Rajinder Kaur @ Rani v. Ajay Kumar Sinha

RAJIV SAHAI ENDLAW, J. MARCH 16, 2016 "gsr"

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th March, 2016 + RFA 37/2013 & CMs No.6855/2015 (for waiver of costs imposed on 27th August, 2014), 869/2013 (for stay) & 871/2013 (for condonation of 69 days delay in re-filing) RAJINDER KAUR @ RANI ..... Appellant Through: Mr. Ranjeet Singh Cheema, Adv. Versus AJAY KUMAR SINHA ..... Respondent Through: Mr. Dilip Singh, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns the judgment and decree dated 31st August, 2012 of the Court of Additional District Judge (ADJ), (Central)-17, Delhi in suit No.235/2008 bearing Unique Case ID No.02401C0952422008. 2. The appeal accompanied with an application for condonation of 69 days delay in re-filing came up first before this Court on 16th January, 2013 when the notice of the application was issued. Though the counsel for the respondent appeared on 26th February, 2013 but the appeal was dismissed in default of appearance of the appellant on 19th March, 2013. Applications for restoration and for condonation of delay in applying for restoration were filed and in which again adjournment was sought on behalf of the appellant from time to time and ultimately the appeal was restored to its original position on 27th August, 2014. Thereafter, the counsel for the appellant again started taking adjournments and the appeal so remained pending till 12th January, 2016 when again adjournment was sought on behalf of the counsel for the appellant. The matter was adjourned to today by way of last opportunity. 3. Today, though the counsel for the appellant has appeared and argued the matter but without even having the complete trial court record and without reference to any evidence. 4. The delay of 69 days in re-filing the appeal is condoned and the appeal has been considered on its merits by perusing the trial court record. 5. The suit from which this appeal arises was filed by the respondent / plaintiff, besides against the appellant (who was defendant no.2) also against Smt. Sindhu Mishra (who was defendant no.1) for the reliefs of recovery of possession, permanent injunction and mesne profits / damages for use and occupation pleading i) that the respondent / plaintiff had purchased the property bearing No.B-127, area measuring 25 sq. yds. situated at Jahangirpuri, Delhi comprising of two floors from one Sh. Sumit Goel vide sale deed dated 8th June, 2006; ii) that the said property was originally allotted to one Sh. Tilak Raj on 4th November, 1996 and had been transferred successively to Smt. Gyan Kaur, Sh. Ram Lubhaya Kundra, Smt. Kakoo Devi and Sh. Sumit Goel from whom the respondent / plaintiff acquired the property; iii) that Smt. Kakoo Devi had inducted the appellant and the aforesaid Smt. Sindhu Mishra as tenants on the ground floor and first floor of the property and the appellant and the said Smt. Sindhu Mishra were paying rent to Smt. Kakoo Devi but subsequently had stopped paying the rent; iv) that the appellant had started claiming to have acquired the property from Smt. Kakoo Devi. 6. On enquiry, the counsel for the appellant states that Smt. Sindhu Mishra was in possession of the ground floor and the appellant was in possession of the first floor of the property. 7. Smt. Sindhu Mishra contested the suit aforesaid claiming to be a tenant protected under the Delhi Rent Control Act, 1958 and contending the suit to be not maintainable. 8. The appellant contested the suit claiming that though she was initially inducted into the property as a tenant by Smt. Kakoo Devi but Smt. Kakoo Devi had subsequently sold the property to her. 9. The learned ADJ on the pleadings of the parties, on 16th July, 2009 framed the following issues in the suit: "1. Whether the suit is not maintainable in the present form? OPD2 2. Whether the suit is hit by the provisions of Section 41(i)(h) of the Specific Relief Act? OPD2 3. Whether the suit of the Plaintiff is bad for non-joinder of necessary parties? OPD2 4. Whether the suit is b