Pitamber and Another vs Rahis Ahmed

Indermeet Kaur, J.

C.M. Appl.10561/2010 (for delay) in R.S.A.109/2010

Application is not pressed. Dismissed as withdrawn.

R.S.A.109/2010

This is a second appeal preferred against the impugned judgment dated 1.4.2010 wherein the appeal filed by the appellant seeking setting aside of the order dated 19.12.2009 passed by the Civil Judge on the application under Order 9 Rule of the CPC (hereinafter referred to as ''the Code'') read with Section 5 of the Limitation Act had been dismissed.

Briefly stated, the facts of the case are as follows:

The plaintiff had filed a suit for possession and mesne profits. The defendants/appellants had been served and they had put in their appearance on 14.7.2008; written statement had been filed on 18.7.2008; issues were framed on 22.10.2008; matter was adjourned for the evidence of the plaintiff to 11.12.2008 on which date two witnesses on behalf of the plaintiff had filed their evidence by way of affidavit. None had appeared for the appellant on the said date. No adverse order was passed against the defendant; matter was adjourned for cross-examination of the witnesses of the plaintiff for 23.4.2009 on which date since the defendants had again failed to appear, the defendants had been proceeded ex-parte at 2.30 p.m. Evidence was closed; the matter was fixed for final arguments for 29.5.2009; judgment was delivered on 10.8.2009. Suit of the plaintiff had been partly decreed for possession and mesne profits.

On 14.12.2009, an application under Order 9 Rule 13 of the Code had been filed for setting aside the judgment and decree. Along with the said application an application u/s 5 of the Limitation Act had also been filed. The contention of the learned Counsel for the defendant/appellant was that he was suffering from tuberculosis and as such he was not in a position to appear in the court. Further, the father of the defendant had expired and he was under depression and there was no one to look after his minor children and his wife. Trial court had dismissed both the applications for condonation of delay as also the application filed under Order 9 Rule 13 of the Code on 19.12.2009.

The appeal filed against the said impugned order was dismissed on 1.4.2010.

This is a second appeal. The substantial question of law has been phrased on page 4 of the appeal. On a specific query put to the learned Counsel for the appellant as to what is the substantial question of law which has arisen in the matter, he has no answer. Page 4 averring the substantial question of law only relates to matters of fact which have already been dealt with by both the courts below. The suit of the plaintiff had been decreed on the basis of the documentary evidence adduced by him i.e. the documents of the transfer of the suit premises which included Ex.PW-1/1 (colly.) relating to the transfer of suit premises by Lachchu Ram, the father of the appellant/defendant in favour of the plaintiff. Ex.PW-1/5 and Ex.PW-1/6 were the photographs of the handing over of the keys to the plaintiff by Lachchu Ram, Ex.PW- 1/D was the application filed by Lachchu Ram before the court of the Civil Judge informing the court about the transfer of suit property in favour of the plaintiff. PW-2 had witnessed the execution of the relevant documents by Lachchu Ram in favour of the plaintiff. These documents remained un-rebutted.

This Court is bound by the parameters as contained u/s 100 of the Code. It is only if a substantial question of law arises that the appeal is to be heard by the second appellate court. Neither has any substantial question of law urged before this Court and nor has any such substantial question of law arisen as is evident from the pleadings before this Court. This appeal is without any merit. It is dismissed in limine.