Ramesh Chand Sahni vs Mrs. Geeta Madhok & Ors.
1999 Latest Caselaw 496 Del

ORDER

Usha Mehra, J.

1. Applicants/respondents are seeking review of the order of this Court in C.M.(M) No.108/96 decided on 19th February, 1997.

2. The main grievance against the said order as expressed by the applicants are that non-applicant, petitioner in Civil Misc. (Main), concealed important and material facts from this Court. The present applicants were not aware of those facts which as concealed by the respondents herein because the applicants were not party to the recovery of rent suit. The facts which have been concealed by the respondents herein according to the applicants are that Smt. Bimla Rani owner of the property bearing No.113, Shankar Road Main Market, Rajinder Nagar, New Delhi, in the rent recovery suit proved through the hand-writing expert that documents had been forged by the present respondent. Report of the hand-writing expert was in favour of Smt. Bimla Rani and against the respondent herein. By the said report the hand-writing expert proved that signature and initials on rent receipts were of this respondent meaning that this respondent was a tenant of Smt.Bimla Rani. Secondly the late father of the respondent herein had filed a petition for fixation of standard rent under section 9 read with section 6 of the Delhi Rent Control Act (hereinafter called the D.R.C. Act). The said petition was filed much after the alleged agreement to sell dated 7th February, 1970. This shows that late father of the respondent, Shri Chuni Lal admitted himself to be the tenant of Smt.Bimla Rani. The hand-writing expert who submitted his report in civil suit has not been cross examined as yet. These facts are material to prove that property was not agreed to be sold to the respondent. But the respondent was only tenant. Having not brought these facts to the notice of this Court, therefore, the order under review has been passed. It has caused great injustice to the applicants. Respondent herein obtained the impugned order by concealing these material facts which resulted in miscarriage of justice. According to the applicants these facts were not in their knowledge as they were not party to the petition under D.R.C. Act hence they acquired the knowledge of these facts during the pendency of this petition. Since these are new and important facts and no fresh evidence is required to be led hence applicants be allowed to urge the same. Because of these new facts matter requires readjudication. The facts were not in the knowledge of the applicants as they were not party in the suit, therefore, could not be brought to the notice of the Court earlier. Moreover, this Court ignored the fact that in a recovery of rent suit issues pertaining to the title could not have been framed. Only issues which could be framed were; Whether there was a relationship of landlord and tenant between the parties and whether the rent claimed was due against the tenant. No question of title could be determined in a suit for recovery of rent. Moreover, the suit for recovery of rent could not be treated as a lis-pendens. Hence the provision Section 52 of the Transfer of Property Act (in short the T.P. Act.) were not attracted to the facts of this case. Neither the respondent herein nor his mother Kaushalya Devi filed a suit for specific performance on the basis of alleged agreement to sell dated 7th February, 1970, nor Kaushalya Devi or for that matter present respondent filed a suit of declaration of title of the property. That the agreement to sell itself does not create any title nor any right or interest in the property. The alleged agreement to sell having been cancelled by Smt.Bimla Rani, therefore, there was no question of framing any additional issue regarding title of the property to be determined. It is in this backdrop the applicants have sought review of the impugned order dated 19th February, 1997.

3. This application has been contested by the respondent on legal as well as factual grounds. Respondent has objected to the maintainability of such a petition. According to him the pre-requisite for the grant of such prayer is that new facts and/ or evidence was not in the knowledge of the applicant. Such facts have been discovered during the pendency of the petition. But in the case in hand it is not applicants' case that new facts and/or evidence has been discovered suddenly. Even otherwise in order to grant review the Court has to ascertain whether the applicant could not discover new facts or evidence inspite of due diligence and exercise of care. Beside sufficient cause has to be shown to indicate as to why these facts could not be placed before the Court earlier. The respondent contended that the applicants have neither stated sufficient cause nor established that these new facts were not in their knowledge.

4. On merits the application has been contested by the respondent by denying that the property was purchased by the applicants from Smt.Bimla Rani. According to the respondent the alleged sale in favour of the applicants, if any, is hit by the provisions of Section 52 of the T.P. Act. The rent receipts filed by Smt.Bimla Rani were proved to be forged. Documents had been forged by Smt.Bimla Rani with the malafide intentions to repossess the property which she had already sold to the mother of the respondent. The forgery of the documents has been established by CFSL, Delhi vide its report dated 29th November, 1996. In its report CFSL in no uncertain words expressed the opinion that the disputed signatures do not match with the admitted signatures of the respondent. On the basis of CFSL report police report was lodged. Accused were arrested. Charge sheet was filed against them. Smt.Bimla Rani had in fact been represented in the rent recovery litigation before the Trial Court through her Attorney Shri Rajiv Madhok, husband of applicant No.1 and brother of applicant No. 2. These applicants, therefore, cannot say that the facts were not in their knowledge or were concealed by the respondent herein. It is also false to contend that they were not aware of the suit for recovery of rent and the facts pleaded therein. Rather their representative Rajeev Madhok had been litigating throughout on behalf of Smt.Bimla Rani. Moreover, the same counsel who represented Smt.Bimla Rani appeared for the applicants in this case in the High Court. Respondent denied that his father filed any suit or petition for fixing of standard rent. The question of title and ownership is a subject matter of civil litigation pending in the court of Shri R.S. Arya, Additional District Judge, Delhi. In the matter before the Rent Controller respondent had specifically taken the plea that he is the owner of the property by virtue of the agreement to sell dated 7th February, 1970 entered into between Smt. Bimla Rani and respondent's late mother Smt. Kaushalya Devi. Pursuance to the said agreement Smt. Bimla Rani received the entire consideration. She accordingly as a part performance of the said agreement handed over possession of the suit property to the respondent. It was on account of these specific averments that issues of title were framed. Respondent has refuted the averment of the applicant that suit for specific performance ought to have been filed. According to respondent the then Rent Control Tribunal vide its order dated 9th November, 1982 had rejected such a plea of Smt.Bimla Rani. Since the question of title was pending the alleged sale of property in favour of the applicants was hit by the provisions of Section 52 of the T.P. Act.

