Dalip Singh & Anr v. Tulsi Ram

RAJIV SAHAI ENDLAW, J. AUGUST 14, 2018 SR

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 14th August, 2018. + DALIP SINGH & ANR ..... Appellant Through: Mr. Dilpreet Singh and Mr. Harpreet Singh, Advs. for Appellant No.1 along with appellant No.1 in person. Mr. Nitish Negi, Adv. for Mr. Vikas Sharma, Adv. for Appellant No.2. Versus TULSI RAM (DECEASED) THROUGH LRS .... Respondent Through: Mr. Anil K. Batra and Mr. Praveen Kumar, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 27th May, 2016 in CIS- RCA DJ -8785/2016 (CNR-DLST01-000894-2015) of the Court of District Judge-South] of dismissal of First Appeal under Section 96 of the CPC preferred by the two appellants against the judgment and decree [dated 21st January, 2015 in Suit No.621/2014 (UID No. 02401C0914682007) of the Court of Civil Judge-12 (Central)] allowing the suit filed by the respondent/plaintiff against the appellants/defendants. 2. The appeal came up before this Court first on 4th August, 2017 when, without indicating the substantial question of law if any arising in this Second Appeal, notice thereof was ordered to be issued and the operation of the impugned judgments and decrees stayed. 3. The counsel for the respondents has been appearing and the Suit Court record has been requisitioned. 4. Today, Mr. Nitish Negi, Advocate appears for appellant No.2 Sita Ram and states that he has been recently engaged and seeks adjournment. 5. Mr. Dilpreet Singh, Advocate for the appellant No.1 has been asked to argue. He has merely stated, that he had raised a question of limitation and cause of action before the First Appellate Court and which has not been dealt with by the First Appellate Court. However, on being asked as to what is the substantial question of law which arises, he seeks adjournment stating that he was under the impression that the new counsel will appear for both the appellants. However, in spite of being given an opportunity to seek discharge, he is not willing to seek discharge also on behalf of appellant No.1. It is quite obvious that dilatory tactics are being practiced to perpetuate the interim order obtained, by merely putting up a new advocate before this Court. Advocates cannot seek engagement, for the purpose of taking adjournment and once engaged, have to prepare the brief. The request for adjournment is thus denied. 6. While this order is being dictated, Mr. Dilpreet Singh, Advocate states that substantial questions of law have been proposed in the memorandum of appeal. 7. The counsel for the respondent/plaintiff states that no plea of limitation was taken in the written statement and no issue framed thereon and the argument today is a bogus one. Similarly, it is stated that cause of action pleaded in the plaint has been proved. 8. Since neither of the counsels for the appellants has chosen to argue, it is deemed appropriate to consider whether any substantial question of law arises, by perusal of the suit record requisitioned and by hearing the counsel for the respondent plaintiff. 9. The respondent/plaintiff instituted the suit, from which this appeal arises, for recovery of possession of immovable property, for mandatory injunction and mesne profits, pleading: (i) that the respondent/plaintiff is the owner of plot No. 195, Savitri Nagar, Malviya Nagar, New Delhi which is open on two sides; (ii) that a portion ad measuring 15 ft. x 20 ft. of the said property, towards main road, Savitri Nagar, as shown in red in the site plan annexed to the plaint, had been encroached upon by the appellants/defendants by depositing iron scrap and waste, thereby obstructing the free passage of the respondent/plaintiff to the said portion of his property; (iii) that the appellants/defendants were/are working as mechanics with M/s Sharma Motor Works having its workshop in adjoining property No. 196-H; (iv) that in the month of November, 1996, the appellants/defend