Sh. Rakesh Rawat & Anr. vs Sh. Rajesh Kumar Rawat & Ors.
2011 Latest Caselaw 6160 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        RFA No. 411/2010

%                                                    15th December, 2011

       SH. RAKESH RAWAT & ANR.                       ..... Appellants
                       Through : Ms. Purnima Sethi, Advocate.
                versus

       SH. RAJESH KUMAR RAWAT & ORS.            ..... Respondents
                     Through : Mr. Ramesh Kumar, Advocate for
                               Respondent No.1.
                               Ms. Latika Choudhary, Advocate for
                               Respondent No.3.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.     The challenge by means of this Regular First Appeal (RFA) filed

under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial court dated 29.5.2010 passing a final decree

determining the value which shall be payable by the respondent No.1 /

plaintiff to the appellants / defendants. The preliminary decree declaring

shares of the parties in the various properties was passed earlier vide

judgment and decree dated 1.5.2009, and which judgment admittedly has

become final because the same was never challenged by any of the parties.

2.     By the preliminary decree dated 1.5.2009 a decree was passed
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 declaring the respondent No.1/plaintiff as entitled to 4/6th share in the first

suit property i.e. D-63/1, Vijay Colony, Near Usmanpur, 3rd Pusta, Shastri

Park, Delhi - 110053. The respondent No.1 / plaintiff was also held entitled

to a 2/3rd share in the second suit property i.e. D-75, Vijay Colony, Near

Usmanpur, 3rd Pusta, Shastri Park, Delhi - 110053.           The appellants /

defendant Nos. 1 and 2 were entitled to 1/6th share in the first property and

1/3rd share in the second property. In the second property only the defendant

No.2 was held entitled to 1/3rd share in the property.

3.     A local commissioner was appointed after passing of the preliminary

decree, however, in view of the dissatisfaction of both the parties to the

report of the local commissioner, the report of the local commissioner was

rejected by the court vide order dated 26.5.2010.

4.     The parties, thereafter, in the present case agreed to the modality of

arriving at the value of the suit property by inter se bidding. As per the inter

se bidding, the respondent No.1 / plaintiff offered an amount of `30,000/-

per sq. yd. for both the properties, but the appellants / defendants only

offered a sum of `25,000/- per sq. yd. This offer of `25,000/- per sq. yd.

was not increased by the appellants in spite of opportunities given by the

trial court.

5.     Learned counsel for the appellants argued before this Court the
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 following aspects for allowing the appeal:

(i)     The preliminary decree wrongly determines the shares of the parties.

(ii)    The trial court has wrongly recorded the aspect as to the inter se

        bidding, and the facts as stated in the impugned judgment does not

        state the correct factual position, inasmuch as there was no actual

        bidding. It is also argued that the order was passed in haste without

        giving sufficient opportunity to the appellants.

(iii)   Lastly, it was argued that as per various judgments of Supreme Court

        valuation of the property ought to have been arrived at and only after

        a valuation is arrived at through the valuer's report, and only on the

        basis of such valuation could the final decree have been passed.

6.      So far as the first point of argument of challenging the preliminary

decree is concerned, this argument is wholly misconceived inasmuch as a

preliminary decree is as much a judgment and decree as a final judgment and

decree, and if the appellants were aggrieved in any manner by the

preliminary judgment and decree dated 1.5.2009 declaring the respective

shares of the parties, then, such judgment and decree which was appealable

ought to have been appealed from.            Admittedly, till date neither the

appellants, nor the respondent No.3 who is supporting the appellants, have

challenged the preliminary judgment and decree. Therefore, I reject the
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 argument raised on behalf of the appellants by seeking to challenge the

preliminary judgment and decree dated 1.5.2009 in a challenge which is now

laid against the final judgment and decree dated 29.5.2010.

