Har Pyari v. Geeta Mishra

1. This is a regular second appeal filed by the appellant under Section 100 read with Section 151 CPC against the judgment dated 26.9.2012 passed by the learned Additional District Judge dismissing the appeal of the appellant and upholding the judgment dated 22.12.2011 passed by the learned trial court.

2. The only grievance which the learned counsel for the appellant has raised before this court is that principles of natural justice have not been followed in the instant case. It has been urged that the appellant was not 2013:DHC:1261 given sufficient opportunities for adducing her defence and consequently, the judgment and the decree passed by the trial court on 22.12.2011 and upheld by the first appellate court on 26.9.2012, is not sustainable in the eyes of law.

3. I have carefully considered the submissions made by the learned counsel for the appellant. Briefly stated the facts of the case are that the respondent/plaintiff had filed a suit bearing No.854/2007 for possession against the appellant/defendant in respect of a plot of land measuring 140 square yards bearing Municipal No.M-77, situated within the area of Village Nawada (now known as Shyam Park Extension), Uttam Nagar, New Delhi-59. The respondent/plaintiff was claiming herself to be the owner of the said property while as the allegations against the appellant/defendant were that she was living in the adjoining property No.M-76, Shyam Park, Extension, Nawada, Uttam Nagar and she had illegally trespassed into the suit property. The appellant herein, in response to the notice, had put in appearance and contested the suit. She claimed herself to be the tenant under one Om Parkash Mishra in respect of the suit property.

4. On the pleadings of the parties, following two issues were framed:- “1. Whether the plaintiff has no locus standi to file the instant suit? OPD

2. Whether the plaintiff is entitled to decree for possession as claimed? OPP

3. Relief.”

5. The respondent/plaintiff, in support of her case, examined five witnesses. The appellant herein entered into her defence and filed her own affidavit by way of evidence. Despite the fact that several opportunities were given to the appellant to appear for the purpose of cross-examination, she failed to do so. Ultimately the trial court was compelled to close her evidence on 17.12.2011. Since she did not appear for cross examination, obviously her statement could not be read in evidence. Thereafter, the matter was heard and the trial court passed the judgment and decree of possession in favour of the respondent/plaintiff on 22.12.2011.

6. Feeling aggrieved, the appellant filed the first appeal bearing R.C.A. No.11/2012 titled Har Pyari vs. Geeta Mishra which came to be listed before the learned Additional District Judge, East District, Karkardooma Courts, Delhi. Before the first appellate court also, one of the main submissions which was urged vehemently was that the trial court did not give an opportunity to the appellant to lead evidence to prove her case. The first appellate court also perused the trial court record and came to the conclusion that sufficient opportunities have been given to the appellant to lead her evidence and if she has chosen not to appear then she has done so at her own peril. Accordingly, the said appeal was dismissed on 26.9.2012.

7. Still not feeling satisfied, the present regular second appeal has been filed by the appellant.

8. According to Section 100 CPC, the second appeal is permissible only when a substantial question of law is involved. The only grievance of the appellant in the present second appeal is that the principles of natural justice have not been complied with inasmuch as sufficient number of opportunities have not been given to her to lead her evidence. The two courts below have returned a concurrent finding holding that despite sufficient opportunities having been given to the appellant, she has chosen not to appear after filing of her affidavit so that she could be subjected to cross-examination. It is unbelievable for this court to assume that sufficient number of opportunities have not been given to the appellant when both the Courts have noted so after reference to the record.

9. The learned counsel for the appellant has contended that nonappearance of the appellant on 17.12.2011 was on account of issuance of non-bailable warrants against her in another criminal case and that she got anticipatory bail only on 23.12.2011.

10. In any case, these facts are totally immaterial for the purpose of arguments when the courts below have specifically noted down that several opportunities were given to the appellant to adduce her evidence. A trial of case cannot be kept open endlessly.

11. In view of the above, since no substantial question of law is involved, the appeal is dismissed. V.K. SHALI, J. MARCH 07, 2013 ‘AA’