Uma Devi v. Delhi Fruit & Vegetable Consumer Co-Op. Federation Ltd & Ors

RAJIV SAHAI ENDLAW, J. OCTOBER 08, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th October, 2018 + RSA 82/2018 & CM No.41912/2018(u/S 151 of the CPC read with Order IX Rule 9 of the CPC). UMA DEVI ..... Appellant Through: Ms. Suman Kapoor, Adv. versus DELHI FRUIT & VEGETABLE CONSUMER CO-OP. FEDERATION LTD & ORS ..... Respondents Through: None. 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 21st April, 2016 in RCA No.03/14 of the Court of the Additional District Judge-03 (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 12th December, 2013 in Suit No.264/2001 (New No.817/2002) of the Court of Senior Civil Judge (West)] of dismissal of the suit filed by the appellant/plaintiff on 25th September, 2001 for (a) mandatory injunction directing respondent/defendant no.1 to restore back the possession of Stall No.ME-12 &13, M-Block, Greater Kailash, New Delhi and to handover the articles/belongings of the appellant/plaintiff lying in the subject stall at the time the respondent/defendant no.1 took possession thereof; and, (b) permanent injunction restraining the respondent/defendant no.1 from parting with possession of the subject stall to any other person. 2. This appeal came up first before this Court on 21st May, 2018 when none appeared for the appellant/plaintiff; however in the interest of justice adverse orders were deferred and the appeal re-notified for 31st August, 2018. On 31st august, 2014 also none appeared for the appellant/plaintiff. Noticing that the appeal was accompanied with applications for condonation of delay of 314 days in filing and of 312 days in refilling thereof, the appeal was dismissed in default. 3. CM No.41912/2018 has been filed for restoration of the appeal. 4. For the reasons stated, the application is allowed and the appeal restored to its original position. 5. CM No.41912/2018 is disposed of. 6. The counsel for the appellant/plaintiff has been heard on admissibility of this Second Appeal against concurrent findings of fact of the Suit Court and the First Appellate Court. 7. I may at the outset state that the appellant/plaintiff claims to have been dispossessed on 14th May, 2001. The suit as aforesaid, was instituted after four months therefrom, on 25th September, 2001. The suit remained pending before the Suit Court for nearly twelve years and the dispossession of the appellant/plaintiff, challenged in this Second Appeal, is nearly seventeen years old. 8. The counsel for the appellant/plaintiff on enquiry states that there was no interim order in favour of the appellant/plaintiff either during the pendency of the suit or during the pendency of the First Appeal. In the said long time, others must have come into use and occupation of the subject stall and who have not been made parties at any stage of proceedings. In fact the counsel for the appellant/plaintiff states that the respondent/defendant no.1 keeps on changing the persons in occupation of the subject stall and which affirms that the appellant/plaintiff also had no right to the stall. 9. Be that as it may, this Second Appeal is not entitled to be entertained for this reason only. 10. I have enquired from the counsel for the appellant/plaintiff, the right if any of the appellant/plaintiff to the subject stall. 11. The counsel for the appellant/plaintiff states "on rental basis". 12. However on being asked to show the registered Rent Agreement entitling the appellant/plaintiff to continue in use/occupation/possession beyond the date of the dispossession, the counsel for the appellant/plaintiff states that the appellant/plaintiff used to pay Rs.500/- per day. 13. The respondent/defendant no.1(the respondents/defendants no.2 to 6 are Registrar of Co-operative Societies, Government of National Capital Territory of Delhi, Naresh Kumar, Ram Gopal and SHO PS Grea