7.     The second argument which is urged on behalf of the appellants is that

the trial court has wrongly recorded as a matter of fact that there was inter se

bidding. It is also argued that the order was passed in haste without giving

any opportunity to the appellants.

       I am indeed surprised and pained at this unfortunate argument which

is being urged on behalf of the appellants through their counsel and which is

totally against the factual aspects which have been stated in the impugned

final judgment and decree. I may note that Supreme Court right from the

judgment in the case of State of Maharashtra v. Ramdass Srinivas

Nayak, AIR 1982 SC 1249 has held that if in case a factual narration as to

what transpired during the hearing is wrongly recorded in judicial

proceedings, then, the only way to get such factual aspects allegedly

wrongly recorded, corrected, is by immediately approaching the concerned

court which has recorded the factual aspects after the order/judgment is

passed. If the matter is not brought to the notice of the concerned court

when the matter is fresh in the mind of the said court immediately after it

being recorded, by moving of an application seeking correction of the
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 record, then, the matter must necessarily end there and it is not open to a

party in an appeal to canvass that factual aspects which are stated in a

judicial order have been wrongly recorded by the court. This judgment of

the Supreme Court in the case of Ramdass Srinivas Nayak (supra) has been

followed thereafter in at least over a dozen reported judgments. Admittedly,

the appellants have not filed any application till date before the trial court

challenging the factual aspects as narrated in the order, and therefore, it is

really a sorry state of affairs that unnecessary and expansive arguments are

being made against judicial record, and, which in fact in my opinion borders

on contempt of court. I, therefore, reject the argument that the trial court

judgment / impugned judgment does not correctly factually record the

narration of facts with regard to the appellants only offering `25,000/- per

sq. yd. and the respondent No.1 / plaintiff offering `30,000/- per sq. yd. with

respect to the properties for being purchased by inter se bidding. I may note

that counsel for the respondent No.1 has brought to my attention the fact that

the trial court has recorded that enough opportunities were given to the

appellants / defendants to increase their offer, but they failed to do so.

8.     The last argument which was urged on behalf of the appellants was

that there could not have been passed a final decree unless a valuation report

was called for so as to determine the value of the properties. Of course
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 finding out the value of a property through a valuation report is one of the

methods of determining value of property, however, inter se bidding

between the parties to a suit is also a well recognized mode for arriving at

the value of the properties, more so, when this is an agreed inter se bidding

procedure. The appellants having agreed to the inter se bidding procedure,

and having lost out in the bidding by offering a lower amount of `25,000/-

per sq. yd. instead of `30,000/- per sq. yd. which was offered by the

respondent No.1/ plaintiff, therefore, now cannot object to the final decree

by urging that the valuation report should have been called for before

passing of the final decree. I, therefore, reject this argument urged on behalf

of the appellants / defendants that the final decree could only have been

passed after valuation report of the property was filed for the value to be

arrived at.

9.     In view of the above, there is no merit in this appeal, which is

accordingly dismissed with costs of `20,000/- and which shall be paid

within a period of two weeks from today. The Supreme Court in the recent

judgment of Ramrameshwari Devi & Ors. v. Nirmala Devi & Ors., (2011) 8

SCC 249 has observed that it is high time that actual and realistic costs be

imposed. I am also empowered to impose actual costs in terms of Volume

V of the Punjab and Haryana High Court Rules and Orders (as applicable
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 to Delhi) Chapter VI Part I Rule 15.

10.    The appeal is accordingly dismissed. By the impugned judgment

respondent No.1 was given one month's time to pay the amount as per the

rate of `30,000/- per sq. yd., and since the impugned judgment was stayed

during the pendency of this appeal, the respondent No.1 / plaintiff is now

granted time upto 31.1.2012 to abide by the directions with regard to

payment as contained in the impugned judgment.

CM No.11267/2010 (u/O 41 R 27)

       Dismissed as not pressed.



                                              VALMIKI J. MEHTA, J.

DECEMBER 15, 2011 dk