Kehar Singh Saini v. Amar Singh

RAJIV SAHAI ENDLAW, J. AUGUST 09, 2018 'pp'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th August, 2018. + RSA 357/2016 & CM No.43935/2016 (for stay) KEHAR SINGH SAINI ..... Appellant Through: Mr. Virendra Singh, Adv. Versus AMAR SINGH ..... 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 impugns the judgment and decree [dated 8th March, 2016 in RCA No.08/13 of the Court of Additional Senior Civil Judge (North- West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 31st October, 2013 in Civil Suit No.115/04 (Unique ID No.02401C5142412004) of the Court of Civil Judge-01 (West)] of dismissal of the suit filed by the appellant/plaintiff for the relief of permanent injunction restraining the respondent/defendant from dispossessing the appellant/plaintiff from shop bearing plot no.72, forming part of Harlal Market, Nahar Park, Delhi – 110 085. 2. This appeal came up first before this Court on 28th November, 2016, when without recording any question of law lest substantial question of law arising for consideration, notice thereof was ordered to be issued and the counsel for the respondent/defendant appeared. Thereafter the appeal has been adjourned from time to time but on none of the subsequent dates also any mention was made of the substantial question of law arising for consideration. 3. Today, Mr. Virendra Singh counsel for the appellant/plaintiff states that he has received a message from Mr. Rohit Manan, Advocate for the respondent/defendant stating that he is unwell and to make a request to this Court for an adjournment on his behalf. 4. However in the facts aforesaid, being of the view that till the appeal is found to raise any substantial question of law, the need to hear the counsel for the respondent/defendant would not arise, the counsel for the appellant/plaintiff has been heard and the Suit Court record and the First Appellate Court record requisitioned in this Court have been perused. 5. The suit, from which this appeal arises, being only for permanent injunction restraining forcible dispossession from the shop aforesaid, I have enquired from the counsel for the appellant/plaintiff whether the appellant/plaintiff is still in possession of the shop, inasmuch as since the dismissal of the first appeal on 8th March, 2016 there is no interim order in this appeal against dispossession of the appellant/plaintiff though an application in that regard is pending. In fact a perusal of the record of the First Appellate Court also does not disclose any interim order restraining the respondent/defendant from dispossessing the appellant/plaintiff from the shop during the pendency of the First Appeal. A further perusal of the Suit Court record shows that in the suit also, no interim stay was granted against dispossession of the appellant/plaintiff till 29th May, 2004 though the suit came up before the Suit Court first on 16th April, 2004. On 29th May, 2004 also, on account of adjournment sought by the counsel for the respondent/defendant on that date, status quo regarding possession was directed to be maintained without returning any finding of the possession being that of the appellant/plaintiff. On the very next date i.e. 13rd July, 2004, the counsel for the respondent/defendant sought issuance of a commission to ascertain possession of the shop and which was opposed by the counsel for the appellant/plaintiff. 6. It is not understood as to why the appellant/plaintiff, if was in possession, opposed issuance of a commission to ascertain possession. 7. However the Suit Court, on 19th July, 2004, being of the prima facie opinion, on the basis of the settlement arrived at in Suit No.2933/1990 of this Court, that the appellant/plaintiff was in possession of the property and observing that the claim of the respondent/defendant of being in possession could be decided only at the tim