Delhi High Court
Sh. Bhagat Ram And Anr. vs Sh.Gulfam Gazi on 31 January, 2017
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: January 31, 2017
+ RSA 39/2017
SH. BHAGAT RAM AND ANR. ..... Appellants
Through: Ms.Sapna Malik & Ms.Manjunatha
H T, Advocates
versus
SH.GULFAM GAZI ..... Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT (Oral)
CM No.3854/2017
1. For the reasons stated in the application, the delay of 16 days in filing
of the appeal is condoned.
2. The application stands disposed of.
CM No.3852-53/2017
1. Exemption allowed, subject to all just exceptions.
2. The applications stand disposed of.
RSA 39/2017
1. This Regular Second appeal under Section 100 of CPC has been filed
impugning the judgment of the First Appellate Court dated 9th September,
2016.
2. The order dated 9th September, 2016 by the learned Appellate Court
has been passed after recording the statement of the counsel for the appellant
herein (respondent in RCA No.67/2016) and of the appellant in the first
appeal, and reads as under:-
7"Vakalatnama on behalf of respondents filed.
Arguments heard for about 1.45 hours before and after
lunch. This is an appeal against the judgment and decree
passed in a suit for permanent injunction filed by the
appellant/plaintiff in which the counterclaim of the
defendants/respondents was rejected.
The defendants/respondents have not filed any separate
appeal or any cross objections against the dismissal of their
counter claim. After going through the evidence of the
defendant no.1 recorded in the Trial Court, it is now confirmed
that he is in possession of only one shop in property No. B-74,
New Seelampur Market, Delhi and rest of the portion of this
property is with the plaintiff. The shop in possession of the
defendants is shown at point B in the site plan Ex.P20 lying on
the Trial Court record. The Khoka which is marked at Point A
now does not exists.
It is a simple suit of injunction in which no relief of
declaration of ownership was claimed by the plaintiff nor it
could have been granted. A query was put to the counsel for the
defendants whether his clients can give the statements not to
dispossess the plaintiff from the portion in his possession
without due process of law and without prejudice to their rights
and contentions, then it is stated that they can do so. Counsel
took instructions from his clients and then gave statement
accordingly. In view of the statement given by counsel for the
defendants/respondents, the appellant/plaintiff has also given
statement for withdrawl of the appeal and for disposal of the
suit. The statements have been given by the parties without
prejudice to their rights, contentions and claims. The
respondent no. 1 has countersigned the statement given by his
counsel.
In view of the statement given by both the parties, the
present appeal is dismissed as withdrawn. The judgment and
decree dated 01.06.2016 is set aside. The suit filed in the Ld.
Trial Court is ordered to be disposed off in terms of the
statements given and respondents/ defendants are directed to
abide by the undertaking given on their behalf by their
counsels. The original documents of the parties be returned
to them as per rules. Parties are directed to bear their own
costs in respect of Trial Court suit and this appeal. Trial Court
record alongwith copy of the order be sent back. Decree be
prepared accordingly and file be consigned to record room.
Addl.Distt Judge(NE)-01
09.09.2016"
3. In the instant case on the basis of joint statement made by counsel for
the appellant and by the respondent himself the appeal bearing RCA
No.67/16 has been dismissed as withdrawn with direction to the parties to
appear before the learned Trial Court so that the Civil Suit No. 579/02 for a
decree of permanent injunction could be disposed of in terms of the joint
statement made by the parties.
4. Once the appeal has been disposed of as withdrawn, the impugned
order does not give rise to any substantial question of law so as to entertain
this appeal. Even otherwise in the suit seeking permanent injunction the
statement made by the counsel for the appellants (respondents in RCA
No.67) was to the effect that respondent/plaintiff would not be dispossessed
without due process of law.
5. The appellants cannot claim that they have a right to take law in their
own hands and forcibly dispossess Gulfam Gazi, who is respondent in this
second appeal.
6. Section 100 of Code of Civil Procedure, 1908 prescribes for a second
appeal only on the substantial question of law. Today when this Regular
Second Appeal is listed, at admission stage, enough time has been given to
the learned counsel for the appellant to satisfy the Court as to how in a case
wherein on the basis of joint statement made by the parties the first appeal
has been disposed of as withdrawn and learned Trial Court was directed to
dispose of the suit in terms of the joint statement made before the Appellate
Court, a substantial question of law is involved. No satisfactory answer
could be given by learned counsel for the appellants except submitting that
previous counsel has played fraud. The statement made before the First
Appellate Court does not indicate any fraud and substantial rights of the
parties are not affected if a matter is being disposed of by directing that the
respondent herein should not be dispossessed except with due process of
law.
7. Since no substantial question of law is involved in this case, the appeal
is dismissed.
CM No.3851/2017
Dismissed as infructuous.
PRATIBHA RANI
(JUDGE)
JANUARY 31, 2017
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