Ejaz Ahmed Aslam v. Mohammad Azim Ahmed

RAJIV SAHAI ENDLAW, J. OCTOBER 04, 2018 "bs"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 4th October, 2018 + RSA 118/2018 EJAZ AHMED ASLAM ..... Appellant Through: Mr. Sachin Datta, Sr. Adv. with Mr. Abhishek Kumar, Ms. Rijuta Mohanty and Ms. Prity Sharma, Advs. Versus MOHAMMAD AZIM AHMED ..... Respondent Through: Mr. S.D. Singh, Mr. Rahul Kumar Singh, Mr. Dhiraj Kumar & Mr. Jitender Singh, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 20th March, 2018 in RCA No.61419/2016 of the Court of Additional District Judge-06 (Central)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 21st December, 2011 in Suit No.546/2003 of the Court of Civil Judge-02 (Central)] of dismissal of suit filed by the appellant/plaintiff for recovery of possession of "premises at Khasra No.223 min. measuring 185 sq. mtrs. Situated at Abul Fazal Enclave, Okhla, Jamia Nagar, New Delhi" and for recovery of damages/mesne profits for the period prior to institution of the suit as well as for future i.e. till the date of delivery of possession. 2. The appeal came up first before this Court on 27th August, 2018, when finding that the respondent/defendant in the suit had made a counter-claim, of declaration of ownership of the immoveable property for which the suit for recovery of possession and mesne profits was filed and the Suit Court, while dismissing the suit of the appellant/plaintiff had allowed the said counter-claim and passed a decree of declaration declaring the respondent/defendant as owner of the subject property and further finding that the appellant/plaintiff had preferred a First Appeal only against the judgment and decree of dismissal of suit and not against the judgment and decree allowing the counter-claim of the respondent/defendant, it was enquired from the senior counsel for the appellant/plaintiff, whether not the claim of the appellant/plaintiff in this Regular Second Appeal against the judgment and decree of dismissal of First Appeal impugning only the judgment and decree of dismissal of suit, was barred by res judicata, in view of the decree in the counter-claim declaring the respondent/defendant as owner of the property having attained finality. Attention of the senior counsel for the appellant/plaintiff on 27th August, 2018 was also drawn to pages 346 and 363 of the paper book, being the title and prayer clause in the memorandum of the First Appeal preferred by the appellant/plaintiff, and which clearly showed the challenge therein to be only of the decree of dismissal of suit and not to the decree allowing the counter-claim of the respondent/defendant. 3. On request of the senior counsel for the appellant/plaintiff, the hearing was adjourned to today. 4. Today, the senior counsel for the appellant/plaintiff has drawn attention to page 347 of the paper book being the memorandum of the First Appeal and in which in the very first paragraph, it was stated that the Suit Court in its judgment completely disregarded the evidence and misread the relevant clause, while decreeing the counter-claim and dismissing the suit. 5. The same also, in my view, does not constitute a challenge to the decree in the counter-claim. I reiterate that in the title of the First Appeal, it was stated that it was against the judgment and decree of dismissal of suit and in the prayer clause, only setting aside of the judgment and decree of dismissal of suit, was sought. Paragraph 1 of the memorandum of First Appeal to which attention is drawn is only by way of narrative and otherwise attention is not drawn to any of the grounds of the memorandum of the First Appeal in which the decree of declaration in the counter-claim in favour of the respondent/defendant may have been impugned. 6. The senior counsel for the appellant/plaintiff in this regard has also drawn attention to Cholapilakkal