RSA 112/2011 Page 1 of 5

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+

RSA 112/2011

%

Date of Decision: December 6, 2012

SUSHIL KUMAR GOYAL

..... Appellant

Through :

Mr. Wills Mathews with

Mr Jose Abraham & Ms Amrita

Jayan, Advs.

versus

RAM SINGH GAUTAM

..... Respondent

Through : Mr. Mir Akhtar Hussain, Adv.

CORAM:

HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

*

CM No. 12631/2011 (condonation of delay)

There is delay of 30 days in filing this appeal. In view of the

reasoning given, delay is condoned.

The application stands disposed of.

RSA 112/2011

1. By way of this regular second appeal under Section 100 of Code

of Civil Procedure, challenge has been made to the impugned judgment

dated 18.01.2011 passed by the ld. lower appellate court in RCA No.

18/2010 whereby the impugned judgment dated 07.05.2005 passed by

the ld. Civil Judge in Suit No. 43/2004 has been upheld.

2012:DHC:7288

RSA 112/2011 Page 2 of 5

2. The relevant facts for disposal of present appeal are as under:-

The appellant was the plaintiff before the ld. Civil Judge. He

had filed a suit for recovery of Rs.2,16,700/- against the

respondent/defendant. His case was that his father Sh. Sri Niwas Goel

was a tenant of respondent/defendant in respect of one shop in

premises no. 27/81, Gali no.7, Pandav Road, Vishwas Nagar, Delhi.

His father had died on 26.12.1996. It was alleged that taking

advantage of the same, the respondent/defendant broke open the locks

of the tenanted shop and committed theft of the goods belonging to the

father of the plaintiff/appellant. The plaintiff/appellant had lodged

FIR No. 179/1997 under Section 453/380 IPC against the

respondent/defendant in police station Vivek Vihar. It was alleged

that the goods were worth Rs. 1,40,000/-. The appellant/plaintiff had

submitted list of goods before the Police as well as in the trial court. In

the criminal case, the respondent/defendant was held guilty vide

judgment dated 06.01.2000 and was sentenced to SI for three months

for the offence under Section 453 IPC and also SI for three months for

the offence under Section 380 IPC. After his conviction, the

appellant/plaintiff served a legal notice dated 13.03.2000 calling upon

the respondent/defendant to return the goods or in the alternative pay

the price of the goods worth Rs. 1,40,000/- along with interest.

Despite service of notice respondent/defendant had failed to return the

goods. Accordingly, appellant/plaintiff filed the aforesaid recovery

suit.

2012:DHC:7288

RSA 112/2011 Page 3 of 5

3. The respondent/defendant had contested the suit by filing a

detailed written statement wherein he had taken the stand that the

possession of the tenanted shop was handed over on 08.10.1995 by the

father of the appellant/plaintiff of his own free will and there was no

question of breaking open the locks of the shop or theft of goods as is

alleged and the suit filed was without any cause of action. Some

preliminary objections were also taken in the written statement.

Thereafter, replication was filed by the appellant/plaintiff. The ld.

trial court framed in all nine issues. The issue no.5 was framed on the

question of limitation. The ld. Civil Judge on the basis of evidence on

record held that the theft in question was allegedly committed on

10/11.01.1997 and as per Article 68 of Schedule of the Limitation Act,

1963, the limitation of three years is provided for filing the suit and as

the suit was filed on 29.04.2000, there was delay of 3 months and 18

days in filing the suit, as such, dismi