MS. KRISHNA & ANR. v. SMT. SHOMA DEVI

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. + RSA No.78/2014 and C.M. No.4700/2014 (stay)

2. This Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is filed against the judgment of the first appellate court dated 13.12.2013. 2014:DHC:1386

3. Trial court had decreed the suit for possession filed by the plaintiff-mother against the appellants/defendants/daughters under Order 12 Rule 6 CPC inasmuch as the appellants/defendants admitted that mother was the owner of the property and the only defence was that the appellants/defendants were not licencees in the suit property as claimed by the mother-plaintiff. Trial court rightly held the appellants/defendants to be gratuitous licencees as they were accordingly allowed to stay in the suit property only because they were daughters. Trial court also refers to harassment of mother-plaintiff by the appellants filing police complaints and complaints to the State Commission for women. Trial court has also referred to the fact that earlier judgment obtained by the appellants/defendants was only of injunction against being dispossessed without due process of law, and the subject suit was for dispossession of the appellants/defendants in accordance as per the process of law of filing of the suit for possession.

4. The first appellate court has dismissed the appeal on account of the same having been filed with delay of about six months i.e 170 days and that no sufficient grounds were given giving reasons as to why this delay was there and the same being sufficiently explained.

5. Ordinarily, Courts would consider liberally the issue of condonation of delay, however, I have deliberately referred to the judgment of the trial court on merits because the object of allowing condonation of delay is to permit arguments on merits in a case where at least one substantial argument would be urged on behalf of the appellants/defendants for being considered by the courts. I may note that the appellants/defendants, and probably deliberately, have not filed in this appeal the written statement in the suit and which would have shown the admission for the suit to be decreed under Order 12 Rule 6 CPC. However, counsel for the appellants/defendants has gone through the written statement and has failed to point out to me any defence of any alleged family settlement which is pleaded before this Court, and the said defence hence being an entitlement of the appellants/defendants to stay in the suit property. Therefore, once it is admitted that the respondent/plaintiff/mother is the owner, and appellants were only gratuitous licencees on account of their relationship with the respondent/plaintiff/mother, the suit for possession was rightly decreed under Order 12 Rule 6 CPC.

6. So far as the judgment of the first appellate court is concerned, it is seen that the first appellate court notes that the contention of the appellants/defendants being in ignorance of the suit being decreed under Order 12 Rule 6 CPC on 30.3.2013 is misconceived because arguments were heard on 28.3.2013 in the presence of the appellants. It is not that the appellants are uneducated and illiterate persons. Also, the first appellate court notes that appellants have otherwise been appearing in the court. Accordingly, the first appellate court rejects the contention of the appellants that they were not aware of the passing of the judgment under Order 12 Rule 6 CPC dated 30.3.2013 on the subsequent dates fixed before the trial court i.e 9.5.2013 and 10.7.2013. Appeal alongwith application for condonation of delay was filed on 19.10.2013 against the judgment dated 30.3.2013.

7. I do not find any illegality in the conclusions arrived at by the first appellate court of sufficient cause not existing for condoning the delay, more so in the facts of the present case when it is more than clear that the appellants/defendants have no defence on merits. As already stated, the judgment of the trial court under Order 12 Rule 6 CPC notes that various police complaints and complaints to the State Commission for Women were filed by the appellants/defendants against the mother and which show their inter se strained relations and the requirement to file the subject suit for possession against the appellants/defendants.

8. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.

MARCH 12, 2014 VALMIKI J. MEHTA, J. Ne