Delhi High Court
Raj Kumar Khosla vs Col.S.K.Khosla & Ors on 12 December, 2008
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No.2738/2008 in CS(OS) No.2520/1996
% Date of Decision: 12.12.2008
Raj Kumar Khosla .... Plaintiff
Through None.
Versus
Col.S.K.Khosla & Ors .... Defendants
Through Mr.Surinder Anand, Advocate for the
defendant No.2/applicant.
Mr.B.K.Sood, Advocate for the
defendant No.3.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The applicant/defendant No.2 seeks review or modification of
order dated 13th August, 2007 imposing a cost of Rs.10,000/- and
consideration of IA No.8771/2007 which was dismissed on 13th August,
2007 and review of order dated 14th December, 2007 striking of the
defense of the defendant no.2/applicant.
By order dated 13th August, 2007, IA No.8771/2007 of the
applicant was dismissed with a cost of Rs.10,000/-. By IA
No.8771/2007 the defendant No.2/applicant had sought direction to
the applicant in IA No.4707/2007 to supply a copy of the application to
him.
The application I.A no. 8771/ 2007 was dismissed with a cost of
Rs.10,000 as no application having IA No.4707/2007 was on record
and the application was frivolous and had been filed to delay the
disposal of the case.. Though there was no application bearing IA
No.4707 of 2007, however, from the perusal of the record it had
transpired that there was another application being IA No.4507/2007
dated 19th April, 2007 filed by the Local Commissioner seeking direction
for acceptance of the bid by Sh.Mukul Sabharwal and further directions
regarding modalities of further payments and documents to be executed
by the parties. The said IA No.4507/2007 was taken up on 28th May,
2007 and detailed directions were given and the auction sale in favour
of Mr.Mukul Sabharwal, the higher bidder was confirmed. Instead of
seeking review of order dated 28th May, 2007 or modification of order
dated 28th May, 2007 the application IA No.8771/2007 was filed
seeking copy of application IA No.4707/2007 which application was not
on the record of the case and, therefore, it was held that the application
No.8771/2007 was a sheer abuse of the process of law and the
application was dismissed with a cost of Rs.10,000/- by order dated
13th August, 2007.
Review or modification or quashing of order dated 13th August,
2007 was not sought by the defendant No.2/applicant, rather on the
next date of hearing i.e 10th September, 2007 another IA
No.10295/2007 was filed seeking direction to the Local Commissioner
to provide one copy of the proposed sale deed. The application was
disposed of by order dated 10th September, 2007 with a direction to the
Local Commissioner that a copy of the proposed sale deed be given to
defendant No.2/applicant. On said date, 10th September, 2007
direction was again given to the applicant to pay the cost of Rs.10,000
imposed by order dated 13th August, 2007 within two weeks from 10th
September, 2007.
Even on 10th September, 2007 it was not stated on behalf of the
applicant/defendant No.2 that the cost imposed by order dated 13th
August, 2007 be waived off or that he will not pay the cost. Rather more
time was sought and therefore, by order dated 10th September, 2007
applicant/defendant no.2 was directed to pay the cost imposed by order
dated 13th August, 2007 within two weeks i.e by 24th September, 2007.
On 10th September, 2007 the case was adjourned to 24th October,
2007. In the meantime, IA No.12161/2007 was filed by the applicant
being the objections to the proposed sale draft prepared by the Local
Commissioner for the sale of property at Jalandhar. The objections filed
by the applicant/defendant No.2 were found to be gross abuse of the
process of the Court and, therefore, the objections were dismissed with
a cost of Rs.10,000/- payable by defendant No.2/applicant to the non-
applicants by order dated 24th October, 2007.
The cost imposed by order dated 13th August, 2007 of
Rs.10,000/- was not paid till 10th September, 2007 and applicant was
given two weeks time more to pay the cost by 24th September, 2007
which was not paid. Another cost of Rs.10,000 imposed by order dated
24th October, 2007 while dismissing IA No.12161/2007 of the
applicant/defendant no.2 was again not paid.
The matter was taken up pursuant to IA Nos.10296/2007, and
I.A no. 11853/2007 on 7th November, 2007. However, on that date also
there was no request on behalf of defendant No.2 for more time to pay
the cost or for review or modification or for setting aside the order dated
13th August, 2007 and the order dated 24th October, 2007 imposing
cost of Rs.10,000/- on each day.
The suit was again taken up on 5th December, 2007 on which
date also the counsel for the applicant/defendant No.2 was present who
accepted the notice of IA No.13751/2007, however, neither any prayer
was made for waving off the cost imposed earlier nor the cost was paid
even on that date.
