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Judgment
C.M. Appl. No. 13880/2017 (for exemption)
Exemption allowed, subject to all just exceptions.
C.M. stands disposed of.
RSA 112/2017 and C.M. Appl. Nos. 13879/2017 (for condonation of delay of 130 days in filing the appeal) & 13878/2017 (for stay)
This Regular Second Appeal under Section 100 of the
Code of Civil Procedure, 1908 (CPC) impugns the concurrent
judgments of the courts below; of the Trial Court dated 4.3.2015 and
the First Appellant Court dated 14.7.2016; by which the courts below
have decreed the suit for damages at Rs.10,000/- per month with effect
from 1.5.2006 with respect to the suit property being no. 1114/11, 2 nd
floor, right side, Govindpuri, Kalkaji, New Delhi-110019 comprising
of two bed rooms, one drawing/dining room, two toilets/bathroom and
one kitchen. I may note that no issue remains as regards the handing
over of possession as per the decree passed by the trial court, inasmuch
as, the appellant has accepted the decree for possession.
The first appellate court has given two salient reasons for
agreeing with the trial court for decreeing of the suit for damages at
Rs.10,000/- per month. The first reason given by the first appellate
court is that the deposition evidence of the PW-1 with respect to rate of
mesne profits/damages was not subject to cross-examination by the
appellant/defendant. The second reason given is that the
appellant/defendant led no evidence whatsoever.
A civil suit is decided on the balance of probabilities. A
second appeal under Section 100 CPC is only entertained when there is
a substantial question of law. Once two views are possible and one
view is taken by the courts below and which is based on the two valid
reasons stated above with respect to lack of cross-examination by the
appellant/defendant on the evidence led by the respondent/plaintiff as
regards the rate of damages and also that appellant/defendant led no
evidence whatsoever, in my opinion, the impugned judgments cannot
be faulted with.
In view of the above, no substantial question of law arises
and therefore this second appeal is dismissed, leaving the parties to
bear their own costs.