Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.364/2014
th
Decided on : 20 January, 2015
RAM HIT @ RAM CHANDER ..... Appellant
Through: Mr.Akhilesh Singh, Adv.
versus
RAM HANS & ANR. ..... Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
CM No. 442/2015
1. Allowed subject to deficiency being rectified.
2. The application stands disposed of.
CM No. 441/2015
1. This is an application for restoration of the appeal which was
rd
dismissed in default on 3 December, 2014.
2. Appeal is restored to its original number as sufficient cause is
shown by learned counsel for the appellant for his non-appearance on
rd
3 December, 2014.
RSA No.364/2015
1. This is a regular second appeal filed against the order dated
22.10.2011 passed by the trial court.
2. I have heard the learned counsel for the appellant. The learned
counsel for the appellant has not been able to formulate any
substantial question of law arising from the appeal which may warrant
issuance of notice to the respondent and accordingly appeal is
dismissed, however, before dealing with the appeal it is pertinent here
to mention brief facts.
3. The appellant herein had filed a suit for possession against the
respondents alleging himself to the tenant in respect of one shop
bearing Property No. 6656, Nehru Gali, Gandhi Nagar, Delhi-31. It
was the case of the appellant that he was inducted as a tenant on a
monthly rent of Rs.210/- including electricity and water charges under
one Sh. Babu Ram, the deceased father of the respondent No.2. It is
his case that he was running a shop, however, he was dispossessed by
st
the respondents on 31 March, 1993. Accordingly he filed the present
suit. It was the appellant who had stated that the cause of action
st
accrued to him for the first time on 31 March, 1993.
4. The respondents filed their written statement. So far as
respondent No.1 is concerned, he contested the fact of the present
appellant was the tenant in respect of the shop in question. It was his
case that the appellant was a tenant in respect of one other shop in
property bearing No. 6656/3, Nehru Gali, Gandhi Nagar, Delhi on a
monthly rent of Rs. 400/- per month, however, it was denied that he
was dispossessed from the shop in question. The respondent No.2
admitted in his written statement that his father had inducted the
present appellant as a tenant but denied the dispossession. The
learned trial Court framed the following issues:-
“1.Whether the plaintiff is entitled for a decree for
possession as claimed in the prayer clause (a) of
the plaint? OPP
2. Whether the suit is under valued for the
purpose of court fees and jurisdiction? OPD
3. Whether the suit is maintainable as present?
OPD”.
And after examination of the witnesses of the parties the Court
held that the appellant was not the owner of the suit property and it
was not entitled to decree of possession.
5. Even with regard to proof of dispossession also the trial court
held that no proof of tenancy as proof was produced.
6. The aforesaid dismissal of the suit filed by the appellant was
nd
upheld by the First Appellate Court vide order dated 22 October,
2011.
7. The appellant by virtue of the Regular Second Appeal is raising
a question with regard to maintainability of the suit as well as the
factum that he was the tenant in respect of a suit premises and he was
not dispossessed. The question is as to whether the appellant was a
tenant or not is a question of fact which has been adjudicated upon by
the courts below and cannot gone into by his Court at the stage of
second appeal. Even otherwise I find that the suit of the appellant as
pleaded is barred by limitation. This is on account of the fact that the
appellant is claiming himself to be the owner of the suit property. His
suit for possession was premised on the ground that he was a tenant in
st
respect of the shop in question he was dispossessed on 31 March,
1993 while admittedly the suit has been filed in 2004.
8. If a suit for possession is filed which is not based on ownership
and simply on peaceful possession then suit has to be filed within a
period of six months from the date of dispossession in terms of
Section 6 of Specific Relief Act. While as admittedly in the instant
case, the suit has been filed on the basis of alleged dispossession and
that too after more than a period of six months. The explanation
which is sought to be given by the appellant for a belated filing is that
he was before the court for mandatory injunction which suit was
permitted to be withdrawn and with liberty to file a fresh suit and
accordingly the present suit was filed.
9. Even if assuming the stand of the present appellant to be correct
even then the suit of the appellant could not have been entertained as
it was not his case that he was prosecuting the wrong remedy or a
correct remedy in a wrong forum in other words it was never his case
that he was bonafidely prosecuting the case in a forum which could
not have given him the benefit and thus benefit under Section 14 of
the Limitation Act. This being state of affairs I feel the suit itself was
not entertainable and in any case the present appeal does not raise any
substantial question of law and accordingly the appeal is dismissed.
