Naseema Begum vs Mohd. Javed & Ors.
2017 Latest Caselaw 3639 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.189/2017

%                                                     26th July, 2017

NASEEMA BEGUM                                           ..... Appellant
                          Through:       Mr. Brahm S.Nagar, Advocate.
                          versus

MOHD. JAVED & ORS.                                     ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.26086/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RSA No.189/2017

2. This Regular Second Appeal under Section 100 of Code

of Civil Procedure, 1908 (CPC) is filed by the defendant no. 2 in the

suit challenging the judgment of the first appellate court dated

27.2.2017 by which the first appellate court dismissed the first appeal

filed by the appellant/defendant no.2 against the judgment of the Trial

Court dated 26.10.2012. Trial court by its judgment dated 26.10.2012

had dismissed the suit for declaration and mandatory injunction filed

by the respondent nos.1 to 5/plaintiffs and one Smt. Zubeda Begum

(since deceased). The appellant/defendant no.2 filed the appeal against

certain findings of the trial court in its judgment dated 26.10.2012,

although the suit was dismissed.

3. It has been held by the Supreme Court in the case of

Deva Ram and Another Vs. Ishwar Chand and Another (1995) 6

SCC 733 that if a suit is dismissed, then, against findings on certain

issues against a defendant, the defendant cannot file a first appeal.

The relevant observations of the Supreme Court in the case of Deva

Ram (supra) are contained in para 27 and which holds that an appeal

does not lie against a mere finding recorded by a court unless the

finding amounts to a decree or an order. It is held in para 27 of the

judgment in the case of Deva Ram (supra) that where a suit is

dismissed, the defendant against whom adverse findings have been

recorded on some issues, has no right of appeal against mere findings

and he cannot question such findings before the appellate court.

4. Clearly therefore the first appeal filed by the

appellant/defendant no.2 against some findings on some issues against

the appellant/defendant no.2 was not maintainable inasmuch as the

suit of the respondent nos.1 to 5/plaintiffs was dismissed. Since the

first appeal was not maintainable in view of the judgment in the case

of Deva Ram (supra) even this second appeal does not lie and is

therefore dismissed accordingly.

JULY 26, 2017                                    VALMIKI J. MEHTA, J
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