Delhi High Court
Mr. Kishore Motiani vs Om Prakash & Sons And Ors. on 3 September, 2002
Equivalent citations: 2003 (66) DRJ 376
Author: S Agarwal
Bench: S Agarwal
JUDGMENT
S.K. Agarwal, J.
This order will dispose of the application
filed by defendant Nos. 1 and 3, under Order 47
Rule 1 read with Section 151 CPC, for seeking review of
Order dated 8.5.2001 passed in IA No. 11166/2000.
1. The plaintiff in the suit has prayed for grant
of a decree for specific performance the Agreement to Sell
dated 4.4.97, requiring the defendants to convey property
bearing No. B-96, Mayapuri, Phase-II, New Delhi, along with
entire built up area of the property.
2. On 24.10.2000, plaintiff moved an application
(IA No. 11166/2000) under Order 6 Rule 17 read with 151 CPC
for amendment of the plaint. By order dated 30.10.2000
application was allowed by Hon'ble Mr. Justice Vikramajit
Sen, holding:
"I am satisfied that the amendment sought
are necessary for the complete adjudication
of the disputes between the parties and,
therefore, be allowed. Accordingly, the
application is allowed and the plaintiff is
permitted to incorporate paragraphs 5 to 9
of the present application into the plaint
between paragraph 1 and 2 thereof. These
paragraphs will now be numbered as 1(a) to
(e).
Amended plaint be filed within one week."
3. On the same day (30.10.2000) defendant Nos. 1 and
3 were also proceeded ex parte. The defendant Nos. 1 and
3 moved an application (IA No. 11563/2000) under Order 9
Rule 7 read with Section 151 CPC, for setting aside the
ex-parte order. By orders dated 8.5.2001 this application
was allowed an ex-parte proceedings were set aside.
However, prayer for setting aside the order allowing the
amendment was declined. The applicants were directed to
move review application if they so desired. It was
observed:
"Merely because the ex parte proceedings in
the suit have been set aside, the amendment
application bearing No. 11166/2000 is not
liable to be re-heard as it was disposed of
independently. The defendant may seek the
review of the said order by way of moving an
appropriate application."
The defendant Nos. 2 and 4 were served by way
of publication but nobody appeared on their behalf,
accordingly they were proceeded ex parte on 8.5.2001.
Defendant Nos. 1, 3 and 5 filed their written statements
and the matter was listed for 18.9.2001.
4. Thereafter, defendant Nos. 1 and 3 moved an
application (IA No. 6474/2001) under Order 47 Rule 1 read
with Section 151 CPC, seeking review of the order dated
30.10.2000 passed in IA No. 11166/2000. Notice on the
application was issued on 23.7.2001 and on 18.9.2001, the
matter was listed before Hon'ble Mr. Justice Vikramajit
Sen, as the review was sought of the order passed by His
Lordship. On 8.2.2002 the review application (IA
No. 6474/2001) was disposed of holding:
"It is the contention of learned counsel for
the Defendants 1 and 3 that the application
for Review is maintainable. I am unable to
agree with this contention. Even if the
clock has to be put back, as observed by the
Hon'ble Supreme Court in Arjun Singh v.
Mohindra Kumar and Ors.,
it is for the Regular Bench to do so."
Now, defendants Nos. 1 & 3 have moved the
above application (IA No. 2281/2002), which is listed today
for hearing. I have heard the learned counsel for the
parties.
5. Learned counsel for applicants/defendants argued
that on 30.10.2000, when the applicants/defendants were
proceeded ex-parte, and on the same day review application
was moved; that they were not given any opportunity to
file their reply to the application seeking amendment of
the plaint and on 30.10.2000 in their absence amendment
was allowed. Therefore, the order permitting amendment of
the plaint is not sustainable and is liable to be
reviewed. He argued that by these amendments, rights of
the defendants have been vitally affected and scope of the
suit is completely changed. Learned counsel for plaintiff
argued to the contrary.
6. As noticed above, while setting aside ex-parte
orders against the applicants/defendants, it was
specifically held that it shall not effect the order dated
30.10.2000 allowing the plaintiff to amend the plaint.
Thereafter, applicants' application for review was
dismissed on 8.2.2002. These two orders are absolutely
clean and unambiguous. A court has on inherent power to
review its decision duly pronounced. It can do so only if
it authorised by law. The party aggrieved can apply for
review, only on the ground of the discovered of new and
important matter or evidence which after the exercise of
due diligence was not within the knowledge of the party or
the mistake or error apparent on the fact of the record or
any other sufficient reason. The case set-up by the
applicants does not fall in any of these categories.
In view of the above, I find no merit in the
application. Dismissed.
