Delhi High Court

Arati Bhargava & Anr vs Madhur Bhargava & Ors on 5 May, 2010

Author: Rekha Sharma

                                                      REPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                 C.M. No.2475/2009 in RFA No.855/2003


                                       Date of Decision: May 05, 2010


       ARATI BHARGAVA & ANR                 ..... Appellants
                    through Mr. Ram Jethmalani, Senior Advocate
                    with Mr. Alok Kumar, Mr. Deepak Mittal,
                    Mr. P.R.Mala, Ms. Lataa Krishnamurthi &
                    Mr. Pranav Diesh, Advocates

                      versus


       MADHUR BHARGAVA & ORS              ..... Respondents
                   through Mr. O.N.Vohra, Special Attorney
                   with Ms. Shradha Bhargava, Advocate
                   for respondents No.1 to 3.
                   Ms. Soni Singh, Advocate for respondent No.4.


                 C.M. No.2449/2009 in RFA No.732/2003


       MADHUR BHARGAVA & ORS            ..... Appellants
                   through Mr. O.N.Vohra, Special Attorney
                   with Ms. Shradha Bhargava, Advocate

                      versus


       ARATI BHARGAVA & ANR                 ..... Respondents
                    through Mr. Ram Jethmalani, Senior Advocate
                    with Mr. Alok Kumar, Mr. Deepak Mittal,
                    Mr. P.R.Mala, Ms. Lataa Krishnamurthi &
                    Mr. Pranav Diesh, Advocates for respondents
                    No.1 & 2.
                    Ms. Soni Singh, Advocate for respondent No.3.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes


CM No.2475/2009 in RFA No.855/2003 &                           Page 1 of 6
CM No.2449/2009 in RFA No.732/2003
 2.       To be referred to the reporter or not? Yes
3.       Whether the judgment should be reported in the „Digest‟? Yes

REKHA SHARMA, J.

Four Regular First Appeals bearing RFA Nos.732/2003,

855/2003, 878/2003 & 912/2003 were filed against common judgment

and decree passed by Additional District Judge, Shri S.M.Chopra

dated August 23, 2003. All the four appeals pertain to property

No.2522/10 (3rd floor), front of plot No.3/13-B, Asaf Ali Road, New

Delhi. In terms of the Delhi High Court Rules and Orders as

applicable on the date the aforesaid appeals were filed, they were

placed before a Division Bench for hearing and disposal. It is not in

dispute that in two of those appeals being RFA No.732/2003 & RFA

No.855/2003, substantial arguments were heard by the Division

Bench. However, before any final order could be passed, the Rules

saw an amendment. The same came into operation with effect from

January 01, 2009. The amendment relevant for our purpose is as

under:-

"Part-B JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT

1. Cases ordinarily to be heard by a single Judge. - Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge setting alone:-

(i) a motion for the admission of - (omitted)

(a) a first appeal from the decree of a subordinate Court, or

(b) an appeal from order under the Code of Civil Procedure and under any Act of the Central or State Legislature unless there is any thing of the contrary in the said act, or

(c) a second appeal irrespective of the value of the subject matter."

CM No.2449/2009 in RFA No.732/2003 What is also relevant is Section 2 of the notification dated

December 23, 2008 whereby the aforesaid amendment was made. It

runs as under:-

"2. These amendments shall also apply to pending appeals other than those in which regular hearing has actually commenced before the coming into force of these rules."

The amended Rule reproduced above is clear and unambiguous

and needs no interpretative skill. Since two of the appeals were

actually heard, if not fully at least substantially, they were to remain

with the Division Bench and the two other appeals, even though were

not heard, were at least integrally connected with the remaining two.

The Division Bench in its wisdom by order dated January 30, 2009

directed all the four appeals to be heard by a Single Judge. The order

so passed by the Division Bench reads as under:-

"x x x x x x

1. The four captioned appeals are interconnected and arise out of the same suit.

2. Whereas substantial arguments were heard in RFA No.732/2003 and RFA No.855/2003; arguments had yet to commence in the two connected appeals being RFA No.878/2003 and RFA No.912/2003.