The suit was again taken up on 14th December, 2007 when it was
brought to the notice that the defendant no.2/applicant in violations of
order dated 13th August, 2007 imposing a cost of Rs.10,000/- and order
dated 24th October, 2007 imposing a cost of Rs.10,000/- has not paid
the same. In the Court the counsel for the applicant/defendant No.2
had declined to pay the cost on the instruction of defendant
No.2/applicant which is categorically reflected in the said order.
Not only the cost imposed on 13th August, 2007 & 24th October,
2007 were not paid, it also transpired that a sum of Rs.10,000/- was
also imposed as cost in May, 2007. The cost imposed in May, 2007 of
Rs.10,000/- which was payable to the other defendants was not paid
and a cheque of Rs.10,000/- in the name of the Registrar General was
rather filed.
Since no cogent reasons were given or sufficient grounds made
out for not paying the cost, and since the counsel for the defendant
no.2/applicant on instruction of defendant no.2 had declined to pay the
cost and in the circumstances there was deliberate attempt to violate
the orders of the Court, the defence of the applicant/defendant no.2
was struck off.
The defendant no.2/applicant by this application seeks review of
the order dated 13th August, 2007, 24th October, 2007 and 14th
December, 2007. The application seeking review of these orders is time
barred and no grounds seeking condonation has been disclosed. There
are no grounds for review of order dated 13th August, 2007 and 24th
October, 2007 and 14th December, 2007 except that it will be in the
interest of justice, equity and good conscious. Similarly no grounds
have been disclosed for not paying the cost imposed in May, 2007
which was to be paid to the defendants rather a cheque in the name of
Registrar was deposited though there was no such order that the cost
imposed in May, 2007 be deposited in the name of Registrar.
The application for review of order dated 13th August, 2007, 24th
October, 2007 and 14th December, 2007 is barred by time and no
grounds have been made for condonation of delay in seeking the review
of order dated 13th August, 2007 and 24th October, 2007 and 14th
December,2007. The applicant categorically declined to pay the cost
imposed by various orders on 14th December, 2007 and it is
categorically incorporated in the order. The applicant cannot be
permitted now to contend that now he wants to pay the costs and the
orders passed on various days be now reviewed without disclosing any
cogent reasons for the review of orders. The applicant/defendant no.2 is
unable to point out any error apparent in any of the orders whose
review is sought by the applicant.
The application for review of order dated 14th December, 2007 is
filed on 1st March, 2008 along with the affidavit in support of the
application dated 28th February, 2008. Apparently the application for
review of order dated 14th December, 2007 is barred by time and no
grounds have been disclosed for seeking condonation of delay in filing
the application for review of orders dated 14th December, 2007.
The applicant had also filed an appeal being FAO(OS) No.65/2008
where he contended that he is ready and willing to pay the cost and
consequently, he sought permission to withdraw the appeal and has
filed the present application. The Division Bench of this Court by order
dated 11th February, 2008 had allowed the applicant to withdraw the
appeal, however, the delay in filing the application for review was not
condoned and it was ordered that the application be decided in
accordance with law.
A review cannot be sought merely for fresh hearing of arguments
or correction of an erroneous view taken earlier. The power of review
can be exercised only for correction of a patent error of law or fact
which stares in the face without any elaborate argument being needed
for establishing it. This power can also be exercised on account of some
mistake or error apparent on the face of the record or for any other
sufficient reason. An error which is not self evident and has to be
dictated by a process of reasoning can hardly be said to be an error
apparent on the face of the record. This principle was reiterated by the
Supreme Court in the case of Lily Thomas & ors v. Union of India and
Ors. (2000) 6 SCC 224, with a clear caution that in exercise of power of
review the Court may correct the mistake but should not substitute the
view. The mere possibility of two views on the subject, is not a ground
for review. It is obligatory for the applicant to establish on record that
there was an error or a mistake apparent on the face of the record or
there was such other material available with the applicant which if not
taken into consideration would cause miscarriage of justice. The
present application is nothing but brazen attitude and disregard of the
applicant to the Court's orders. The applicant first did not pay the costs
imposed, despite taking more time to pay the costs and then refused to
pay the costs and thereafter before the Division Bench it was stated
that the applicant is ready to pay the costs and by the present
application it is again contended that the costs could not be imposed
and the orders imposing costs are liable to be reviewed.
In the circumstances, the application is without any merit and
the orders dated 13th August, 2007, 24th October, 2007 and 14th
December, 2007 are not liable to be reviewed and the application is,
therefore, dismissed.
CS(OS) No.2520/1996
List before the Regular bench subject to the orders of Hon'ble the
Chief Justice on 19th December, 2008.
December 12, 2008 ANIL KUMAR, J.
'k'
