on the appellant / defendant no.2

and decided the said issue in favour of the defendant no.1 Smt. Sindhu

Mishra and against the respondent / plaintiff; v) decided the Issue No.5 in

favour of the respondent / plaintiff and against the appellant / defendant no.2

holding a) that though the respondent / plaintiff claimed having acquired the

property by way of Agreement to Sell, registered Power of Attorney, Will

etc. from Smt. Kakoo Devi but the appellant / defendant no.2 had failed to

produce any documents whatsoever by which she claimed to have purchased

the property from Smt. Kakoo Devi; b) that there was inconsistency in the

version of the appellant / defendant no.2 of the date of purchase of the

property - while in her written statement, she claimed to have purchased the

property from Smt. Kakoo Devi on 18th January, 1999, in the cross

examination of the respondent / plaintiff the suggestion of the counsel for the

appellant / defendant no.2 was that the appellant / defendant no.2 had

purchased the property on 23rd March, 1995; c) that though the respondent /

plaintiff in support of his claim of having purchased the property had

examined Smt. Kakoo Devi as PW3, the appellant / defendant no.2 failed to

carry out any cross examination despite opportunity of Smt. Kakoo Devi;

and d) that though the respondent / plaintiff also had proved only agreement

to sell, possession letter, Power of Attorney, Will etc. in his favour which did

not confer title, but the property throughout was being transacted on the basis

of said documents only and since the appellant / defendant no.2 admitted to

have been inducted into possession by Smt. Kakoo Devi, absence of title was

no impediment to grant the relief in favour of the respondent / plaintiff; vi)

decided the Issues nos.6&7 against the respondent / plaintiff.

Accordingly, though the suit against the defendant no.1 Smt. Sindhu

Mishra was dismissed, the suit insofar as against the appellant / defendant

no.2 was decreed for possession and for mesne profits at Rs.400/- from the

date of filing of the suit till dispossession.

11. Since there was no stay till now of execution, it was noted on the last

date that the respondent / plaintiff has already recovered possession of the

property from the appellant in execution of the impugned judgment and

decree.

12. The only argument of the counsel for the appellant is that the appellant

was represented by an inefficient advocate before the Trial Court who did

not take appropriate steps to prove the case of the appellant. It is stated that

the documents of purchase of property in favour of the appellant were filed

by the appellant in the suit for injunction filed by appellant against Smt.

Kakoo Devi and thus could not be proved. Attention in this regard is invited

to pages 69 to 76 of the paper book being copy of an application filed by the

appellant in the Court before which the appellant claims to have filed the

documents of purchase in her favour and the order thereon.

13. A perusal thereof shows that the appellant applied to that Court in or

about March, 2009 for obtaining the goshwara number of that file but the

same was not given to the appellant till 6 th July, 2010. However the counsel

for the appellant is unable to state the ultimate fate of that application.

14. I have in this regard perused the Trial Court record of the present

appeal requisitioned in this Court and do not find the appellant / defendant

no.2 to have taken any steps either for summoning the record of the suit in

which the documents for purchase by the appellant / defendant no.2 are

stated to have been filed. Rather, a perusal of the order sheet of the Trial

Court record shows that the suit was first listed for the evidence of the

appellant / defendant no.2 on 13th April, 2011 when adjournment was sought

on behalf of the appellant / defendant no.2; thereafter again on 9th June, 2011

adjournment was sought on behalf of the appellant / defendant no.2; on the

next date i.e. 14th September, 2011 though the appellant / defendant no.2

filed her affidavit by way of examination-in-chief but the same was found to

be defective and rejected and another opportunity granted; again on 16th

December, 2011 and 24th January, 2012 adjournments were sought by the

counsel for the appellant / defendant no.2 to file a fresh affidavit; ultimately,

on 12th April, 2012 the appellant / defendant no.2 filed her affidavit by way

of examination-in-chief and was cross examined and since she had not

summoned any other witness, her evidence was closed and the matter posted

for final arguments.

15. The counsel for the appellant is unable to tell whether the appellant

had filed any list of witnesses or not.

16. The appellant however is not found to have thereafter filed any

application for examining any further witnesses though the suit was

adjourned on her request for arguments.

17. It is thus evident from the record that the appellant at least insofar as

the suit from which this appeal arises is concerned, did not even whisper of

any documents relating to purchase of subject property having been filed by

her in any other suit or being not made available to her. I may record that

even if the appellant was having difficulty in retrieving the originals of the

document from the suit in which they were filed, had the appellant

summoned that record during her evidence in the suit from which this appeal

arises, the Court of learned ADJ would have been put to enquiry and would

have accordingly summoned the record.

18. I will be failing in my duty if do not mention that on the same

contention of the appellant on an earlier date, file of suit No.126/1999 titled

Rajinder Kaur Vs. Kako Bai of the Court of Sh. Rajesh Kumar Singh, Civil

Judge, Delhi, decided on 24th November, 1998 was requisitioned in this

Court and has been received and which suit is found to have been dismissed

disbelieving the plea of the appellant to have become the owner of the

property.

19. It is also worth recording that though the counsel for the appellant has

called the counsel appearing for the appellant before the Trial Court to be

inefficient, but the appeal is not accompanied with any application under

Order XLI Rule 27 of the Code of Civil Procedure, 1908 for leading any

additional evidence.

20. In view of the aforesaid scenario, on merits also, the appellant is not

found to have any case.

21. The appeal is accordingly dismissed.

No costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

MARCH 16, 2016 „gsr‟