RSA 292/2016

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 1^st October, 2018.

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RSA 292/2016

MAHESH KARWAL

..... Appellant

Through:

Mr. Kamal Kapoor, Adv.

Versus

SATYA DEVI

..... Respondent

Through:

Mr. Rajesh Karwal, son of the

respondent.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This Regular Second Appeal under Section 100 of the Code of Civil

Procedure, 1908 impugns the judgment and decree [dated 29^th April, 2016 in

RCA No.13/2014 (Unique Case ID No.0121002014) of the Court of

Additional Senior Civil Judge] allowing the First Appeal under Section 96 of

the CPC filed by the respondent / plaintiff against the judgment and decree

[dated

11^th

February,

2014 in

Suit

No.1/2013

(Unique

ID

No.02401C0002142013) of the Court of Civil Judge-01 (West)] of dismissal

of the suit filed by the respondent / plaintiff for mandatory injunction

directing the appellant / defendant to vacate the room, attached latrine in

property bearing No.5/100, Top Floor (Third Floor), near Kawatra Tent

House, Subhash Nagar, Delhi, and, for permanent injunction restraining the

appellant / defendant from interfering with peaceful possession of the

respondent / plaintiff of the remaining property and / or from in any manner

dealing with the property. Resultantly, the First Appellate Court passed the

RSA 292/2016

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decree in favour of the respondent / plaintiff and against the appellant /

defendant as sought.

2. This appeal came up first before this Court on 28^th September, 2016

when, on the contention of the counsel for the appellant / defendant that the

defence of the appellant / defendant was of the appellant / defendant having

bought the property from his own monies and in the name of the respondent /

plaintiff on account of the respondent / plaintiff being the mother of the

appellant / defendant and that the case was covered by Section 4(3)(b) of the

Benami Transactions (Prohibition) Act, 1988, notice of the appeal was

ordered to be issued, execution of the judgment and decree stayed and the

trial court record requisitioned. The appeal was thereafter adjourned from

time to time, mostly on the request of the counsel for the appellant /

defendant. The appeal was listed last before this Court on 27^th September,

2018 when the advocate for the appellant / defendant again did not appear

and sent a request for passover. Observing, that the appellant / defendant,

after taking ex parte stay of judgment and decree impugned and without

even any substantial question of law, which the sine qua non for entertaining

a Second Appeal, having been framed, could not so perpetuate the interim

order and further observing that seeing the cause list of this Court, the

advocate for the appellant / defendant would have known that the matter if

passed over would not reach again, while adjourning the appeal to 17^th

January, 2019, the interim order was vacated, preserving the rights of the

appellant / defendant of restitution in the event of appeal succeeding. The

counsel for the appellant / defendant appeared subsequently and on his

request the matter was posted for today.

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3. The counsel for the appellant / defendant has been heard and the trial

court record perused to gauge whether the appeal raises any substantial

question of law.

4. The argument of the counsel for the appellant / defendant, raised on

the date when notice was issued as well as today is (i) that the appellant /

defendant, with his own monies purchased the property aforesaid in the

name of his mother i.e. the respondent / plaintiff; (ii) that the respondent /

plaintiff is thus the benami owner of the property and the appellant /

defendant is the real owner of the property; (iii) that the Suit Court

appreciated the said defence of the appellant / defendant and upholding the

same, dismissed th