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2014 DIGILAW 1004 (DEL)

Rikesh Kumar Gaur v. Devi Charan Sharma

2014-03-25

VALMIKI J.MEHTA

body2014
JUDGMENT : Valmiki J. Mehta, J (Oral) C.M. No.5486/2014 (condonation of delay) 1. For the reasons stated in the application, delay of 50 days in filing the appeal is condoned. C.M. stands disposed of. RSA No.92/2014 and C.M. No.5485/2014 (stay) 2. This Second Appeal is filed impugning the judgment of the first appellate court dated 26.9.2013 by which the first appellate court has dismissed the appeal filed by the appellant herein against the judgment of the trial court dated 4.8.2012. Trial court had dismissed the suit for permanent and mandatory injunction of the appellant/plaintiff by its judgment dated 4.8.2012. 3. Suit was filed by the appellant/plaintiff claiming two reliefs. First was for value of the articles which were alleged to have been taken away by the respondent no.2/wife. Second relief was claimed with respect to an FDR lying in the joint names of the parties with the defendant no.3/bank at Haldwani, District Nainital, Uttrakhand. Respondent no.2/defendant no.2/wife in her written statement not only denied that she had not taken the articles in question but had stated that the appellant had defrauded her because appellant was already married when he married respondent no.2. Trial court has dismissed the suit including by holding that the appellant/plaintiff failed to prove the factum with respect to respondent no.2/defendant no.2/wife having taken away the goods as claimed by the appellant/plaintiff. 4. Before me, counsel for the appellant has only challenged the following portion of the first appellate court:- “The appeal stands dismissed but subject to the following modification. The impugned judgment and decree is upheld. However, considering the undertaking given by the defendant no.3, Bank and further considering the FDR being found in the joint name, the proceeds of the same be kept in abeyance till the plaintiff and the defendant no.2 get proper order from the competent court having jurisdiction at Haldwani. However, in the event of plaintiff and defendant no.2 amicably conceding to shave the proceeds equally since it was in their joint name, the Bank may release the same equally to them. In case if they do not agree to share equally, the Bank shall keep the proceeds with them till proper orders are obtained by the parties from the courts having proper territorial jurisdiction. Thus, the appeal stands disposed of. Decree be prepared accordingly. TCR be sent back. In case if they do not agree to share equally, the Bank shall keep the proceeds with them till proper orders are obtained by the parties from the courts having proper territorial jurisdiction. Thus, the appeal stands disposed of. Decree be prepared accordingly. TCR be sent back. A copy of the operative portion of the appeal be sent to defendant no.3, bank. File be consigned to Record Room.” 5. Counsel for the appellant argues that this direction given by the appellate court ought not to have been given because the same was not given by the trial court. I cannot agree. Appellate court has ample powers under Order 41 Rule 33 of Code of Civil Procedure, 1908 (CPC) to do justice and which provision applies squarely to the present case. 6. I do not find that there is any prejudice to the appellant/plaintiff inasmuch as the impugned portion of the judgment only directs that FDR be kept with the bank and be released subject to court orders or agreement between the parties, and which has been done because the courts at Delhi have no territorial jurisdiction as regards the fixed deposit which is kept with the respondent no.3/defendant no.3-bank at Haldwani, District Nainital, Uttarakhand. 7. In view of the above, no substantial question of law arises and this appeal is therefore dismissed, leaving the parties to bear their own costs.