RAJNI SAXENA Vs. RAJINDER YADAV & ORS

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) was filed impugning the judgment and decree [dated 11th July, 2016 in RCA No.15/2015 of the Court of Additional District Judged (Central)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 12th March, 2015 in Suit No.705/2014 (Unique ID No.0240K0040692011) of the Court of Civil Judge-05 (Central)] of dismissal of suit filed by the appellant/plaintiff for recovery of possession of immoveable property with mesne profits.

(2.) The appeal came up first before this Court on 3rd March, 2017 and thereafter on 8th March, 2017 when, without recording any satisfaction that the appeal entailed any substantial question of law and without framing any substantial question of law, notice of the appeal was ordered to be issued and the Trial Court record requisitioned.

(3.) On the next date of hearing i.e. 25th April, 2017, the counsel for the respondent/defendant No.1 stated that the respondent/defendant No.3 Smt. Kiran Yadav had expired. The appellant/plaintiff thereafter applied for substitution of heirs of respondent No.3 and which was allowed on 19th December, 2017. The counsel, who had earlier appeared for respondent/defendant No.1, thereafter appeared for the respondents/defendants No.1 to 3 i.e. Rajinder Yadav, Dinesh Yadav and the legal heirs of respondent/defendant No. The respondent/defendant No.4 Havaldar Yadav did not appear despite service and was on 22nd August, 2017 proceeded against ex-parte. On 6th September, 2018, though the counsel for the respondents/defendants No.1 to 3 appeared but none appeared for the appellant/plaintiff and the appeal was dismissed for non-prosecution. Subsequently, the counsel for appellant/plaintiff mentioned the matter and though he was heard on whether the appeal entailed any substantial question of law, to decide whether to restore the appeal, but could not satisfy the Court. Now today, an application for restoration of the appeal has been filed.