RSA 115/2013
HIGH COURT OF DELHI
RSA No. 115/2013 30th January, 2014 GANGA SAGAR CHAURASIA ......Appellant.
Through: counsel. (appearance not given)
VERSUS
SHEELA & ORS. ...... Respondents.
Through: Mr. Nitin Sharma, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
1. On the first call, a pass-over was sought. On the second call also pass-over is prayed. It is not possible to keep on passing over matters, and counsels if they are accommodated must appear on the second call. I have therefore heard the counsel for the respondents and after perusing the record, am proceeding to decide this appeal.
2. This regular second appeal is filed by the defendant-tenant against whom the courts below have decreed the suit for recovery of rent.
3. The respondents-plaintiffs are admittedly the legal heirs of the original owner, and therefore their ownership really cannot be disputed by 2014:DHC:591 the appellant. I may note that the courts below have noted that appellant claimed ownership of the suit property, but admittedly, not a single document was filed to prove his claim of ownership of the suit property. This aspect is dealt with by the first appellate court in para-7 of the impugned judgment and the same reads as under:-
“7. Coming to the first objection, appellant’s case is that he had purchased the suit property from the defendant in 1992. Defendant as DW1 however, admitted in cross-examination that he had not filed any document of ownership of the suit property and had also not filed any suit for declaration for proving his ownership on the suit property. He has also stated that he had obtained thumb impression of the deceased Ghanshyam Dass on two papers but did not produce the same. Thus, as per record, defendant had not produced any document to show his ownership in the suit property. Further it is an admitted case of the parties that appellant/defendant had initially been inducted as tenant by Ghanshyam Dass. Death of Ghanshyam Dass is also not disputed. Plaintiffs are the L.Rs. of deceased and there is no dispute in regard to interse claim of L.Rs of the said Ghanshyam Dass. Ld. Trial Court has taken into account all relevant facts in regard to the entitlement of the plaintiffs. Defendant had not been able to show any document to prove his ownership of the suit property. The defence of the defendant was thus unsubstantiated. The Ld. Trial Court had therefore, rightly decided the issue in favour of the plaintiffs. There is thus no merit in the first objection of the appellant. (underlining added)
4. The first appellate court also rightly notes that dismissal in default of an earlier eviction petition will not operate as res judicata inasmuch as doctrine of res judicata only operates if a case is decided on merits after trial. Dismissal in default rightly has not been held a ground for filing of the present suit for recovery of the rent.
5. Finally, I may note that appellant-defendant’s evidence was closed, inasmuch as the matter was first fixed for appellant-defendant’s evidence on 4.9.2010 but no evidence was produced. On 8.7.2011 statement of DW-1 was recorded but cross-examination was deferred for 1.9.2011 when DW-1 did not appear and whereupon the evidence was closed. Considering the facts of the present case, I am of the opinion that no further opportunity is required to be given to the appellant-defendant and evidence was rightly closed.
6. In view of the above, no substantial question of law arises, and therefore, the appeal is dismissed, leaving the parties to bear their own costs.
JANUARY 30, 2014 VALMIKI J. MEHTA, J. ib