Bhagat Singh & Anr v. Paltu Ram & Ors

RAJIV SAHAI ENDLAW, J. JULY 16, 2018 'gsr'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th July, 2018 + RSA 51/2018 BHAGAT SINGH & ANR ..... Appellants Through: Mr. Ashok Tobria & Mr. M.Y. Yadav, Advs. Versus PALTU RAM & ORS ..... Respondents Through: Mr. K. Venkatraman & Mr. Dinesh Chawla, Advs. for R-1. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.15318/2018 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. RSA 51/2018, CM No.14261/2018 (for early hearing) & CM No.15317/2018 (for stay) 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 31st January, 2018 in RCA No.65/2017 (CNR No.DLST01-006314-2017) of the Court of Additional District Judge (ADJ), District South, Saket Courts, New Delhi] of dismissal of First Appeal under Section 96 of the CPC preferred by the two appellants against the judgment and decree [dated 6th July, 2017 in CS No.84545/2016 of the Court of the Civil Judge-02, South District, Saket Courts, New Delhi] allowing the suit filed by the respondent no.1 / plaintiff inter alia for mandatory injunction directing the two appellants / defendants as well as respondents no.2 and 3 / defendants to remove their belongings RSA 51/2018 from property No.93 Hauz Rani, Malviya Nagar, New Delhi and to vacate and handover physical possession thereof to the respondent no.1 / plaintiff and to also pay mesne profits to the respondent no.1 / plaintiff from 1st September, 2013 till the date of vacation at the rate of Rs.15,000/- per month. 4. This appeal came up first before this Court on 4th April, 2018, when on request of the counsel for the appellant, it was adjourned to 16th April, 2018. On 16th April, 2018, the counsel for the appellant sought time to obtain instructions and to locate the application for stay of the judgment and decree which was claimed to have been filed and the matter was renotified for 19th April, 2018. On 19th April, 2018, though notice of the appeal was ordered to be issued but without recording or indicating as to what substantial question of law arises; execution was also stayed vide the same order. 5. All the three respondents are reported to be served. 6. Only the counsel for the respondent no.1 / plaintiff appears. None appears for respondents no.2 to 3 / defendants. 7. The counsel for the respondent no.1 / plaintiff, on enquiry states that the respondents no.2 and 3 / defendants did not file any First Appeal against the judgment and decree insofar as against them. 8. The counsel for the appellants argues, (i) that the appellant no.1 is the son and the appellant no.2 is the daughter-in-law of the respondent no.1/plaintiff; (ii) that the property is ancestral property and the appellants have been residing therein; (iii) that the Courts below have decided in favour of the respondent no.1 / plaintiff only for the reason of the appellant no.1 / defendant in his cross-examination having deposed that he was residing in the property with the permission of his father respondent no.1/plaintiff; (iv) however the aforesaid answer in cross-examination was owing to the manner in which the question was put during cross-examination; else, the property is ancestral; and, (v) that there is on record a house tax receipt with respect to the property in the name of the father of the respondent no.1/plaintiff and which proves that the property is ancestral. 9. No other argument has been urged. 10. After arguing so, the counsel for the appellants seeks adjournment stating that the adjournment is required for preparing the matter. 11. There is no reason as to why the counsel did not come prepared for today. 12. Advocates, after obtaining interim order, cannot be permitted to prolong the proceedings. 13. Though the Suit Court file has not been requisitioned but the appellants along with this appeal have filed copies of some part of the record and the counsel for the respondent no.1 / plaintiff has handed over the copies