D.C.Khosla vs Vinod Kumar Jain
2010 Latest Caselaw 2452 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Review Petition No.1/2008 in RSA No.132/2004

                                  Date of Decision: May 06, 2010

      D.C.KHOSLA                                      ..... Petitioner
                             Through:   Mr.Ashish Dholakia, Advocate
                                        with Petitioner in person.

                    versus

      VINOD KUMAR JAIN                               ..... Respondent
                    Through:            Mr.R.K.Jain, Advocate.

      %
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?
     (2) To be referred to the reporter or not?       Yes
     (3) Whether the judgment should be reported
          in the Digest ?                             Yes
                             JUDGMENT

ARUNA SURESH, J. (Oral)

1. Appellant has sought review and recall of the order dated 31st

October, 2007 passed in CM Nos. 10347 & 10346 of 2005 in RSA

No.132/2004, whereby this Court dismissed the applications of the

appellant and declined to condone the delay and set aside abatement of the

appeal.

2. Mr. Ashish Dholakia counsel appearing on behalf of the

petitioner has argued that there is an error apparent on record inasmuch as

recording of facts that 'one of the proposed L.R.s of the appellant took time

to take steps to inform his sister about marriage of the counsel who was not

available in town', is contrary to the pleadings on record. He further argued

that as regards recording of facts that 'vakalatanamas had been executed by

two advocates' is also contrary to the record, because vakalatnama for the

deceased, though was in joint names, was executed only by one advocate

for the appellant, which on demise of the original appellant stood

discharged. He further argued that fresh vakalatnama was executed only in

favour of Mr.Rana S. Biswas, as is evident from the vakalatnama. He

further submitted that appellant had expired on 3rd February, 2005 and the

application was required to be filed by 5 th May 2005, whereas last date for

moving an application for setting aside abatement of appeal was 4th July,

2005 and therefore, period of limitation effectively started running from 4th

July, 2005 and the applications were filed on 14th July, 2005 resulting in a

delay of nine days only. He has emphasized that during the running period

of limitation, there were intervening summer vacations.

3. Mr.R.K.Jain, counsel appearing on behalf of the respondent

has countered the arguments of counsel for the petitioner and has submitted

that two advocates were representing the appellant and therefore, if one was

not available because of his marriage; other counsel could have filed the

application under Order 22 Rule 3 CPC within the period of limitation. He

further emphasized that the application of the petitioner was dismissed on

merits and no infirmity or illegality has crept in the order, which needs any

review, and that by way of a review petition, petitioner cannot be allowed to

build up a defence in his favour, which according to him is based on false

and fabricated documents.

4. As regards submission on condonation of delay in filing the

petition beyond the period of limitation, it need not be considered in this

review petition because, while deciding a review petition, Court is not

required to reconsider and decide the applications afresh which were

dismissed on 31st October, 2007 vide detailed order considering the merits

and submissions of the parties.

5. Vakalatnama filed on record by the petitioner finds mention two

names i.e. 'Mr. Rana Mukherjee' and 'Mr. Rana S.Biswas'. True that,

appeal was filed by Rana S.Biswas, fact remains that Rana Mukherjee was

also actively involved in this appeal. In the opening sheet, along with name

of Rana S.Biswas, name of Rana Mukherjee also appears as an advocate for

the appellant.

6. Perusal of the record indicates that affidavit filed by

Mr.D.C.Khosla, present petitioner along with CM No.10346/2005 also

bears signatures of Rana Mukherjee as the Advocate who identified the

petitioner. Similarly an affidavit enclosed with CM No.10347/2005 bears

signatures of Rana Mukherjee as the Advocate who identified the deponent.

Rana Mukherjee's name finds mention in all the pleadings and CMs

including the appeal filed on behalf of the appellant as well as the

petitioner. It is pertinent that in the courier slip, name of Rana Mukherjee

appears as 'sender' of the notice. These are some of the illustrations

highlighted to indicate that Rana Mukherjee was also representing the

appellant. Both the advocates are from the same chamber. Simply because

Rana Mukherjee's signature do not appear on the vakalatnama, does not

mean that he was not one of the lawyers representing the case of the

appellant and the present petitioner. It is also pertinent that perusal of order

sheets reflect that many a times Rana Mukherjee had been appearing along

with Rana S.Biswas as counsel for the appellant. Nowhere his presence is

marked as proxy.

7. Therefore, this Court rightly observed that there are two

advocates in the case as is indicated in the vakalatnama and if that is so,

another lawyer could prepare the application and file the same. True that,

there seems to be some typographical mistake when it is recorded in the

order 'Two Vakalatnamas of the Advocates have been filed in the case.

There are two Advocates in the case as is indicated in the Vakalatnamas and

if that is so another lawyer could prepare the application and file the same.'

Review which is required is only to the extent that the words 'two' should

not have appeared and needs deletion. Whereas word 'vakalatnamas'

indicating plural should be 'vakalatnama' as single.

7. Under these circumstances, no review is required in the order

dated 31st October 2007, as there is no error apparent on the face of record.

Clerical mistakes as pointed out above are hereby corrected and the relevant

lines as reproduced above, after correction would read 'Vakalatnama of two

Advocates has been filed in the case. There are two Advocates in the case

as is indicated in the Vakalatnama and if that is so, another lawyer could

prepare the application and file the same.'

8. Application stands disposed of accordingly.

(ARUNA SURESH) JUDGE May 06, 2010 sb