20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 492/2009
% Judgment Delivered on: 01.03.2011
PANKAJ PRAKASH ..... Appellant
Through:Mr.Amit S.Chadha, Sr.Adv. with
Ms.Kaadambari, Mr.Arun Vidyarathi &
Ms.Namitha Mathews, Adv.
versus
SARITA PERIWAL & ANR ..... Respondent
Through:Mr. Avnesh Garg, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
G.S.SISTANI, J. (ORAL)
CM No.23184/2010
1. This is an application filed by the appellant seeking clarification of the orders dated 06.08.2010 and 25.08.2010 passed by this court. Necessary facts to be noticed for the disposal of this application are that two suits (suit for possession, recovery of `4,36,008/- and mandatory injunction and a suit for recovery of `94,008/-, for outstanding hire charges towards fittings and fixtures provided in the suit property), were instituted by the respondents before the trial court. The appellant contested both the suits and filed their written statements. Subsequent thereto respondent moved applications under Order 12 Rule 6 of the Code of Civil Procedure. Both the applications were allowed and decree was passed which resulted in filing of two RFA 492/2009 Page 1 of 7 Regular First Appeals (RFA No.490/2009 & RFA No.492/2009). On 06.08.2010 both the appeals were taken up for hearing and on an understanding arrived at between counsel for the parties, the appeals were allowed and the matter was remanded back and directions were issued to the trial court to hear and dispose of the matter expeditiously. It was also agreed between the parties that an amount of `6,00,000/- which was deposited by the appellant, be released in favour of the respondent along with the interest accrued thereon, subject to the respondent providing security to the satisfaction of the trial court. In view of the stand taken by the parties, the impugned judgment and decree dated 20.11.2009 was set aside.
2. Counsel for the appellant submits that the necessity for filing the present application has arisen on account of the fact that after the matter was remanded back to the trial court, the respondents made a grievance before the trial court that the monies as ordered by the trial court vide its order dated 22.10.2007 while deciding an application under Order 39 Rule 10 of the Code of Civil Procedure, had to be deposited by the appellant (defendant before the trial court) as the order stood revived and was to be complied with by the appellant. Thereafter on an oral prayer made by counsel for the respondent herein, the trial court directed the appellant herein to deposit the remaining amounts within one month.
3. Counsel for the appellant submits that the order passed by the trial court on an application under Order 39 Rule 10 of the Code RFA 492/2009 Page 2 of 7 of Civil Procedure was assailed by the appellant by filing an FAO(OS) No.442/2007 and the High Court initially while granting stay directed 50% of the total amount to be deposited before trial court. Thereafter an amount of `6,48,000/- was deposited with the trial court in accordance with the directions of the High Court by the appellant. The respondents filed a contempt petition being Cont.Cas(C)No.468/2008. Subsequently, High Court took a view that the exact amount of the amount due in terms of the order of the learned trial court in the application under Order 39 Rule 10 of the Code of the Civil Procedure was not deposited by the appellant, thus, the stay was vacated on 19.08.2009. The appellant thereafter filed a review petition No.341/2009 in FAO in which notice was issued. In the meanwhile the learned trial court decreed both the suits on the applications filed by respondent under Order 12 Rule 6 of the Code of Civil Procedure. A decree for the same amount was passed as was directed on the application under Order 39 Rule 10 of the Code of Civil Procedure. In the appeals the judgment of the trial court passed under Order 12 Rule 6 of the Code of Civil Procedure was stayed by the High Court.
4. Mr.Chadha, learned senior counsel for the appellant submits that when the appeals were listed before this court on 06.08.2010 the understanding was arrived at between both the counsel was on three issues : (i) the judgment and decree of the trial court was to be set aside; (ii) direction was to be issued to the trial court to hear and dispose of the matter expeditiously; RFA 492/2009 Page 3 of 7 and (iii) the sum of `6,00,000/- which stood deposited along with interest accrued thereon was to be released in favour of the respondents.
