JUDGMENT

Prathiba M. Singh, J. (Oral) CM APPL. 7892/2018(CM For Restoration)

1. This is an application under Order XLI Rule 19 filed on behalf of Appellant/Defendant (hereinafter Defendant). Counsel for the Defendant has submitted that due to his ill health, he could not appear on 15th February, 2018. Therefore, the judgment passed on 15th February, 2018 deserves to be recalled. A perusal of the order sheet of this file shows that as recorded in order dated 16th February, 2017 repeated adjournments were sought by the Defendant. The said order dated 16th February 2017, reads as under:

"1. Proxy counsel appearing for the counsel for the appellant seeks an adjournment on the ground that the arguing counsel is in personal difficulty.

2. A perusal of the order sheets reveals that the matter has remained at the stage of admission since August, 2016. Counsel for the appellant has been accommodated for adjournment on three occasions. This is the fourth time that a request for adjournment is being made and that too, at the stage of admission.

3. While accommodation the counsel for the appellant for the last time, list on 21.04.2017 for admission.

4. It is made clear that if the counsel for the appellant is not available on the next date of hearing, this Court would be compelled to dismiss the present petition for non-prosecution."

2. Again, on 21st April, 2017 adjournment was sought by the Defendant. On 15th February, 2018 the matter was passed over on the first call. There was no appearance even on the second call. None appeared for the Defendant and no request was even made on the ground of ill-health of the Counsel.

3. Thereafter this Court proceeded to hear arguments on behalf of the Plaintiff/Respondent (hereinafter Plaintiff) and passed orders.

4. On 28th February, 2018, the counsel for the Defendant relied upon two judgments of the Supreme Court Ghanshyam Dass Gupta v. Makhan Lal, (2012) 8 SCC 745 (hereinafter referred as Ghanshyam Dass Gupta) and UNA Co-operative Group Housing Society Ltd. v. Ravindra Brothers, 142 (2007) DLT 774(DB) to submit that the appeal could have only be dismissed for non-prosecution and not on merits. Considering the judgment of the Supreme Court in Ghanshyam Dass Gupta (supra), the Appeal is restored and this Court has heard the parties on the merits of the appeal. RFA 588/2016

5. The present appeal arises out of the impugned judgement and order dated 29th March, 2016 by which the suit for specific performance in respect of property bearing No.155/1 out of Khasra No. 22/12 measuring 120 sq. yds. Village Burari, Abadi Known as Kamalpur, Delhi (hereinafter `suit property'), was decreed in favour of the Plaintiff. The Trial Court also granted a decree of permanent injunction restraining the Defendant from selling, alienating or creating any third-party interest in the suit property.

6. The case of the Plaintiff is that the Defendant had executed various documents by which the suit property was transferred in his favour. Since the suit property is located in Burari which is an unauthorised colony, hence registration of documents was not possible. Accordingly, the documents executed by the Defendant vest the ownership of the suit property in the Plaintiff.

7. The case of the Plaintiff is also that the said documents were executed by the Defendant because of a large sum of money which was to be paid by the Defendant to the Plaintiff. The counsel for the Plaintiff submits that the notice dated 31st March, 2011 gives the background to the transaction but the documents lastly executed are relied upon in support of the relief of possession and specific performance.

8. The main submission made by the Defendant is that the legal notice dated 31st March, 2011 Ex.PW-1/12 refers to a transaction of 2005. It is his submission that this transaction has not been pleaded in the plaint and hence the Plaintiff is guilty of suppression. He further submits that the documents which are relied upon by the Plain