Delhi High Court
Sh. Chaman Goel vs Varender Kumar Singh Saini on 8 December, 2009
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO. No.319/2009 & CM Nos.14723 & 14725/2009
% Judgment reserved on: 2nd December, 2009
Judgment delivered on: 8th December, 2009
Sh. Chaman Goel
S/o. Sh. R.L. Goel
R/o. L-301, Siddh Apartment,
Plot No.107, I.P. Extension,
Delhi 110092 ....Appellant
Through: Mr. Manoranjan Padhi, Adv.
Versus
Varender Kumar Singh Saini
S/o. Late Atma Ram Saini
R/o. 417-A Pocket-II
Mayur Vihar Phase I
Delhi-110092 ....Respondent.
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
+CM No.14725/2009 in FAO No. 319/2009
There is a delay of one day in filing this appeal.
For the reasons stated in the application, delay is condoned.
Applications stands disposed of.
+FAO No. 319/2009 & CM No.14723/2009
This appeal has been filed against order dated 3rd July, 2009 passed by
Civil Judge, Delhi. Vide impugned order, appellant's application for review of
order dated 7th April, 2008 was dismissed.
2. Respondent herein, filed a suit for possession and recovery against the
appellant on the ground that he is the owner/landlord of Flat No.L-301, Siddh
Apartments, I.P. Extension, Delhi. Appellant was inducted as a tenant in this flat
in February, 2001 at a monthly rent of Rs.5,000/-. Respondent served on
appellant a legal notice to quit cum demand dated 25th January, 2007. In spite of
legal notice, appellant did not vacate nor did he pay the arrears of rent.
3. In the written statement, appellant stated that as a matter of fact he has
taken the premises on rent in February, 2001 at monthly rent of Rs.2800/- and also
paid Rs.2 lacs as security. However, in 2002, respondent representing as Sh.
Mahesh Kumar Singh Saini desired to sell the said flat as his wife was suffering
from cancer and settled the deed for Rs.12,80,000/-. Respondent took a sum of
Rs.8 lacs and balance of Rs.4,80,000/- was payable at the time of execution of the
documents. Thereafter, respondent fell ill and could not execute the necessary
documents, although appellant was always ready to pay the balance amount.
4. Trial court, vide order dated 7th April, 2008, directed the appellant to
deposit rent/damages/mesne profits at the rate of Rs.4800/- p.m. w.e.f. 1st January,
2004 and to continue deposit the rent month by month. It may be pertinent to
point out that this order was never challenged by the appellant. The same has thus
become final.
5. Appellant, later on filed an application for review of order dated 7th April,
2008. Grounds taken for review read as under;
"That the defendant/applicant through sheer typing mistake
and over sight mentioned in his legal notice dated.27.01.2007
that he had taken the suit property at a monthly rent of
Rs.4800/-. One very important material fact has neither been
considered nor appreciated by this Hon'ble Court and that is
ensuing legal notice dated 13.02.2007 in which the
applicant/defendant amended and clarified that the rent during
2001 & 2002 was mutually settled at Rs.2800/- per month and
not Rs.4800/- per month which was erroneously mentioned in
the earlier notice.
That one more material fact has escaped the sight of this
Hon'ble Court while passing the order in question and that is
that when in the beginning of 2002 the petitioner was
desperately fighting financially and physically to save his
cancer ridden wife he voluntarily decided to sell the suit
property to the defendant for a sum of Rs.12,80,000/- out of
which the plaintiff gradually but in quick succession received
an advance amount of Rs.8,00,000/- and became duty bound
to transfer the suit property to the defendant/applicant at any
point of time. Thus, the order in question by this Hon'ble
court suffer from infirmity and erroneous deductions.
That reference to Section 53-A of TPA also suffers from
infirmity and erroneous reference as after the
contract/agreement in the beginning of 2002, even if verbal,
the plaintiff and the defendant ceased to be in the original role
of landlord and tenant and acquired the new role of the
landlord/seller and the buyer. In consideration of the total sale
amount of Rs.12,80,000/- as mutually agreed between the two
parties the landlord gradually received Rs.8,00,000/- from the
defendant/applicant and became duty bound to transfer the
property in the name of the defendant/applicant. The reality is
that the plaintiff is no longer the landlord of the suit property
nor acting bonafidely and as such does not deserve any right
to recover any rents and mesne profits from the defendant".
6. Principles for review are well-settled that is, an order can be
reviewed only, when there is any error apparent on the face of record.
Trial court in the impugned order held that there is no error apparent on the
face of record or any mistake in the order dated 7th April, 2008.
7. Relevant portion of impugned order reads as under:-
"In the present application, applicant/defendant has sought review
of order dated 07.04.2008 on the ground that plaintiff is a
wrongdoer and rate of rent of property in dispute is at Rs. 2,800/-
but not 4,800/- and plaintiff is not landlord/owner of property in
dispute. After going through order dated 07.04.2008, I find that
there is no any error apparent on the face of record or any mistake
in order dated 07.04.2008. Ground taken by defendant in present
review application has specifically been considered by the Court in
order dated 07.04.2008. I find no merit in the ground taken in
present application for review of order dated 07.04.2008 passed on
application under Order 39 Rule 10 CPC moved by plaintiff."
8. Thus, grounds for review mentioned in para 4, 5 & 6 of the review
application, were already there in the written statement filed by appellant.
The same have been fully considered and dealt with by the trial court in its
order dated 7th April, 2008. Thus, there is no infirmity or illegality in the
impugned order. Application for review was rightly dismissed by the trial
court.
9. Present application for review filed by appellant is most bogus and
frivolous one and has been filed just to delay the proceedings pending
before the trial court. Moreover, appellant has no intention to pay
rent/occupation charges, when admittedly he is in occupation of the
property in question. Hence, this appeal is dismissed with costs of
Rs.10,000/-.
10. Appellant is directed to deposit the costs of Rs.10,000/- with
Registrar General of this Court within four weeks from today, failing
which the same be recovered in accordance with law.
+CM No.14723/2009
11. Dismissed.
12. Copy of this order be sent to the trial court.
13. List for compliance on 12th January, 2010.
8th December, 2009 V.B. GUPTA, J.
rb
