Mahant Sharda Ram v. D.D.A.

1. I have heard the learned counsel for the appellant. The learned counsel has not been able to make out any substantial question of law in the present appeal.

2. Briefly stated the facts of the case are that the appellant Mahant Sharda Ram (since deceased), now represented by his wife and son filed a suit for declaration against the respondents way back on 16.4.1966. The declaration which was sought by Mahant Sharda 2013:DHC:990 Ram was that the land situated in Khasra no.148, Min. situated at Bela Estate, Delhi comprising of 4 bighas 1 biswas pukh according to Jamabandi F 1952-53, is a Wakf property which was originally gifted to Mahant Baij Nath, son of Mahant Raghunath Dass, ancestor of the deceased plaintiff by Shah Alam the Second, in Hijri in 1189. It was alleged that the present appellant was sought to be dispossessed from the said land in question by the respondent/DDA and therefore, the suit was filed.

3. The suit was dismissed in default on 25.5.1978. An application u/O 9 Rule 9 CPC was filed by Mahant Sharda Ram for restoration of the suit on 27.5.1978. On the said application, the following issues were framed by the trial court, on 16.1.1980:-

(i) Whether there is „sufficient cause‟ for restoration of suit?

(ii) Relief.

4. The matter was listed for evidence of Mahant Sharda Ram but unfortunately before any evidence could be led, Mahant Sharda Ram expired on 29.3.1982. An application u/O 22 Rule 3 CPC was filed for bringing his legal heirs i.e. his wife and children on record.

5. **It may be pertinent here to mention that the brother of Mahant Sharda Ram, one Mahant Raje Lal had also filed an application under Order 22 Rule 3 read with Order 22 Rule 10 CPC for being impleaded as the legal heir of Mahant Sharda Ram. Necessary orders were passed by the trial court which was taken up to the High Court and ultimately, the High Court had observed that in case the legal heirs namely, the widow and the children of Mahant Sharda Ram (since deceased) do not appear, in that eventuality, brother of the deceased will be heard on the merits of the case at the stage of final hearing. All these points may not be very relevant for the decision of the present appeal but the fact of the matter remains that sufficient number of opportunities were given to the deceased/plaintiff as well as his legal heirs to adduce evidence in pursuance to the issues framed with regard to proving of ‘sufficient cause’ for non appearance when the suit was dismissed for non prosecution.

6. The appellate Court had noted that as many as ten opportunities were given, but as no evidence was adduced, the learned trial court dismissed the application under Order 9 Rule 9 CPC seeking restoration of the suit.

7. Feeling aggrieved by the order dated 30.9.1999 passed by the Civil Judge rejecting the application of the legal heirs of Mahant Sharda Ram, they assailed the said order and filed an appeal before the Additional District Judge, Delhi, bearing as RCA no.149/99. This appeal was also dismissed on 15.10.2003 which has resulted in filing of the present regular second appeal by the appellant.

8. The learned counsel for the appellant has been heard sufficiently. He has not been able to make out any substantial question of law from the present appeal.

9. The learned counsel has drawn the attention of the Court to three questions purported to have been framed in the appeal, which reads as under:- “(a) Whether when the case is not fixed for evidence, then the appellants should bring witness or put themselves in the witness box when the case is not fixed for evidence. (b) Whether the ld. Court below dismissed the application under Order 9 Rule 9 CPC without considering merits in the application that the suit was dismissed in default on 25.5.78 and the application was filed on 29.5.78 along with medical certificate and the ld. Court decided case on merits on the application or decided the said application for not leading evidence. It is also a substantial question of law which has not been dealt by both the ld. Courts below.

(c) Whether both the ld. Courts below have not appreciated that once order has been passed that if the appellants could not prosecute the case, an opportunity is granted to the respondents no.2 to 4 herein to prosecute the case. However, no opportunity was granted by both the courts below to the applicant Raje Lal/his legal heirs i.e. respondents no.2 to 4 herein and this is also a substantial question of law which has also not been dealt by both the courts below.”

10. All the three questions which are formulated hereinabove, are essentially questions of fact and not questions of law. It is very unfortunate that a suit which was filed in 1965 was not prosecuted by the appellants earnestly and it took them almost 2 decades to get the application for restoration decided in 1998 when the suit had been dismissed in default in 1978. We are already almost 47 years down the line from the date of filing of the suit and even the issues in the main suit have still not been drafted. It clearly shows the gross negligence of the deceased plaintiff and thereafter, by his successor in interest in pursuing the matter. Moreover, there is concurrent finding by the Courts below that the appellants have not been able to show any ‘sufficient cause‘ for their non appearance and for restoration of the suit.

11. Having regard to the aforesaid, I am of the view that no substantial question of law is arising from the regular second appeal and accordingly, the same is dismissed. V.K. SHALI, J. FEBRUARY 21, 2013 RN