3. Since RFA No.878/2003 and RFA No.912/2003 have to be fully heard; the appeals are directed to be listed before a Single Bench as per roster. We note that with effect from the current calendar year the jurisdiction to hear regular first appeals arising out of judgments and decrees passed by Courts subordinate to the Delhi High Court is vested with a Single Judge and not a Division Bench.

4. List for directions before a learned Single Judge as per roster on 12.2.2009..........."

CM No.2449/2009 in RFA No.732/2003 Consequent to the passing of the aforesaid order, the appellants

moved an application bearing C.M. No.2475/2009 dated

February 12, 2009 in RFA No.855/2009 and therein they prayed that

the appeals be directed to be heard by the same Bench which had

substantially heard the matters. In another appeal bearing RFA

No.732/2003 also, similar application was filed. In view of the

applications, the learned Single Judge vide order dated

March 16, 2009 passed in RFA No.732/2003 directed the appeals to

be listed before the Division Bench, subject to the orders of

Hon‟ble the Chief Justice on March 20, 2009. Accordingly, the matter

was again listed before the Division Bench and the Division Bench this

time passed the following order:-

"x x x x x x

1. In our order dated 30.1.2009 we had recorded as under:-

1. The four captioned appeals are interconnected and arise out of the same suit.

2. Whereas substantial arguments were heard in RFA No.732/2003 and RFA No.855/2003; arguments had yet to commence in the two connected appeals being RFA No.878/2003 and RFA No.912/2003.

3. Since RFA No.878/2003 and RFA No.912/2003 have to be fully heard; the appeals are directed to be listed before a Single Bench as per roster. We note that with effect from the current calendar year the jurisdiction to hear regular first appeals arising out of judgments and decrees passed by Courts subordinate to the Delhi High Court is vested with a Single Judge and not a Division Bench.

4. List for directions before a learned Single Judge as per roster on 12.2.2009.

CM No.2449/2009 in RFA No.732/2003

2. It is not in dispute that arguments in the two connected appeals being RFA No.887/2003 and RFA No.912/2003 had yet to commence. The said two appeals have to be fully heard.

3. With reference to the notification dated 23.12.2008 amending the rules relating to regular first appeals, we note that it finds mentioned therein that the amendments shall not apply to pending appeals in which regular hearing has commenced.

4. Thus, technically it can be urged that pertaining to RFA No.732/2003 and RFA No.855/2003 the pre-amended rules would apply.

5. But today we are faced with another problem.

6. The notes of arguments which we had noted during hearing of the two appeals i.e. RFA No.732/2003 and RFA No.855/2003 are missing from the files of the two appeals, meaning thereby, even the said appeals would have to be reheard.

7. To put it differently, hearing afresh would have to be held in the said two appeals as well.

8. To get over the impasse, we pass a formal order releasing RFA No.732/2003 and RFA No.855/2003 where arguments had substantially concluded. Needless to state arguments in RFA No.878/2003 and RFA No.912/2003 had not even commenced.

9. List as per roster before a Single Bench on 24.3.2009............."

Shri Ram Jethmalani, the learned Senior Advocate who is

representing the appellants expressed his dissatisfaction over the

orders passed by the Division Bench on January 30, 2009 and

March 20, 2009. He submitted that the orders so passed were against

the letter and spirit of the amended Rules. His grievance was that

at least two of the connected appeals having been heard by the

Division Bench and the remaining two appeals being the integral part

of the said appeals and all the four appeals having emanated from the

CM No.2449/2009 in RFA No.732/2003 same judgment and decree, the Division Bench could not direct those

appeals to be heard by a Single Bench. The learned Senior Advocate

wanted that I should ignore the direction, and, following the Rules,