Delhi High Court
Kadam Singh vs Tulsi & Ors on 4 December, 2017
$~12
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th December, 2017
+ CM(M) 1230/2016 and CM Nos.44294-44295/2016
KADAM SINGH ..... Petitioner
Through: Mr. R.N. Dubey, Advocate
versus
TULSI & ORS ..... Respondents
Through: Mr. Anuroop P.S., Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The petitioner had instituted a civil suit (CS No.118/11/1999)
on 16.06.1999 against the respondents herein seeking relief of
permanent injunction. The suit was contested and the parties went to
trial on the basis of issues framed, that were settled on 18.08.2000.
The respondents (defendants) had set up a Will purportedly executed
by Mam Raj, the predecessor-in-interest of the parties, the validity
and legality whereof was the subject matter of the second issue. The
Civil Judge, by judgment dated 23.09.2013, disposed of the said suit
observing that the issue regarding validity of the Will could not be
"re-agitated" in such proceedings. It has been, however, clarified by
the counsel representing both sides that the validity of the said Will
was not subject matter of any previous litigation in civil court, except
some proceedings before the Sub Divisional Magistrate.
2. Be that as it may, the trial court partly decreed the suit granting
permanent injunction in favour of the petitioner (plaintiff) restraining
the defendants from selling, alienating, parting with possession,
creating third party interest or encumbrances or causing interference
in the peaceful enjoyment of the suit premises by the plaintiff in a
part of the suit property "without the due process of law".
3. The plaintiff, (i.e. petitioner) took out first appeal (RCA
No.03/2014) against the said judgment and decree, his basic
grievance being against non-inclusion of some part of the suit
property in the relief that was granted. During the course of hearing
on the said first appeal, the question of need for decision on the
second issue came up. The first appellate court was of the view that a
decision on the said issue was necessary. It is on such ground that
that it allowed the appeal by judgment dated 07.04.2014 and
remanded the case to the trial court with direction that the second
issue concerning the validity of Will also be decided.
4. Upon remand, the Civil Judge, by his order dated 24.12.2014
rendered a decision on the said issue deciding it in favour of the
defendants and against the plaintiff. The order dated 24.12.2014 of
the civil Judge was sought to be challenged by the petitioner by
appeal (RCA No.03/2015) belatedly and, therefore, with an
application seeking condonation of delay under Section 5 of the
Limitation Act.
5. The first appellate court, by its order dated 14.05.2016,
however, was not satisfied with the reasons set out for the delay in
filing of the appeal and dismissed the application seeking
condonation and consequently threw the appeal out. It is the said
order which is challenged by the petition at hand.
6. The question of delay in filing the appeal before the court of
Senior Civil Judge against the order dated 24.12.2014 apart, a
fundamental defect in the approach of the civil Judge in rendering the
order dated 24.12.2014, has come to notice of the court. After the
remand by the Senior Civil Judge by order dated 07.04.2014, the civil
suit required to be decided afresh. The task of the civil Judge was not
complete only by taking a decision on the second issue. He was
expected to pass a fresh judgment deciding the suit. This not having
been done, the matter will have to be remanded back to the trial court
for appropriate further proceedings in accordance with law. Ordered
accordingly.
7. In the result, the civil suit would stand revived on the file of the
Civil Judge who will pass a judgment as per law. The evidence
having already been led by both sides, as fairly conceded, the Trial
Judge is now required only to hear the parties and render its decision.
The Civil Judge is, requested to pass the fresh judgment as
expeditiously as possible preferably within three months of the date
next hereby fixed. The parties are directed to appear before the Civil
Judge on 08.02.2018.
8. The petition along with pending applications stand disposed of
in above terms.
9. Dasti.
R.K.GAUBA, J.
DECEMBER 04, 2017
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