- (1.) This is a regular second appeal filed by the appellant against the judgment dated 18.8.2007 dismissing RCA No.21/2005 titled Sh.Vijay Prakash Gupta (deceased) Thr. LRs Vs. Sh.J.N.Prasad (deceased) Thr. LRs.
(2.) Briefly stated the facts of the case are that the respondent/J.N.Prasad (since deceased) had filed a suit for permanent and mandatory injunction against the appellant(since deceased) and against the respondent nos. 6 and 7 in respect of a godown situated at the back side of shop No.3356-7, Hauz Quazi, opposite Police Station no.2, Delhi-06 and the staircase leading towards the said godown. It was alleged in the plaint that originally M/s Ram Richpal Mal Ghasi Ram were the tenants in the suit premises. The respondent had filed an eviction petition u/S 14(1)(b) of the Delhi Rent Control Act against the said tenants. After the decision on the said matter, M/s Ram Richpal Mal Ghasi Ram filed an appeal before Rent Control Tribunal bearing No.618/1974 titled M/s Ram Richpal Ghasi Ram Vs. Sh.Jagan Nath Prasad. The said appeal was compromised on 25.1.1974 and according to RTI, the plaintiff nos.2 and 3(respondent nos.6 and 7 in the present case) and the appellant (since deceased) became the joint tenants with respect of the suit property. It was alleged that the respondent no.1 was entitled to build the first floor of the suit premises i.e. tenanted godown and he was also entitled to widen the staircase upto two feet without any interference from the parties. Since they were restrained, accordingly, the suit was filed.
(3.) The aforesaid suit was contested by the appellant and the respondent nos.6 and 7, however, after filing an application under Order 12 Rule 6, CPC and hearing arguments, the trial court passed a decree in favour of the respondent no.1, stating that the appellant and the respondent nos. 6 and 7 shall remove their goods from the tenanted godown in order to facilitate the respondent no.1 to raise the said construction in the said godown and in case the appellant finds any illegal construction, he can approach to the authorities. This judgment and decree was passed on 22.1.2003 whereby the suit was decreed against the appellant (since deceased represented through LRs) and respondent no.6 and 7. The appellant before filing the appeal filed an application u/S 151 CPC before the Civil Judge for recalling of that order, which was also dismissed. Thereafter, the appeal was filed after expiry of more than 2 years on 29.4.2005 along with an application Section 14 of the Limitation Act. It was alleged in the application that the judgment and the decree dated 22.1.2003 was passed and the period of limitation expired on 21.2.2003. But as a matter of fact, on 22.1.2003 when arguments were heard in the pre lunch session, the matter was reserved for orders and the appellant was asked to come on 21.1.2003. It was alleged that on 21.1.2003, the case was listed in the daily cause-list at serial No.30. All cases were typed except serial no.30, wherein the particulars were hand written. It was also alleged that the appellant contacted the Reader, who told him the next date of hearing as 5.3.2003. The appellant is stated to have been informed about the next date of hearing to his counsel after which on account of illness, he was admitted to hospital on 23.1.2003 and remained there till 1.2.2003. He requested his counsel to inspect the file and prepare the case for 5.3.03. On inspection, it was learnt that the decree had been passed on 22.1.2003. It was stated that on inspection, it was revealed that on 22.1.2003, there was an impression of rubber stamp on the order sheet and the date was written wrongly as 22.1.2003 which was later on scored off. It was stated that the appellant was accordingly constrained to file an application u/S 151 CPC for recalling of the order dated 22.1.2003 on the basis of which the court originally stayed the judgment and decree but ultimately the application was dismissed on 16.4.2005, whereupon the appellant was constrained to file the present appeal on 29.4.2005 and thus there was a delay of more than 2 years. The appellant has contended that the aforesaid delay had taken place as a bona fide mistake on the part of the appellant in pursuing the matter before the trial court and since this has been sufficiently explained by the appellant, the said delay may be condoned and the judgment and decree be set aside. ;