Mahesh Karwal v. Satya Devi

RAJIV SAHAI ENDLAW, J. OCTOBER 01, 2018 'gsr/bs'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st October, 2018. + MAHESH KARWAL ..... Appellant Through: Mr. Kamal Kapoor, Adv. Versus SATYA DEVI ..... Respondent Through: Mr. Rajesh Karwal, son of the respondent. 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 29th April, 2016 in RCA No.13/2014 (Unique Case ID No.0121002014) of the Court of Additional Senior Civil Judge] allowing the First Appeal under Section 96 of the CPC filed by the respondent / plaintiff against the judgment and decree [dated 11th February, 2014 in Suit No.1/2013 (Unique ID No.02401C0002142013) of the Court of Civil Judge-01 (West)] of dismissal of the suit filed by the respondent / plaintiff for mandatory injunction directing the appellant / defendant to vacate the room, attached latrine in property bearing No.5/100, Top Floor (Third Floor), near Kawatra Tent House, Subhash Nagar, Delhi, and, for permanent injunction restraining the appellant / defendant from interfering with peaceful possession of the respondent / plaintiff of the remaining property and / or from in any manner dealing with the property. Resultantly, the First Appellate Court passed the decree in favour of the respondent / plaintiff and against the appellant / defendant as sought. 2. This appeal came up first before this Court on 28th September, 2016 when, on the contention of the counsel for the appellant / defendant that the defence of the appellant / defendant was of the appellant / defendant having bought the property from his own monies and in the name of the respondent / plaintiff on account of the respondent / plaintiff being the mother of the appellant / defendant and that the case was covered by Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988, notice of the appeal was ordered to be issued, execution of the judgment and decree stayed and the trial court record requisitioned. The appeal was thereafter adjourned from time to time, mostly on the request of the counsel for the appellant / defendant. The appeal was listed last before this Court on 27th September, 2018 when the advocate for the appellant / defendant again did not appear and sent a request for passover. Observing, that the appellant / defendant, after taking ex parte stay of judgment and decree impugned and without even any substantial question of law, which the sine qua non for entertaining a Second Appeal, having been framed, could not so perpetuate the interim order and further observing that seeing the cause list of this Court, the advocate for the appellant / defendant would have known that the matter if passed over would not reach again, while adjourning the appeal to 17th January, 2019, the interim order was vacated, preserving the rights of the appellant / defendant of restitution in the event of appeal succeeding. The counsel for the appellant / defendant appeared subsequently and on his request the matter was posted for today. 3. The counsel for the appellant / defendant has been heard and the trial court record perused to gauge whether the appeal raises any substantial question of law. 4. The argument of the counsel for the appellant / defendant, raised on the date when notice was issued as well as today is (i) that the appellant / defendant, with his own monies purchased the property aforesaid in the name of his mother i.e. the respondent / plaintiff; (ii) that the respondent / plaintiff is thus the benami owner of the property and the appellant / defendant is the real owner of the property; (iii) that the Suit Court appreciated the said defence of the appellant / defendant and upholding the same, dismissed the suit; (iv) however, the First Appellate Court, wrongly appreciating the judgment dated 7th May, 2012 in RFA No.207/2012 titled J.M. Kohli Vs. Madan Mohan Sahni, has allowed the First Appeal of the respondent / plaintiff and consequently allowed