Delhi High Court
Dr. Autar Krishan Gupta & Anr. vs Brig Krishan Gupta Thru. Lrs. on 7 February, 2013
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. NO.316/2005 & CM 16091/2005 (for stay)
Decided on : 7th February, 2013
DR. AUTAR KRISHAN GUPTA & ANR. ...... Appellants
Through: Appellant No.2 in person.
Versus
BRIG KRISHAN GUPTA THRU. LRS. ...... Respondent
Through: Ms.Sangeeta Jain, Adv. for R-1(b to d)
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellants under Section 100 read with Order 43 Rule 1 CPC against the judgment dated 12.8.2005 and has been pending in this court for the last nearly seven years.
2. A perusal of the order sheets show that repeated adjournments have been taken by the counsel for the appellants. Today, the appellant No.2 is present and again prays for an adjournment, however, I do not accept the said request to adjourn the matter as the very maintainability of the present appeal is in question.
R.S.A. No.316/2005 Page 1 of 6
3. Before dealing with the question as to whether the present appeal is maintainable or not, it would be pertinent here to give brief facts of the case. One Mr. Brij Krishan Gupta filed a suit for permanent injunction in the year 1979 against his brothers, namely, Chander Krishan Gupta, Avtar Krishan Gupta, Balraj Krishan Gupta and his sister, Anjali Gupta. It was alleged in the said suit that he was in peaceful possession of premises No.38, Ratendon Road (subsequently named as Amrita Shergill Marg), New Delhi and the defendants were interfering with his possession. Along with the main suit, Brij Krishan Gupta had also filed an application under Order 39 Rules 1 & 2 CPC for ad interim injunction which was dismissed.
4. An appeal was preferred against the same which was also dismissed. Thereafter, a Civil Revision No.845/1979 is stated to have been filed in the High Court which was allowed on 21.12.1979. For the purpose of deciding that civil revision, the record of the original suit was also requisitioned. However, after the decision of the civil revision, the original record was not transmitted back to the trial court for almost 18 years. None of the parties seem to have taken any interest in ensuring R.S.A. No.316/2005 Page 2 of 6 that the record goes back. When the record was received back by the trial court on 8.1.1998, notices were issued for the purpose of appearance of both the parties. The factum of the death of Brij Krishan Gupta on 16.4.1998 was brought to the knowledge of the court for the first time only on 30.4.1998. Since no application under Order 22 Rule 3 CPC was filed consequently, the suit by operation of law had abated after the expiry of 90 days from the date of his death. Subsequent thereto, an application was filed before the Civil Judge for setting aside the order of abatement along with an application under Section 5 of the Limitation Act. It was further alleged in the application for substituting the legal heirs of Brij Krishan Gupta that on 30.9.1998, fresh attempt was made by the defendants in the suit to dispossess the legal heirs of Brij Krishan Gupta. The Civil Judge rejected the application under Order 22 Rule 3 CPC on 27.11.1999 on two grounds; firstly, the abatement of suit had taken place by operation of law and, secondly, the application for setting aside abatement itself was filed beyond 60 days and no 'sufficient cause' was shown for condoning the delay. As regards the fresh attempt of defendants to dispossess the legal heirs of Brij Krishan Gupta on 30.9.1998 is concerned, it was observed that it constituted a fresh cause R.S.A. No.316/2005 Page 3 of 6 of action and, therefore, it could not be a ground for substitution and allowing the setting aside of the order of abatement and it would only give a fresh cause of action to initiate a fresh suit against the defendants.
5. Feeling aggrieved, the legal heirs of Brij Krishan Gupta preferred an appeal before the Court of Additional District Judge being R.C.A. No.2/03/1999. This appeal was allowed by the learned Additional District Judge on 12.8.2005 and the order dated 27.11.1999 passed by the Civil Judge dismissing the application under Order 22 Rule 3 CPC was set aside and the abatement order was recalled. It was further directed that the legal heirs of Brij Krishan Gupta be brought on record, who may file the amended memo of parties and the case would proceed further. The reason given by the appellate court for setting aside the order of abatement of suit was that substantial justice between the parties should be done on merits of the matter and the law of limitation not to be construed in a very pedantic manner.
6. Feeling aggrieved by the said order of setting aside the order of abatement by the learned Additional District Judge, the present second appeal has been filed by the two appellants, who happen to be the co- R.S.A. No.316/2005 Page 4 of 6 sharers in the property in question to the extent of 25 per cent each along with respondent No.3 (Anjali Bindal) in the appeal.
7. I have heard the appellant No.2 in person as well as the learned counsel for the respondents. The two substantial questions of law which are stated to have been formulated in the appeal are as under :
"1. Whether the learned Additional District Judge would have ordered for setting aside of abatement even when the right to sue does not survive?
2. Whether learned Additional District Judge in setting aside abatement even when the application has pleaded a fresh cause of action and consequently a separate suit will lie?"
8. The above two questions are essentially questions of fact and not the questions of law, much less substantial questions of law. Apart from this, the appeal itself is not maintainable as a regular second appeal. This is on account of the fact that the second appeal is maintainable only against a decree passed in appeal by any court sub-ordinate to the High Court. In the instant case, no decree has been passed as yet. What was under challenge before the first appellate court was an order passed by the Civil Judge dismissing the application of some of the parties for R.S.A. No.316/2005 Page 5 of 6 substitution of legal heirs and the order of abatement of the suit. Because of this legal position, I am afraid that the present second appeal is not admissible in terms of Section 100 of the CPC.
9. For these reasons, I feel that despite the fact that the regular second appeal has been filed in the year 2005, it has been unnecessarily kept pending. I feel that the appeal is not maintainable and accordingly, the same is dismissed. The interim application also stands dismissed.
V.K. SHALI, J.
FEBRUARY 07, 2013 'AA' R.S.A. No.316/2005 Page 6 of 6