GAURI SHANKAR Vs. RAKESH KUMAR

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 3rd February, 2005 in RCA No.98/1997 of the Court of Additional District Judge, Delhi] partly allowing the First Appeal under Section 96 of the CPC filed by the respondents/defendants against the judgment and decree [dated 27th September, 1997 in Suit No.436/1996 of the Court of Civil Judge, Delhi] allowing the suit filed by the appellant/plaintiff against the respondents/defendants, for dissolution of partnership, rendition of accounts and recovery of possession of Shop No.47 U.B., Jawahar Nagar, Delhi. The First Appellate Court, while has upheld the decree insofar as of dissolution of partnership and rendition of accounts, has set aside the decree for recovery of possession of the shop aforesaid.

(2.) This second appeal came up first before this Court on 20th May, 2005, when while issuing notice thereof, vide ex-parte ad-interim order, the respondent/defendant No.3 Balmukand Verma was restrained from alienating in any manner, Shop No.47 U.B., Jawahar Nagar, Delhi. However, vide order dated 21st February, 2006, upon the counsel for the appellant/plaintiff absenting, the appeal was dismissed in default and for non-prosecution and the interim order vacated. The appellant/plaintiff applied for restoration of the appeal and on 26th April, 2006 notice of which application was ordered to be issued. The appellant/plaintiff not only failed to serve the respondents/defendants inspite of repeated opportunities, but also again failed to appear on 27th August, 2008 and resultantly the application filed for restoration of the appeal already dismissed in default and for non-prosecution, was also dismissed. The appellant/plaintiff again applied for setting aside of the order dated 27th August, 2008 and when the said application came up before this Court on 24th October, 2008, informed that the respondent/defendant No.3 Balmukand Verma had died on 14th January, 2007. The process of substitution of the legal representatives (LRs) of the respondent/defendant No.3 Balmukand Verma thereafter began. Ultimately, vide order dated 22nd July, 2010, the order dated 27th August, 2008 of dismissal of the application for restoration of this second appeal already dismissed in default, was recalled and the application for restoration of the appeal restored to its original position. Vide subsequent order dated 18th November, 2011, the LRs of the deceased respondent/defendant No.3 Balmukand Verma were brought on record and the appeal restored to its original position. Vide yet subsequent order dated 2nd December, 2013, holding that this second appeal did not entail any substantial question of law, this second appeal was dismissed. The appellant/plaintiff applied for review of the said order but the review application was also dismissed vide order dated 22nd August, 2014.

(3.) The appellant/plaintiff preferred SLP(C) Nos.29019-29020/2015 to the Supreme Court, challenging the orders dated 2nd December, 2013 of dismissal of the appeal as not entailing any substantial question of law and order dated 22nd August, 2014 of dismissal of the application filed for review of the order dated 2nd December, 2013, and which SLP was granted and converted to Civil Appeal Nos.4513-4514/2017 which were disposed of vide order dated 29th March, 2017 of the Supreme Court. The Supreme Court set aside the order dated 2nd December, 2013 of this Court of dismissal of this second appeal as not entailing any substantial question of law and relegated the parties to this Court for a fresh consideration of this second appeal on its own merits in accordance with law, and more so the substantial questions of law formulated by the appellant/plaintiff in the memorandum of this second appeal, leaving it open to this Court to formulate the substantial questions of law or permit the parties to urge any further substantial question of law that may require consideration.