Abhay Sapru vs Chitralekha Bukshi
2008 Latest Caselaw 2313 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CM Nos. 11804/2008, 11805/2008 and CM No. 11806/2008 in
       RFA (OS) 17/2008
                                               Reserved on : 17.10.2008
                                            Date of Decision: 19.12.2008


       ABHAY SAPRU                                       .....Appellant
                                           Through:       None
                                      VERSUS
       CHITRALEKHA BUKSHI                                ......Respondent
                                           Through :      None
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE V. K. SHALI

                                      ORDER

%

1. After the judgment in the case was reserved on 28th April, 2008, the

aforesaid three CMs are purported to have been filed. The CM Nos. 11804/2008

& 11805/2008 were for staying the operation of the impugned order dated 7th

January, 2008 passed by the learned Single Judge by virtue of which a preliminary

decree of partition was passed in respect of the suit property against the appellant.

2. The CM No. 11806/2008 was under Section 7 of the Court Fees Act, 1870

read with Sections 148, 149 and 151 of the CPC for taking up the application

regarding the payment of ad valorem court fees.

3. The judgment in the appeal was pronounced in the appeal on 18th July, 2008

and the appeal of the appellant was dismissed upholding the preliminary decree of

partition of the suit property and also recording the concession of the learned

senior counsel who had very fairly conceded that as on date only first floor is

constructed, therefore, any construction raised by the respondent no. 1 over and

above the second floor and in accordance with the building bye-laws will be

shared in equal proportion between the appellant and respondent no. 1.

4. These three CMs were listed by the Registry on 22nd August, 2008 since the

Court did not assemble on that date, the matter was adjourned to 5th September,

2008. On 5th September, 2008 none appeared for the parties, accordingly, in the

interest of justice the CMs were adjourned to be listed on 17th October, 2008.

5. On 17th October 2008, the learned counsel for the respondent was present,

although, there was no appearance for the appellant. After hearing the learned

counsel for the respondent the orders on the three CMs were reserved. While the

orders on these three CMs were reserved, the appellant has filed a fresh application

bearing No. 17451/2008 wherein the appellant has prayed for clarifying the order

dated 17th October, 2008, as to how, the judgment has been reserved in the matter

on 17th October, 2008, as the matter has been already been decided on 18th July,

2008. It has also been prayed in the CM that on investigation by the learned

Registrar General of this Court, be ordered as to why, and upon whose order these

CMs, namely, CM Nos. 11804/2008, 11805/2008 and 11806/2008 were not listed

in the months of May and July, 2008.

6. We have heard the appellant, who is present today in Court on the

application bearing no. 17451/2008. We have also gone through the record. So

far as the CM Nos. 11804/2008 to 11806/2008 are concerned, the same do not

warrant passing of any order in view of the fact that this Court vide a detailed

judgment has already dismissed the appeal of the appellant and upholding the

preliminary decree of partition having been passed against the appellant by the

learned Single Judge.

7. So far as the present CMs bearing No. 17451/2008 is concerned, wherein

the appellant has sought clarification as to how the judgment is reserved on 17th

October, 2008 while as the same has been pronounced on 18th July, 2008, it seems

on account of an inadvertent typographical error, the word 'Judgment' has been

written in the order dated 17th October, 2008 while as the word 'order' ought to

have been on the application bearing CM No. 11804/2008 to 11806/2008 was

reserved. The order in these applications was reserved on account of the fact that

there was no appearance on behalf of the appellant and the Court had to go through

the record of the case and the application and that is the reason why the order was

reserved. To this extent order dated 17th October, 2008 stands clarified.

8. One of the prayers of the appellant in CM bearing No. 17451/2008 is that an

inquiry into the non-listing of the aforesaid CMs be directed to be conducted by

the learned Registrar General of this Court.

9. We feel that this is the difficulty which is faced by the Court where a

petitioner or an appellant appears in person who is not conversant with the

procedure of the Court. The appellant has made certain averments that he had

approached certain officials of the Registry who had assured him that the

applications have been cleared yet they were not listed. Since the appellant was

conducting the case in person, he ought to have followed the same and got them

listed rather than sleeping over the same. In any case, it is too late to pass any

order either on the applications 11804/2008 to 11806/2008 or even to order an

enquiry into the non-listing of the same. it would be tantamount to flogging a

dead horse. The appellant seems to be in the habit of making wild allegations

both oral and as well as in written as we had seen the appellant doing so even

during the hearing of the matter which was conducted by him personally. The

stand of the appellant seems to be cantankerous in nature. We do not find any

justification of directing of holding of any inquiry in the matter of non listing of

these CMs.

10. We, accordingly, dismiss CM No. 17451/2008.

(V.K.SHALI) JUDGE

(MUKUL MUDGAL) JUDGE December 19th , 2008 KP