Rajeshwar Kumar v. Jaina Properties (P) Ltd

RAJIV SAHAI ENDLAW, J. OCTOBER 12, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 12th October, 2018. + RSA 44/2017 & CM No.42663/2018 (for recalling of order dated 10th September, 2018) RAJESHWAR KUMAR ..... Appellant Through: Mr. Sanjay Agnihotri and Vikram Singh Yadav, Advs. Versus JAINA PROPERTIES (P) LTD ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 26th September, 2016 in RCA DJ/60759/2016 of the Court of Additional District Judge-09 (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 5th February, 2015 in Suit No.153/2013 of the Court of Civil Judge-04 (Central)] of dismissal of suit filed by the appellant/plaintiff for specific performance of the contract dated 22nd February, 1986 and to hand over shop bearing No.G-29, Ground Floor, measuring 60 sq. ft. situated at Rajendra Mahaveera Tower-II, 32-33, Community Center, A-Block, Pashchim Vihar, Delhi to the appellant/plaintiff and in the alternative for refund of Rs.54,200/- paid by the appellant/plaintiff to the respondent/defendant along with interest @ 18% per annum. 2. This appeal came up first before this Court on 6th February, 2017, when on request of the counsel for the appellant/plaintiff, it was renotified for 17th April, 2017. On 17th April, 2017, an adjournment was sought by the counsel for the appellant/plaintiff, and the appeal was listed on 17th July, 2017. Vide order dated 17th July, 2017, notice of the appeal was ordered to be issued, without recording any satisfaction that the appeal entailed any substantial question of law and without framing any substantial question of law and CM No.24801/2017 filed by the appellant/plaintiff for amendment of the memorandum of appeal was allowed. On 5th April, 2018, adjournment was sought by the counsel for the appellant/plaintiff, though the counsel for the respondent/defendant stated that he was ready for arguments. In these circumstances, on 10th September, 2018, when counsel for the appellant/plaintiff did not appear and some other counsel appeared and who refused to argue, that the appeal was dismissed for non-prosecution. 3. CM No.42663/2018 has been filed by the appellant/plaintiff for recall of the order dated 10th September, 2018 and for restoration of the appeal to its original position and the counsel for the appellant/plaintiff has been heard thereon. 4. Though the reasons given by the counsel for the appellant/plaintiff for non-appearance on 10th September, 2018 do not disclose any sufficient cause for restoration of the appeal and are not in consonance with what had happened on 10th September, 2018, as has been recorded in the order of the said date, but so as not to deprive the appellant/plaintiff, if has a genuine case, of an opportunity of being heard, the counsel for the appellant/plaintiff has been asked to satisfy this Court that the appeal does entail a substantial question of law and restoration thereof will serve any purpose. 5. The counsel for the appellant/plaintiff has been heard and the copies of the Trial Court record annexed to the memorandum of appeal perused. 6. Both the Courts i.e. the Suit Court and the First Appellate Court have held the suit, for the reliefs claimed, to be barred by time. The counsel for the appellant/plaintiff has also addressed on the said aspect only, though the Suit Court and the First Appellate Court have also decided other issues framed in the suit against the appellant/plaintiff. 7. As far as the aspect of limitation is concerned, the admitted position is that the appellant/plaintiff, on 22nd February, 1986 made an application to the respondent/defendant for "Registration of Licence of Shops/Offices and Basement Space in "Jaina's" Commercial Complex, Paschim Vihar, New Delhi" and was allotted shop No.G-29 having super area of 60 sq. ft. on the