Shri Ranjit Kumar Sandhir vs Shri Bhag Singh

Indermeet Kaur, J.—There are two orders which are impugned before this Court. The first order is dated 17.12.1999 whereby the application filed by the petitioner (Ranjit Kumar Sandhir) seeking a restoration of his appeal which had been dismissed vide an order dated 04.10.1999 had been declined. The second order impugned is the order dated 17.05.2003 vide which the order on the review petition dated 25.07.1999 had been set aside. The petitioner is aggrieved by both the aforenoted orders. Record shows that the petitioner and Bhag Singh (respondent) had entered into an agreement to sell dated 17.11.1972 by virtue of which the respondent had agreed to sell his property i.e. property bearing No. 229 (Old), 371 (new) Sant Nagar, New Delhi for a consideration of Rs. 17,000/- of which an initial amount of Rs. 10,000/- was paid and the balance of Rs. 7,000/- was yet payable; it is not in dispute that pursuant to this agreement dated 17.11.1972, the petitioner has been put in possession of the suit premises and he is in possession of the premises as on date.

Record further shows that a suit for declaration had been filed by the petitioner in the year 1976 seeking the protective umbrella of Section 53-A of the Transfer of Property Act which suit stood dismissed on 14.10.1980. A regular second appeal filed against the said judgment and decree was disposed of on 20.04.1982 with liberty granted to the petitioner to file a fresh suit on the same cause of action i.e. suit for specific performance.

Record further shows that instead of filing a suit for specific performance, a suit for recovery of Rs. 39,000/- had been filed by the present petitioner; the impugned orders have arisen out of the aforenoted suit. This claim was based on the clause contained in the agreement dated 17.11.1972 that in case the agreement is not honoured, the petitioner would be entitled to damages @ Rs. 1,000/- per month from the respondent.

In the written statement filed to the aforenoted suit, the plea of resjudicata and bar of Section Order 2 Rule 2 of the CPC (hereinafter referred to as the ''Code'') was set up by the respondent; he had also filed a counter claim seeking possession of the suit premises.

The judgment and decree dated 22.05.1999 had dismissed this suit; preliminary issue framed on the point of resjudicata and Order 2 Rule 2 of the Code had been decided in favour of the respondent; suit accordingly stood dismissed.

The appeal against the said judgment and decree dated 22.05.1999 was never heard on merits; it was dismissed on 04.10.1999 on the premise that the Court fee which was required to be paid by the appellant had not been paid; the application seeking restoration of this appeal had been dismissed by the first impugned order dated 17.12.1999.

The explanation of the counsel for the petitioner on this count is that his review petition seeking a review of the judgment and decree dated 22.05.1999 had been allowed on 25.07.1999 and since this review had been allowed, he did not pursue the appeal which was accordingly dismissed on 04.10.1999 and reaffirmed on 17.12.1999.

The review petition against the judgment and decree dated 22.05.1999 had been allowed on 25.07.1999 and the dismissal of the suit filed by the petitioner had been set aside; counter claim which had been decreed in favour of the respondent had also been set aside.

Record further shows that the revision petition filed against the order dated 25.07.1999 was allowed on 17.05.2003; this is the second impugned order.

The gamut of this record shows that the petitioner has for one reason or the other not been given a right of hearing before the first appellate Court against the judgment and decree dated 22.05.1999. The contention of the respondent is that if the matter is remanded back, he would suffer prejudice as the matter is very old and for one reason or the other, it is a delaying tactic. This submission of the respondent may not be without complete force yet this Court cannot lose sight of the fact that a valuable right which is a right of a first appeal has been lost to the petitioner and the explanation tendered by him is also not implausible; his contention being that he was not pursuing his appeal only for the reason that his review petition had been allowed on 25.07.1999 and he had already got the relief which he was seeking by way of an appeal. It is a separate matter that the revision petition filed against the review order dated 25.07.1999 was allowed by the second impugned order which is dated 17.05.2003.

In this background, it is a fit case where the matter should be remanded back for hearing by the first appellate Court against the judgment and decree dated 22.05.1999 as the petitioner who is admittedly in possession of the suit premises since the year 1972 would lose a valuable right in case he is not allowed to plead his case on merit. Matter is accordingly remanded back to the first appellate Court to hear the appeal against the judgment and decree dated 22.05.1999.

Put up for appearance before the first appellate Court on 28.03.2012. Both the petitions are disposed of in the above terms.