KANHAIYA LAL & ANR. Vs. NATHI LAL

JUDGEMENT

(1.) The appellant No.1 Sh.Kanhaiya Lal is the son and appellant No.2 Smt.Raj Kumar is the daughter-in-law of the respondent Sh.Nathi Lal. The appellants are aggrieved by the concurrent judgments of the Courts below i.e. judgment dated 9th January, 2014 passed by the learned Trial Court and judgment dated 29th November, 2014 passed by the learned First Appellate Court whereby, by way of mandatory injunction, the appellants/defendants have been directed to vacate the first floor of the property bearing No.15/291, Dakshin Puri, New Delhi-110062 admeasuring 22 1/2 sq.yds.

(2.) This Regular Second Appeal has been preferred after a delay of 617 days in filing the appeal and delay of 25 days in re-filing the appeal. The reason given for condonation of delay is that the appellant No.1 was having high blood sugar and was bed ridden. The application is not accompanied by any medical record to show that the appellant No.1 remained bed ridden for such a long time. However, in view of the decision of the Supreme Court in N.Balakrishnan vs. M.Krishnamurthy (1998) 7 SCC 123 to ensure that doors of the justice are not foreclosed to the appellants, the delay of 617 days in filing the appeal and delay of 26 days in re-filing the appeal is condoned.

(3.) Learned counsel for the appellant has filed written submissions on the substantial question of law involved in this appeal. Learned counsel for the appellant has also contended that the Civil Suit No.411/2011 was filed by the father of the appellant No.1 under the influence of his another son Sh.Dal Chand without impleading Urban Shelter Board which was a necessary party. The land was allotted by the Urban Shelter Board. Further, the respondent/plaintiff himself was a licencee and was not capable to create or revoke licence in favour of any other person including the appellants who are his son and daughter-in-law. Learned counsel for the appellant has also raised issue of maintainability of the suit for mandatory injunction contending that possession could not have been granted by issuing mandatory injunction and the respondent/plaintiff should have filed a suit for possession. It has been contended that both the Courts below failed to take note of the fact that plot was allotted to respondent/plaintiff for rehabilitation of the jhuggi-jhopri dwellers. The appellants have also contributed in the construction of the suit property and are share holders in the said property.