Banarsi Dass vs Municipal counsil

L.N. Mittal, J.

CM No.1507-C of 2010

For reasons mentioned in the application which is accompanied by affidavit, delay of 60 days in filing the appeal is condoned.

Main Appeal.

Plaintiff-Banarsi Dass, having lost in both the Courts below, has filed the instant second appeal.

Appellant-plaintiff filed suit against defendant-respondent-Municipal Council, Ambala Sadar for mandatory injunction directing the defendant to return khokha rehri of the plaintiff alleging that the defendant''s officials in the year 1991 illegally and forcibly took away the khokha rehri of the plaintiff during the pendency of his previous suit for permanent injunction. The defendant failed to return the same despite demands.

The defendant broadly denied the plaint allegations. It was denied that defendant''s officials took away khokha rehri of the plaintiff. It was also pleaded that particulars of the previous suit have not been given. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Ambala Cantt. vide judgment and decree dated 18.03.2009 dismissed the plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Ambala vide judgment and decree dated 18.07.2009. Feeling aggrieved, plaintiff has filed the instant second appeal.

I have heard learned Counsel for the appellant and perused the case file.

At the outset, it has to be noticed that the instant suit filed by the appellant is hopelessly barred by limitation. Khokha rehri of the plaintiff-appellant was allegedly taken by officials of defendant-respondent in the year 1991 whereas the instant suit was instituted on 12.04.2005 i.e after 14 years. Consequently, the suit has been rightly held to be hopelessly barred by limitation.

In addition to the aforesaid, the plaintiff except mentioning the year 1991 when his khokha rehri was allegedly taken away by officials of the defendant, did not mention any date or month thereof. There is also no cogent evidence to depict that the officials of the defendant had actually taken away khokha rehri of the plaintiff.

Apart from it, plaintiff-appellant pleaded that in his previous suit for permanent injunction, he had moved application for amendment of plaint to seek relief of mandatory injunction regarding return of khokha rehri. However, it is not mentioned as to what was the ultimate fate of the said application for amendment of plaint filed in the previous suit or what was the fate of previous suit itself. Learned Counsel for the appellant has, however, shown copy of order dated 02.02.1999 passed by learned Civil Judge (Junior Division), Ambala Cantt. whereby case No. 621/28.11.1991 was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure. However, even after dismissal of the said suit, the instant suit was filed more than six years thereafter. Moreover, since the said suit was dismissed in the presence of counsel for respondent, second suit is not maintainable.

For the reasons aforesaid, I find no merit in the instant second appeal, which is in fact frivolous one. No question of law, much less substantial question of law, arises for determination in the instant second appeal. I am not imposing costs on the appellant for filing this frivolous appeal because the appeal has been filed through counsel engaged by Legal Services Authority. The appeal is dismissed in limine being devoid of any merit.