5. In the rejoinder filed by the applicants they reiterated the material facts alleged in their application. According to applicants the additional issues regarding title now stood deleted, therefore, those cannot be used as a plea. Since now no suit of title is pending hence the order requires review. Moreover, the FIR lodged against Smt.Bimla Rani has already been assailed in the High Court by way of petition under Section 482 Cr.P.C. quashing of the said FIR has been sought. So far as Rajiv Madhok is concerned, he was appointed attorney of Smt.Bimla Rani only to execute sale deed in favour of the applicants. Hence the provisions of Section 52 of the T.P. Act in the facts of this case are not attracted.

6. It is in this background we have to consider the application of review. Before the application could be considered on merits, we have to see whether the applicants have made out any ground of review as envisaged under Rule 1 of Order 47 CPC. Rule 1 of Order 47 CPC envisages that review can be allowed only in three eventualities, namely: (i) when discovery of new and important matter or evidence, (ii) some error crept into the judgment which is apparent on the face, and (iii) for sufficient cause. Power of review is an exception to the general rule. This rule is in itself definitive of the limit within which a review is permitted. From the perusal of the grounds taken by the applicants it can safely be concluded that none of the ground taken by the applicant is covered by the three eventualities envisaged under Rule 1. For example the allegation of the applicants that being not a party to the rent recovery suit they were not aware of the facts falsified from their own admission. Smt. Bimla Rani had appointed Shri Rajiv Madhok as her attorney to represent her in the litigation with the respondent is sufficient to conclude that they were aware of all the facts. It, therefore, does not lie in their mouth now to say that they were not aware of these facts. Not only Rajeev Madhok, husband of applicant No.1 was representing Smt.Bimla Rani rather he engaged the same counsel for the applicants in the High Court for them who was representing Smt.Bimla Rani in Lower Court. Therefore, the argument of the applicants that they were not aware of these facts or that these are new facts cannot be relied upon. This argument merits rejection being without substance.

7. As regards Mr. Gupta's contention that additional issues relating to title have since been deleted, there is no question of pendency of any title issue. To my mind, this argument is also without substance because as per applicants own showing the issues relating to title were got deleted in August, 1997 whereas order was passed by this Court in February, 1997 when the question of title was in issue. It means when the order was passed on 19th February, 1997 the matter relating to title of the property was very much in issue. Therefore, the impugned order was passed on the facts as existed then. There cannot, therefore, be said error on the face of the record. The question of title was pending before the Civil Court. In view of the dispute with regard to the title of property having been pending in the Civil Court this Court considering the provisions of Section 52 of the T.P. Act and gave the said decision. The challenge of the applicant to the interpretation of Section 52 given by this Court tantamounts to assailing the order which is beyond the scope of Rule 1 of Order 47 CPC. The grounds now taken in this application cannot constitute a discovery of new or important matter nor can constitute a new evidence which was not in the knowledge of the applicants. Even otherwise as on the date the order was passed i.e. 19th February, 1997 the impugned order was based on the facts as available on record. The order is primarily based on the interpretation to Section 52 of the T.P. Act. Getting the issues deleted subsequently to the passing of the order will not amount to an error of fact.

8. Contention of Mr. Gupta that the respondent ought to have filed suit for title or of specific performance or declaration, I am afraid this argument has no merits. Admittedly, as per the order of the then Rent Control Tribunal Shri V.S. Aggarwal, The property being in possession of the respondent herein as part performance of the agreement to sell, it was not necessary to file a suit of specific performance. The Controller in its order dated 9th November, 1982 said that "when possession is delivered and the person is there in part performance of the agreement to sell, it is not necessary that he himself take action for specific performance. The mother of the applicant had little to loose even if she did not care to start litigation." These observation made by the then Rent Control Tribunal squarely answers the arguments now raised by the applicants. On the date the order was passed the issues with regard to the title of the suit property were under consideration, hence this Court applying the provisions of Section 52 of T.P. Act to the facts of this case decided the petition.

9. This Court in the order dated February,1997 did not touch the merits of the case. This Court left the decision for the Civil Court to decide about the title. If no issues relating to title or ownership are pending, then the applicants can bring this fact to the notice of the Rent Controller or the Tribunal as the case may be. The stay of rent proceedings before the Controller/Tribunal were ordered keeping in view the pendency of civil litigation touching the issues relating to title/ownership of the property in question. Since the subsequent sale was during the pendency of lis pendency hence this Court applied the provisions of Section 52 of T.P. Act and passed the order.

10. For the reasons stated above, I find none of the grounds justifying review of the order dated 19th February, 1997. Application dismissed.