MAHESH KARWAL Vs. SATYA DEVI

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 impugns the judgment and decree [dated 29th April, 2016 in RCA No.13/2014 (Unique Case ID No.0121002014) of the Court of Additional Senior Civil Judge] allowing the First Appeal under Section 96 of the CPC filed by the respondent / plaintiff against the judgment and decree [dated 11th February, 2014 in Suit No.1/2013 (Unique ID No.02401C0002142013) of the Court of Civil Judge-01 (West)] of dismissal of the suit filed by the respondent / plaintiff for mandatory injunction directing the appellant / defendant to vacate the room, attached latrine in property bearing No.5/100, Top Floor (Third Floor), near Kawatra Tent House, Subhash Nagar, Delhi, and, for permanent injunction restraining the appellant / defendant from interfering with peaceful possession of the respondent / plaintiff of the remaining property and / or from in any manner dealing with the property. Resultantly, the First Appellate Court passed the decree in favour of the respondent / plaintiff and against the appellant / defendant as sought.

(2.) This appeal came up first before this Court on 28th September, 2016 when, on the contention of the counsel for the appellant / defendant that the defence of the appellant / defendant was of the appellant / defendant having bought the property from his own monies and in the name of the respondent / plaintiff on account of the respondent / plaintiff being the mother of the appellant / defendant and that the case was covered by Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988, notice of the appeal was ordered to be issued, execution of the judgment and decree stayed and the trial court record requisitioned. The appeal was thereafter adjourned from time to time, mostly on the request of the counsel for the appellant / defendant. The appeal was listed last before this Court on 27th September, 2018 when the advocate for the appellant / defendant again did not appear and sent a request for passover. Observing, that the appellant / defendant, after taking ex parte stay of judgment and decree impugned and without even any substantial question of law, which the sine qua non for entertaining a Second Appeal, having been framed, could not so perpetuate the interim order and further observing that seeing the cause list of this Court, the advocate for the appellant / defendant would have known that the matter if passed over would not reach again, while adjourning the appeal to 17th January, 2019, the interim order was vacated, preserving the rights of the appellant / defendant of restitution in the event of appeal succeeding. The counsel for the appellant / defendant appeared subsequently and on his request the matter was posted for today.

(3.) The counsel for the appellant / defendant has been heard and the trial court record perused to gauge whether the appeal raises any substantial question of law.