5. It is further contended by learned senior counsel for the appellant that the prayer made before trial court for payment of the entire amount as ordered vide order dated 22.10.2007 while deciding the application under Order 39 Rule 10 of the Code of Civil, is misconceived and in contravention of the understanding arrived at in Court, which is evident from the fact that it was agreed that only a sum of `6,00,000/- with interest accrued thereon would be released in favour of the respondent. He also submits that in case the interim order was to be revived and the full amount, as per order dated 22.10.2007 was to be deposited by the appellant, then the entire purpose of remanding the matter back would be defeated as the amount, ordered to be paid under Order 39 Rule 10 CPC and the amount as per the decree, is the same.
6. Learned senior counsel further submits that after filing of the RFAs, both the review petition filed in the FAO, the FAO and the contempt petition, were dismissed granting liberty to the parties to raise the grounds in the RFA which had already been filed by that time. Learned counsel also points out that an observation was made by the court in the CCP that the order passed in the application under Order 39 Rule 10 of the Code of Civil Procedure has merged with the final decree. RFA 492/2009 Page 4 of 7
7. Learned counsel for the respondent submits that according to his understanding, in view of the fact that CCP and FAO stood dismissed, the interim order passed on an application under Order 39 Rule 10 of the Code of Civil Procedure would stand automatically revived as a result of which the appellant would have to pay the amount as directed by the order of the trial court on the application under Order 39 Rule 10 CPC. Mr.Garg, further submits that the order of 6th August, 2010 also does not categorically state that the order passed in Order 39 Rule 10 be also set aside. The counsel submits that this issue was never agitated before this Court.
8. I have heard counsel for the parties. The basic facts are not in dispute. Both the appeals were remanded back by this court on an understanding arrived at between counsel for the parties that the trial court would hear and dispose of the matter expeditiously. It was also agreed that the amount of `6,00,000/- which was lying deposited with the trial court pursuant to the order passed by the High Court in the FAO would be released in favour of the respondent with interest accrued thereon. Ordinarily there would be no quarrel with the proposition that in case the matter is remanded back, the interim order would also stand revived. However, this is not an absolute rule as is evident from the facts of this case. The interim order was passed on an application filed by respondent under Order 39 Rule 10 of the Code of Civil Procedure and the trial court subsequently on an application filed by respondent RFA 492/2009 Page 5 of 7 under Order 12 Rule 6 of the Code of Civil Procedure decreed the suit for the same amounts. The order passed under Order 39 Rule 10 of the Code of Civil Procedure was assailed by the respondent by filing FAO in which initially stay was granted, subject to the appellant depositing 50% of the amount. Consequent to this order, appellant admittedly deposited `6,00,000/- with the trial court. The FAO could not attain finality as in the meanwhile a final decree was passed. Both the FAO and the CCP filed by respondent were dismissed, granting the parties liberty to raise grounds taken by them in the FAO and contempt, in the RFA.
9. While disposing of the matter on 06.08.2010 a specific order was made on the basis of understanding arrived at between the parties that `6,00,000/- with interest accrued thereon be released in favour of the respondent. While counsel for the respondent has contended that he had not consented that the order passed on an application under Order 39 Rule 10 of the Code of Civil Procedure be set aside. I am unable to agree with this submission of counsel for the respondent, as a composite order was passed and what the respondent did not achieve directly, cannot be allowed to achieve the same indirectly. It was the obligation of counsel for the respondent to clarify his stand on 06.08.2010 in which case it would not have been necessary for this court to pass a direction for release of `6,00,000/- to respondent and this amount would have continued to remain deposited with the trial court or as per the RFA 492/2009 Page 6 of 7 understanding of respondent, he could have sought a direction for release of the entire amount, as ordered under Order 39 Rule 10 of the Code of Civil Procedure. No such prayer was made. The stand sought to be taken by counsel for respondent to say, the least is an afterthought and against the understanding arrived at in court.
10. In this case if the order passed on application under Order 39 Rule 10 CPC is revived, it would amount to dismissal of the appeal and FAO without any hearing, and further the amount directed to be paid on the application under Order 39 Rule 10 of the Code of Civil Procedure and the order passed on an application under Order 12 Rule 6 of the CPC which resulted in passing of the decree is the same. Accordingly it is clarified that the respondent is only entitled to the amount deposited by the appellant which is `6,00,000/- and interest accrued thereon, subject to the final outcome of the suit.
11. With above clarifications, application stands disposed of.
G.S. SISTANI, J.
March 01, 2011 Bisht/ssn RFA 492/2009 Page 7 of 7