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2018 Supreme(Del) 392
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Vinay Kumar Gupta – Appellant
Versus
Sudama Prasad Gupta – Respondent
RFA 831 of 2016
Decided On : 23-04-2018
For the Appellant :Mr. Mahendra Bairwa, Advocate
For the Respondent:Mr. Ashish Virmani & Ms. Sukriti Gandhi, Advocates
The main legal point established is that the dismissal of a suit based on a procedural defect may not be just, and additional evidence may be permitted to allow parties to establish their cases.
Headnote:
Will - Property Dispute - 1932 Will, Possession Suit - Order XLI Rule 27 CPC
Fact of the Case:
The Plaintiff filed a suit for possession of a property claiming ownership through a 1932 Will. The suit was dismissed as the Plaintiff failed to produce an attesting witness to the Will. Both parties appealed, and the Court allowed the appeals, remanding the case to permit the Plaintiff to adduce the evidence of an attesting witness and the Defendant to file its defense and adduce evidence.
Finding of the Court:
The Court found that the Plaintiff's failure to produce an attesting witness to the Will led to the dismissal of the suit. However, it held that the dismissal based on a procedural defect was not the appropriate resolution, and both parties should be given an opportunity to establish their respective cases.
Issues: The main issue was the failure to produce an attesting witness to the Will, leading to the dismissal of the suit. The Court also addressed the need for both parties to have an opportunity to present their cases.
Ratio Decidendi: The Court held that the dismissal of the suit based on a procedural defect was not just, and both parties should be given an opportunity to establish their cases. It cited Order XLI Rule 27 CPC, allowing additional evidence to be adduced in certain circumstances.
Final Decision: Both appeals were allowed, and the case was remanded to the Trial Court to permit the Plaintiff to adduce the evidence of an attesting witness and the Defendant to file its defense and adduce evidence.
Prathiba M. Singh, J.
CM APPLs. 39261/2016 (Stay), 42134/2016, 26801/2017 in RFA 831/2016 and RFA ______/2018 (to be numbered)
1. The cross objections be registered as a separate RFA. The appeals arise out of a common judgment dated 16th March, 2016 by which the suit for possession filed by the Appellant/Plaintiff (hereinafter, ‘Plaintiff’) was dismissed.
2. The brief background of the suit is that the Plaintiff, Mr. Vinay Kumar Gupta claimed that his grandfather, Sh. Binodi Lal had purchased the suit property bearing no.11192 and 11212 situated at Mandir Marg, Dori Walan, Karol Bagh, New Delhi (hereinafter, ‘suit property’). The case of the Plaintiff is that the original owner of the suit property was Sh. Chajju Ram, S/o Lala Nathu Ram. Plaintiff further claims that during the lifetime of his grandfather i.e. Sh. Binodi Lal, a Will was executed by him on 17th June, 1932 bequeathing the property in favour of his elder son, Sh. Ghanshayam Dass, the father of the Plaintiff.
3. Sh. Binodi Lal died on 10th January, 1978 and Plaintiff’s father became the sole and exclusive owner of the suit property. Thereafter the Plaintiff’s father, it is pleaded, had executed a Will dated 21st September, 2000 bequeathing the property to the Plaintiff, Mr. Vinay Kumar Gupta, his brother Mr. Ajay Gupta and Mr. Vivek Gupta, nephew of the Plaintiff. All the three became co-owners of the suit property after the death of Sh. Ghanshayam Dass on 5th November, 2000. Thereafter, it is the case of the Plaintiff that one Sh. Krishan Kumar and his son Sh. Raj Kumar, who were tenants in the suit property and were paying the monthly rent to the Plaintiff, had vacated the suit property without intimation to the Plaintiff. Since the suit property was lying vacant, the Respondent/Defendant (hereinafter, ‘Defendant’) trespassed/encroached upon the suit property. An FIR was also registered on 7th September, 2004 in respect of this trespass which is still pending.
4. The present suit for possession was filed by the Plaintiff as co-owner of the property seeking the following reliefs: “It is, therefore, most respectfully prayed that in the interest of justice, this Hon'ble Court may be pleased to :
(a) Pass a Decree for Possession in favour of the plaintiff and against the defendant in respect of suit property i-e. Room No.10 (Pvt) at first floor and Room No.17 (Pvt) at first and second floor forming part of property bearing No.11212, Gali Kaptan Wali, Dori Walan, Karol Bagh, New Delhi, as shown in red colour in the site plan attached herewith;
(b) Pass a Decree of Permanent Injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, representatives and associates, etc. etc. from creating any third party interest and parting with the possession of the suit property i.e, Room No.10 (Pvt) at first floor and Room No.17 (Pvt) at first and second floor forming part of property bearing No.11212, Gali Kaptan Wali, Dori Walan, Karol Bagh, New Delhi, as shown in red colour in the site plan attached herewith;
(c) Award damages/mesne profits at the rate of Rs. 15,000/- (Rupees fifteen thousand only) per month with interest @ 15% p-a. in favour of the plaintiff and against the defendants towards use and occupation charges in respect of suit property from the date of filing of the suit till vacation of the suit property;
(d) award costs of the suit in favour of the plaintiff and against the defendant; Pass any other and further relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendant.”
5. Proceedings in the suit commenced and despite service the Defendant did not appear. The Defendant was accordingly proceeded ex-parte on 2nd May, 2015. On 28th September, 2015, the Defendant was present in court along with his counsel and moved an application under Order IX Rule 7 of CPC. The said application was dismissed on 21st January, 2016.
6. The Pl
