VIJAY KUMAR BEHAL Vs. VISHWA SWAROOP DECD

JUDGEMENT

(1.) By this application the appellants/applicants are seeking condonation of delay in filing the appeal against the impugned judgment and decree dated 13th August, 1997 passed by Shri J.M. Malik, Additional District Judge, Delhi granting a decree of possession against them in two consolidated suits (No. 22/89 and 23/89) in respect of first floor and the second floor of the premises No. B-1/29 Hauz Khas, New Delhi, and a decree of damages/mesne profits of Rs. 3900.00 and Rs. 2600.00 respectively in the said suits:

(2.) Facts giving rise to the above application briefly are that Vishwa Swaroop (respondent/plaintiff) instituted two above noted suits against the appellants/applications for recovery of possession of 1st floor and 2nd floor of the premises No. B-1/29 Hauz Khas, New Delhi and recovery of damages/mesne profits. Both suits were consolidated. Plaintiff died during the pendency of the suit. His widow, Smt. Kaushalya Devi, was substituted as the plaintiff by order dated 20.3.95. Vide impugned judgment and decree dated 13th August, 1997 Shri J.M. Malik, Additional District Judge, decreed both the suits against the appellants. Feeling aggrieved against the impugned judgment and decree, the applicant/appellants filed two appeals (RFA 294/97 and RFA 295/97). In the opening sheets of both the appeals respondent was described as "Vishwa Swaroop (deceased)" and in the Memo of Parties respondent was described as Vishwa Swaroop (decreased) through Vidya Sagar. Both the appeals came up for preliminary hearing before a Division Bench of this Court on 13th October, 1997. While admitting the appeals notice on the stay applications was directed to be issued for 25th October, 1997. Interim stay against dispossession was also granted. The respondent was duly served for this date but nobody appeared. Consequently the order dated 13th October, 1997 granting stay was made absolute pending final disposal of the appeal. However, liberty was granted to the respondent to apply for variation.

(3.) 7th January, 1999 Smt. Kaushlya Devi, Widow of the deceased, Shri Vishwa Swaroop moved an application (CM No. 5/99) in RFA 294/97, under Section 151 of the Code of Civil Procedure, 1908 (for short Code), praying therein that she was the only legal representative of Vishwa Swaroop , which was within the knowledge of the appellants; that in the appeal she was not impleaded as a party and that the appeal filed against Shri Vidya Sagar, brother of her husband was not maintainable and was liable to be dismissed. Notice of this application was issued for 10th February, 1999 to the appellants. It appears that after receipt of the notice of this application, on 15th January, 1999 appellants moved an application (CM No. 102/99) under Order 6 Rule 17 of the Code pleading therein that it was by sheer omission that the name of the legal representative of the deceased respondent was mentioned as Vidya Sagar, who is the real brother of the deceased/plaintiff, who had appeared as a witness and was his attorney. Notice of the appellants' application was also issued for the date already fixed. On 10th February, 1999 when the matter was taken up for hearing, counsel for the applicant/appellant sought time to file reply to CM 5/99 of Smt. Kaushalya Devi and the matter was adjourned to 7th May, 1999, on which date her counsel took time to file a rejoinder and the matter was directed to be listed for hearing on 6th September, 1999.