Rajesh Kumar @ Ramu v. Sunil Kumar

RAJIV SAHAI ENDLAW, J MAY 10, 2016

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*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th May, 2016 + RFA 450/2015 RAJESH KUMAR @ RAMU ..... Appellant Through: Mr. P.S. Ranga, Adv. Versus SUNIL KUMAR ..... Respondent Through: Mr. Ajit Singh, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns the judgment and decree dated 9th January, 2014 of the Court of Additional District Judge (ADJ)-05, West District, Tis Hazari Courts (THC), Delhi of dismissal in limine (though after several adjournments) of CS No.399/12/12 filed by the appellant / plaintiff under Section 5 of the Specific Relief Act, 1963 for ejectment of the respondent / defendant by way of recovery of possession of immovable property and for permanent injunction. 2. Notice of the appeal was ordered to be issued and the counsel for the respondent / defendant appears. 3. The appeal was posted for today for hearing, being of the view that since the judgment and decree under appeal is of dismissal, in limine without even issuance of notice to the respondent / defendant, of the suit as barred by time and in the event of appeal succeeding, the suit will have to be remanded, it should be heard at an early date. 4. Trial Court record has been perused. 5. After perusing the Trial Court record, when I asked the counsel for the respondent / defendant as to why the appeal should not be allowed, he, after making some arguments and being unable to satisfy this Court on law, states that he has received the file from the respondent / defendant yesterday only and the matter be adjourned to enable him to research on law. 6. However, adjournment has been refused finding that the respondent / defendant was served way back on 9th April, 2016 and being of the view that if adjournments are granted to counsels to answer the queries raised by the Court, the hearing would never complete. 7. The appellant / plaintiff instituted the suit from which this appeal arises, pleading: (i) that his late father was the owner of House No.F-485, J.J. Colony, Madipur, Delhi; (ii) that the mother and father of the appellant / plaintiff who were residing at the said house died while the appellant / plaintiff was in judicial custody and the house was lying vacant in a locked condition; (iii) that the appellant / plaintiff came to know that the respondent / defendant had broken open the lock and illegally and unauthorisedly started residing in the house; (iv) that the appellant / plaintiff made an application dated 28th August, 1998 from judicial custody to the Court of Additional Sessions Judge (ASJ) for necessary action against the respondent / defendant and on which application the learned ASJ directed the ACP, Anti Burglary to take necessary action; (v) the police found that the respondent / defendant was illegally and unauthoisedly residing in the property and had removed household goods of the appellant / plaintiff and had also forged and fabricated some documents regarding the suit property for showing his ownership of the suit property and qua which FIR No.60/99 was registered against the respondent / defendant; (vi) that the cause of action for the suit accrued to the appellant / plaintiff on 2nd March, 1997 when the appellant / plaintiff moved an application before the ASJ intimating that his house was lying vacant; thereafter on 28th August, 1998 when the appellant / plaintiff moved an application aforesaid and the cause of action was a continuing one. 8. The suit came up first before the learned ADJ on 27th September, 2012 when the counsel for the appellant / plaintiff was asked to satisfy as to how the suit was within time. After several adjournments, vide impugned order / judgment / decree dated 9th January, 2014, the suit has been dismissed in limine as time barred without even issuance of summons thereof to the respondent / defendant, observing / finding / holding: (i) that as per the counsel for the appellant / plaintiff the suit was within limitation, the applicable Article being Article 65 of th