V.K. SHALI, J
JANUARY 20, 2015/ nk
+ RSA No.364/2014
th
Decided on : 20 January, 2015
RAM HIT @ RAM CHANDER ..... Appellant
Through: Mr.Akhilesh Singh, Adv.
versus
RAM HANS & ANR. ..... Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
CM No. 442/2015
1. Allowed subject to deficiency being rectified.
2. The application stands disposed of.
CM No. 441/2015
1. This is an application for restoration of the appeal which was
rd
dismissed in default on 3 December, 2014.
2. Appeal is restored to its original number as sufficient cause is
shown by learned counsel for the appellant for his non-appearance on
rd
3 December, 2014.
RSA No.364/2015
1. This is a regular second appeal filed against the order dated
22.10.2011 passed by the trial court.
2. I have heard the learned counsel for the appellant. The learned
counsel for the appellant has not been able to formulate any
substantial question of law arising from the appeal which may warrant
issuance of notice to the respondent and accordingly appeal is
dismissed, however, before dealing with the appeal it is pertinent here
to mention brief facts.
3. The appellant herein had filed a suit for possession against the
respondents alleging himself to the tenant in respect of one shop
bearing Property No. 6656, Nehru Gali, Gandhi Nagar, Delhi-31. It
was the case of the appellant that he was inducted as a tenant on a
monthly rent of Rs.210/- including electricity and water charges under
one Sh. Babu Ram, the deceased father of the respondent No.2. It is
his case that he was running a shop, however, he was dispossessed by
st
the respondents on 31 March, 1993. Accordingly he filed the present
suit. It was the appellant who had stated that the cause of action
st
accrued to him for the first time on 31 March, 1993.
4. The respondents filed their written statement. So far as
respondent No.1 is concerned, he contested the fact of the present
appellant was the tenant in respect of the shop in question. It was his
case that the appellant was a tenant in respect of one other shop in
property bearing No. 6656/3, Nehru Gali, Gandhi Nagar, Delhi on a
monthly rent of Rs. 400/- per month, however, it was denied that he
was dispossessed from the shop in question. The respondent No.2
admitted in his written statement that his father had inducted the
present appellant as a tenant but denied the dispossession. The
learned trial Court framed the following issues:-
“1.Whether the plaintiff is entitled for a decree for
possession as claimed in the prayer clause (a) of
the plaint? OPP
2. Whether the suit is under valued for the
purpose of court fees and jurisdiction? OPD
3. Whether the suit is maintainable as present?
OPD”.
And after examination of the witnesses of the parties the Court
held that the appellant was not the owner of the suit property and it
was not entitled to decree of possession.
5. Even with regard to proof of dispossession also the trial court
held that no proof of tenancy as proof was produced.
6. The aforesaid dismissal of the suit filed by the appellant was
nd
upheld by the First Appellate Court vide order dated 22 October,
2011.
7. The appellant by virtue of the Regular Second Appeal is raising
a question with regard to maintainability of the suit as well as the
factum that he was the tenant in respect of a suit premises and he was
not dispossessed. The question is as to whether the appellant was a
tenant or not is a question of fact which has been adjudicated upon by
the courts below and cannot gone into by his Court at the stage of
second appeal. Even otherwise I find that the suit of the appellant as
pleaded is barred by limitation. This is on account of the fact that the
appellant is claiming himself to be the owner of the suit property. His
suit for possession was premised on the ground that he was a tenant in
st
respect of the shop in question he was dispossessed on 31 March,
1993 while admittedly the suit has been filed in 2004.
8. If a suit for possession is filed which is not based on ownership
and simply on peaceful possession then suit has to be filed within a
period of six months from the date of dispossession in terms of
Section 6 of Specific Relief Act. While as admittedly in the instant
case, the suit has been filed on the basis of alleged dispossession and
that too after more than a period of six months. The explanation
which is sought to be given by the appellant for a belated filing is that
he was before the court for mandatory injunction which suit was
permitted to be withdrawn and with liberty to file a fresh suit and
accordingly the present suit was filed.
9. Even if assuming the stand of the present appellant to be correct
even then the suit of the appellant could not have been entertained as
it was not his case that he was prosecuting the wrong remedy or a
correct remedy in a wrong forum in other words it was never his case
that he was bonafidely prosecuting the case in a forum which could
not have given him the benefit and thus benefit under Section 14 of
the Limitation Act. This being state of affairs I feel the suit itself was
not entertainable and in any case the present appeal does not raise any
substantial question of law and accordingly the appeal is dismissed.
V.K. SHALI, J
JANUARY 20, 2015/ nk