Hira Devi & Ors. vs Saligram & Ors. on 25 February, 2016

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Delhi High Court

Hira Devi & Ors. vs Saligram & Ors. on 25 February, 2016

1. This is an application filed by the appellants under Order IX Rule 4 CPC for setting aside the order dated 13.1.2016 by virtue of which the application seeking restoration of the appeal bearing No.15766/2007 was dismissed for non-prosecution.

2. I have heard the learned counsel for the appellants and have also gone through the record. This case has a chequered history and neither the appeal nor the suit which was filed in the year 1974 was prosecuted diligently as a consequence of which the suit which was initiated in 1974, that is, almost 42 years earlier has still not attained finality.

3. Brief background of the case is that one Prem s/o Dewan and resident of Chirag Delhi filed a suit bearing No.684/1974 against as many as 11 persons which included the legal heirs of one Paras Ram also, who F.A.O. No.428/2001 Page 1 of 5 was also stated to be the pujari. The suit was filed for permanent injunction saying that kalkaji temple which is situated in village Bahadpur, New Delhi and is visited by many devotees, receives offerings in plenty from the devotees. In addition to this, income is also generated from tehbazari and other properties pertaining to the temple which are realized by the pujaris in turn in certain proportion which need not be gone into for disposal of this application. The suit was proceeded and decided on merits after framing of issues by Mr. G.P. Thareja, the then Sub Judge Ist class on 4.6.1977 whereby the suit was decreed and it was observed that the plaintiff has already enjoyed his baari meaning thereby he has already taken his turn of collection of offerings and income from tehbazaari and other properties. Therefore, the decree of mandatory injunction though passed in his favour, stood already satisfied. This was challenged by the appellant Hira Devi, wife of the original plaintiff, Prem and his other legal heirs before the learned ADJ. On 13.8.2001, that is, almost after 14 years, the learned ADJ passed the following order :-

"13.8.2001 Present: None for the appellant since morning despite repeated calls till 12:30 pm. I have gone through the application under Order 9 Rule 9 read with Order 41 Rule 19 CPC application under Section 5 of the Limitation Act. In the application, it is alleged that the earlier restoration application was dismissing in default on 8.5.2001 due to wrong noting of the date as 8.11.2000. No document has been placed on record to this effect that it was due to wrong noting of date. None could appear on behalf of the applicant on 8.5.2000. Otherwise also, the application is barred by time and no F.A.O. No.428/2001 Page 2 of 5 sufficient cause has been explained for condonation of the delay. So both the applications, i.e., application under Order 9 Rule 9 read with Order 41 Rule 19 CPC and application under Section 5 of the Limitation Act being devoid of any merit are hereby dismissed. File be consigned to record room.

Sd/-

13.8.2001"

4. The appeal was dismissed in default on 8.5.2001. The appellant filed an application for restoration of the appeal along with an application under Section 5 of the Limitation Act. However, the said application was dismissed holding that neither the appellant has been able to show 'sufficient cause' nor the sufficient reason for his absence and therefore, both the applications were dismissed.

5. It is against this order that the present appeal was filed in 2001. The appeal is pending in this court for the last almost 15 years only for service of the respondents as most of the respondents had died and their legal heirs had to be substituted and therefore, their service was to be affected. It took almost 15 years to serve the legal heirs as sufficient interest was not being taken by the appellants with due dispatch. In between, on 29.10.2007, the appeal was dismissed for non-appearance despite the matter having been passed over twice. It is against this order, that an application for restoration was filed before this court bearing C.M. No.15766/2007 in which also sufficient interest was not being taken by the appellants to have the application decided expeditiously so that the appeal could be decided.

F.A.O. No.428/2001 Page 3 of 5

6. On 13.1.2016, the following order was passed and the application for restoration was dismissed for non-prosecution :-

"CM Appl. 15766/2007

There is no appearance on behalf of the appellant despite second call.

The present application is dismissed for non-prosecution. No application for restoration will be entertained without the applicant-appellant depositing a sum of Rs.10,000/- with the Delhi High Court Legal Services Committee."

7. Ultimately again on 5.2.2016, the court passed following order :-

"Proxy counsel for the appellant prays for an adjournment. This is an appeal which is pending for the last more than 14 years and the order sheets reflect that repeated adjournments have been sought by the appellant. Although, there is no justification for granting an adjournment; however, in the interest of justice, list on 11.2.2016."

8. The application for restoration was filed and it was adjourned on 2- 3 occasions. It seems that the suit having been decreed by the trial court in the year 1977, when it has taken note of the fact that the mandatory injunction stands already satisfied, I fail to understand what was the purpose of taking out an appeal and then keep the pot boiling unnecessarily. As a consequence of this appeal, the matter has remained alive for almost 42 years. This is the reason why judicial system is plagued with pendency where the courts which are over indulgent to the requests of the counsel and adjourn the matter time and again. So far as the counsel are concerned, they are also in a way responsible for delay because repeated adjournments are sought.

F.A.O. No.428/2001 Page 4 of 5

9. In the instant case, nothing material remains on the suit because the decree has already been satisfied. As no cogent reason has been given by the counsel for absence on 13.1.2016, I am not inclined to restore the matter and hear the application for restoration. Accordingly, the present application is dismissed.

V.K. SHALI, J.

FEBRUARY 25, 2016 'AA' F.A.O. No.428/2001 Page 5 of 5

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