LexD. N. JOSHI (D) THR. LRS. & OTHERS versus D. C. HARRIS & ANOTHER
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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[2017) 7 S.C.R. 326
D. N. JOSHI (D) THR. LRS. & OTHERS
v.
D. C. HARRIS & ANOTHER
(Civil Appeal No. 6139 of 2009)
JULY 03, 2017
(R. BANUMATHI AND A. M. KHANWILKA~, JJ,)
Rent control and eviction - Predecessor in title of respondent
purchased the suit premises from a person who was gifted the
C premises by the original owner - Suit premises occupied by tenant
indu,eted by original owner - Suit for. eviction by respondent -
Defendant-tenant" denied the title of respondent on the ground that
purchase of property by respondent was not based on valid gift
deed as gift deed was not accompanied by giving possession of
suit property to the donee and that donee did not have valid title of
D ownership which he could transfer to the respondent - Held: Since
defendant-tenant was in possession of suit premises, as such it was
not possible for the donor to handover physical possession of suit
premises to the donee - Therefore. constructive possession of suit
premises by donor was handed over to donee - Neither the validity
E of sale deed nor mutation entry in favour of respondent was
· challenged by the tenant - The same gift deed was challenged by
another tenant and the court had upheld the validity of gift deed
and also held that title of property had passed on to the
respondents - The said order was not challenged - Therefore, it is
just and appropriate to follow the same view - Respondent entitled
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to decree of eviction.
Code of Civil Procedure, 1908 - s.100 - Scope of - Second
appeal - Substantial question of law - Second appeal in question
was filed prior to coming into force of the C.P. C. Amendment Act,
1976 - Second appeal admitted by the Registrar of High Court on
G 20.5.1974 and was directed to be placed before the court for hearing
under Or.XL/, r. I I - Single Judge of the High Court passed an
order of admission on 7.5.1980, after the Amendment Act came into
force - But, before the appeal was taken upfor final hearing,
respondents-plaintiffs moved an application for amendment of the
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appeal memo whereby the substantial qu.e.~rions of law were
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326
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D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS
327
formulated - Single Judge allowed that applicalion on 15. 7.2006 -
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That order was not challenged by appellants-defendants and,
therefore, attained finality - Contention of appellants-defendants
that the appeal could not have been admitted without formulating
substantial question of law - Held: Not sustainable - At the relevant
time in 1976, there was no requirement to formulate substantial B
question of law in the memo of appeal - However, that deficiency
was sought to be cured by the respondents-plaintiffs by taking out
a formal application for amendment of the memorandum of appeal
and permission to urge the substantial questions of law framed in
the amendment application - After hearing both the parties, the
court, in fact, formulated the substantial question of law and C
answered the same in the impugned judgment - In that sense, it is
not a case of deciding the second appeal sans substantial question
of law - Jn the facts of the instant case, there was compliance of
s. l 00 as also Or.XLIJ - It is not open to the appellants-defendants
to now raise an issue of non{ormulation of substantial question of
law while admitting the appeal, having failed to challenge the order D
dated 7.5.1980 (admitting the second appeal) and dated 15. 7.2006
(allowing the respondents-plaintiffs to amend the memorandum of
second appeal with an observation that the court will formulate the
substantial question of law at the time of hearing of the appeal).
Dismissing the appeal, the Court
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HELD: 1. In the instant case, the order of admitting the
second appeal was passed by the Registrar on 20.05.1974. That
order, however, was passed by the Registrar in exercise of
delegated powers unde,r the High Court Rules and is not
ascribable to an order passed under Order XLI, Rule 11 of C.P.C.
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Sub-rule (1) of Rule 11 envisages fixing a day for hearing when
. the appellants or his pleader will be heard. Further, it is an
enabling provision entitling the court to dismiss the appeal. Rule
llA postulates that every appeal shall be heard under Rule 11
preferably within sixty days from the date on which the G
memorandum of appeal is filed. Rule 12 provides that if the appeal
is not dismissed after hearing under Rule 11, the court must fix a
day for hearing the appealExcerpt shown. Read the full judgment & AI analysis in Lexace.