Renu v. Champa Rani & Anr

RAJIV SAHAI ENDLAW, J. AUGUST 27, 2018 'pp'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 27th August, 2018. + RSA 119/2018, CM No.34555/2018 (for stay) & CM No.34558/2018 (for condonation of 7 days delay in refiling) RENU ..... Appellant Through: M. Hasibuddin, Adv. Versus CHAMPA RANI & ANR ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.34556/2018 & CM No.34557/2018 (both for exemption). 1. Allowed, subject to just exceptions. 2. The applications stand disposed of. RSA 119/2018, CM No.34555/2018 (for stay) & CM No.34558/2018 (for condonation of 7 days delay in refiling). 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 7th June, 2018 in RCA No.208917/2016 (Filing No.29144/2016) (CNR No. DLST01- 005432-2016) of the Court of the Additional District Judge-02 (South)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 30th August, 2016 in Suit No.466/2012 (CNR No.DLST03-000178-2012) of the Court of the Additional Senior Civil Judge (South)] allowing the suit filed by the respondent no.1/plaintiff for mandatory injunction directing appellant/defendant and the respondent no.2/defendant to vacate the property no.K-259, Dakshin Puri, New Delhi of the respondent no.1/plaintiff. 4. The appeal is accompanied with an application for condonation of delay of seven days in re-filing thereof. 5. The delay is condoned and CM No.34558/2018 is disposed of. 6. The counsel for the appellant/defendant has been heard. 7. The appellant/defendant is the wife of the respondent no.2/defendant Sanjay Kumar and the daughter-in-law of the respondent no.1/plaintiff Champa Rani. The respondent no.1/plaintiff instituted the suit, pleading to be owner of aforesaid property and having allowed appellant/defendant and the respondent no.2/defendant to reside in the house on account of relationship. It was further the plea of the respondent no.1/plaintiff that the appellant/defendant was creating nuisance in the house and the respondent no.1/plaintiff did not desire the appellant/defendant and the respondent no.2/defendant to continue living with her in her house. It was further pleaded that they refused to vacate inspite of requests. 8. I have enquired from the counsel for the appellant/defendant, whether not the law in this regard is very well settled i.e. that the appellant/defendant as daughter-in-law of the respondent no.1/plaintiff has no right of residence in the house of her mother-in-law and that the right of residence if any of the appellant/defendant is against her husband respondent no.2/defendant only. 9. The counsel for the appellant/defendant does not controvert. 10. Once it is so, no substantial question of law arises in this Second Appeal. 11. Supreme Court, in Sir Chunilal V. Mehta Vs. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314, reiterated in Kashmir Singh Vs. Harnam Singh (2008) 12 SCC 796, held that the proper test for determining whether a question of law raised in a case is substantial, is whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is an open question in the sense it is not finally settled or is not far from difficulty or calls for discussion of alternative views; if the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles, it would not be a substantial question of law. It was further held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact being the first Appellate Court. Mere appreciation of facts, documentary evidence was held to be not raising a question of law. Even in Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179 it was held: "To be "subst