Vidyawati & Others vs A.N. Wanchu & Others
1998 Latest Caselaw 1051 Del

ORDER

Dr. M.K. Sharma, J.

1. This is an application filed by Mrs. Jaskirat Datwani through her attorney, Mr. Pradeep Sehgal, seeking for modification and/or review of the judgment/order dated 12.4.1996 passed by this court whereby this court accepted the suggestions of the Local Commissioner for construction of a 5 feet to 6 feet passage to be provided to the appellants in appeal from the main gate to the annexe after raising a brick wall or a perforated jail in order to protect the privacy of the inhabitants of the annexe and the main building.

The appellants in the appeal were legal representatives of the plaintiff and on the death of the original plaintiff they were substituted in place of the deceased plaintiffs. The aforesaid appellants filed the appeal against the order dated 2.2.1995 passed by the Single Judge vacating partially the ad interim injunction in respect to the lawn and the land attached to the annexe of 6, Friends Colony (West), New Delhi. Subsequent to the filing of the appeal and after hearing the counsel for the parties the Division Bench of this court in the appeal came to the conclusion that a local commissioner should be appointed to visit the property, prepare a plan and also to take photographs of the annexe together with the land attached to it so that the court could get an idea of the topography of the property. In pursuance of the aforesaid order the local commissioner appointed submitted a report in respect to the topography of the land in dispute and also incorporating therein certain suggestions in respect of providing access to the annexe under occupation of the appellants in pursuance of specific directions of this court. The aforesaid suggestions made by the local commissioner in his report were found to be sound and reasonable and therefore, the said suggestions were accepted and the Division Bench directed that a 5 feet to 6 feet passage be provided to the appellants, as shown in the site plan annexed to the report, from the main gate to the annexe after raising a brick wall or a perforated jali in order to protect the privacy of the inhabitants of the annexe and the main building. It was also directed that the doors at points G, X, Y and Z of the aforesaid plan and the jalis which have barricaded the annexe be removed to provide access, air and light to the inhabitants of the annexe. Being aggrieved by the aforesaid directions the present application has been filed by the applicant.

2. It is necessary to mention at this stage that the applicant was neither a party in the suit nor imp leaded herself in the appeal although she has stated in this application that she is in sole occupation of the main Kothi at 6, Friends Colony, New Delhi. The applicant has submitted that raising of the proposed wall as directed by this Court by judgment and order dated 12.4.1996 would adversely affect the enjoyment and occupation of the main house at 6, Friends Colony, New Delhi and also some of their servant quarters occupied by their servants inasmuch as the said proposed passage would have to be made on the land which is in occupation of the applicant and would also block the light and air of the applicant and her servant quarters.

3. On perusal of the records we find that when the local commissioner inspected the site in pursuance of the order passed by this court for preparing his report in respect of the topography of the land in dispute the attorney of the applicant, Shri Pradeep Sehgal was present and his name finds mention in the report submitted by the Local Commissioner. Before the Local Commissioner, Shri Pradeep Sehgal represented himself to be the attorney of the respondents. The applicant herein, Mrs. Jaskirat Datwani, was not a party to the suit and did not take any steps to get herself imp leaded even in the appeal although she is stated to be in occupation of the premises in question.

4. The present application has been filed by the applicant after a lapse of about 4 months from the date of passing of the aforesaid order by this court. Under the provisions of the Limitation Act the prescribed period of limitation for seeking review of an order is 30 days from the date of knowledge of the order. The applicant has also not filed any application for impleading herself in the present proceedings and no application has been filed by her for her impleadment as required under Order 1 Rule 10 of the Code of Civil Procedure. Thus the applicant is a third party, not ordered to be imp leaded so far and as such the present application has been filed by a third party seeking for review of an order passed by this court on 12.4.1996. The application is also filed beyond time and no application has been filed under Section 5 of the Limitation Act seeking for condensation of delay. Shri Pradeep Sehgal, who is stated to be the constituted attorney of the applicant had specific knowledge of the proceedings namely of the suit and of the appeal pending in this court and he represented the respondents in the appeal before the Local Commissioner, contending that he is the constituted attorney of the respondent. No objection has been filed by any of the parties namely the appellants and the respondents or by the applicant or by Mr. Pradeep Sehgal before this Court as against the report of the local commissioner. This court, by order dated 12.4.1996 found the suggestions given by the local commissioner in his report to be sound and reasonable and accepted the said suggestions taking note of the fact that no objection has been filed by any of the parties to the aforesaid report of the local commissioner incorporating suggestions therein.

5. Besides the contentions raised now by the applicant in this application and by her counsel during the course of arguments relate to disputed questions of fact. According to the learned counsel for the applicant the proposed wall would obstruct the entrance of the air and light of the main kothi and also to the servant quarters and obstruct the use of garages and generator room of the applicant and would virtually divide the property in two parts. It was submitted by the learned counsel for the applicant during the course of his arguments that the appellant could use the entrance to the annexe from the road at the side of the house which provides clear access to the annexe of the appellant. According to him the said road is a motorable road and is also being used by the occupants of the other servant quarters next to the annexe. It is submitted that the said road does not run through the Railway line as reported by the Local Commissioner. The submission that the road does not run through the Railway line was not even stated in the application and is being argued for the first time during the course of arguments. The Local Commissioner before submitting his report, in terms of the order passed by this court, visited the site, prepared a plan, took photographs at the site of the surroundings of the property in dispute. The Local Commissioner considering all those and after discussion with the persons involved including Shri Pradeep Sehgal, submitted his report giving his suggestion in terms of the order passed by this court. After hearing the parties and on perusal of the record the aforesaid suggestions were found to be sound and reasonable. It was also found that the said suggestions would protect the interest of both the parties during the tendency of the suit.

6. Thus, in our considered opinion, this court while deciding a review petition should not take upon itself the task of depreciating the evidence once more for coming to some other conclusion more so as the power of review is a very restricted power. No error apparent on the face of the record nor any glaring mistake could be pointed out by the learned counsel for the applicant. On consideration of all the factors discussed herein, we are of the opinion that no review is called for as prayed for and we do not find any merit in the application and the same accordingly, stands dismissed.