Pankaj Prakash vs Sarita Periwal & Anr
2011 Latest Caselaw 1235 Del

20
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA 492/2009

%                             Judgment Delivered on: 01.03.2011

      PANKAJ PRAKASH                   ..... Appellant
                         Through:Mr.Amit S.Chadha, Sr.Adv. with
                                 Ms.Kaadambari, Mr.Arun Vidyarathi &
                                 Ms.Namitha Mathews, Adv.

                  versus

      SARITA PERIWAL & ANR               ..... Respondent
                     Through:Mr. Avnesh Garg, Adv.

      CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI

          1. Whether the Reporters of local papers may be allowed to
             see the judgment?
          2. To be referred to Reporter or not?
          3. Whether the judgment should be reported in the Digest?

G.S.SISTANI, J. (ORAL)

CM No.23184/2010

1. This is an application filed by the appellant seeking clarification

of the orders dated 06.08.2010 and 25.08.2010 passed by this

court. Necessary facts to be noticed for the disposal of this

application are that two suits (suit for possession, recovery of

`4,36,008/- and mandatory injunction and a suit for recovery of

`94,008/-, for outstanding hire charges towards fittings and

fixtures provided in the suit property), were instituted by the

respondents before the trial court. The appellant contested

both the suits and filed their written statements. Subsequent

thereto respondent moved applications under Order 12 Rule 6

of the Code of Civil Procedure. Both the applications were

allowed and decree was passed which resulted in filing of two

Regular First Appeals (RFA No.490/2009 & RFA No.492/2009).

On 06.08.2010 both the appeals were taken up for hearing and

on an understanding arrived at between counsel for the parties,

the appeals were allowed and the matter was remanded back

and directions were issued to the trial court to hear and dispose

of the matter expeditiously. It was also agreed between the

parties that an amount of `6,00,000/- which was deposited by

the appellant, be released in favour of the respondent along

with the interest accrued thereon, subject to the respondent

providing security to the satisfaction of the trial court. In view

of the stand taken by the parties, the impugned judgment and

decree dated 20.11.2009 was set aside.

2. Counsel for the appellant submits that the necessity for filing

the present application has arisen on account of the fact that

after the matter was remanded back to the trial court, the

respondents made a grievance before the trial court that the

monies as ordered by the trial court vide its order dated

22.10.2007 while deciding an application under Order 39 Rule

10 of the Code of Civil Procedure, had to be deposited by the

appellant (defendant before the trial court) as the order stood

revived and was to be complied with by the appellant.

Thereafter on an oral prayer made by counsel for the

respondent herein, the trial court directed the appellant herein

to deposit the remaining amounts within one month.

3. Counsel for the appellant submits that the order passed by the

trial court on an application under Order 39 Rule 10 of the Code

of Civil Procedure was assailed by the appellant by filing an

FAO(OS) No.442/2007 and the High Court initially while granting

stay directed 50% of the total amount to be deposited before

trial court. Thereafter an amount of `6,48,000/- was deposited

with the trial court in accordance with the directions of the High

Court by the appellant. The respondents filed a contempt

petition being Cont.Cas(C)No.468/2008. Subsequently, High

Court took a view that the exact amount of the amount due in

terms of the order of the learned trial court in the application

under Order 39 Rule 10 of the Code of the Civil Procedure was

not deposited by the appellant, thus, the stay was vacated on

19.08.2009. The appellant thereafter filed a review petition

No.341/2009 in FAO in which notice was issued. In the

meanwhile the learned trial court decreed both the suits on the

applications filed by respondent under Order 12 Rule 6 of the

Code of Civil Procedure. A decree for the same amount was

passed as was directed on the application under Order 39 Rule

10 of the Code of Civil Procedure. In the appeals the judgment

of the trial court passed under Order 12 Rule 6 of the Code of

Civil Procedure was stayed by the High Court.

4. Mr.Chadha, learned senior counsel for the appellant submits

that when the appeals were listed before this court on

06.08.2010 the understanding was arrived at between both the

counsel was on three issues : (i) the judgment and decree of the

trial court was to be set aside; (ii) direction was to be issued to

the trial court to hear and dispose of the matter expeditiously;

and (iii) the sum of `6,00,000/- which stood deposited along

with interest accrued thereon was to be released in favour of

the respondents.

5. It is further contended by learned senior counsel for the

appellant that the prayer made before trial court for payment of

the entire amount as ordered vide order dated 22.10.2007

while deciding the application under Order 39 Rule 10 of the

Code of Civil, is misconceived and in contravention of the

understanding arrived at in Court, which is evident from the fact

that it was agreed that only a sum of `6,00,000/- with interest

accrued thereon would be released in favour of the respondent.

He also submits that in case the interim order was to be revived

and the full amount, as per order dated 22.10.2007 was to be

deposited by the appellant, then the entire purpose of

remanding the matter back would be defeated as the amount,

ordered to be paid under Order 39 Rule 10 CPC and the amount

as per the decree, is the same.

6. Learned senior counsel further submits that after filing of the

RFAs, both the review petition filed in the FAO, the FAO and the

contempt petition, were dismissed granting liberty to the

parties to raise the grounds in the RFA which had already been

filed by that time. Learned counsel also points out that an

observation was made by the court in the CCP that the order

passed in the application under Order 39 Rule 10 of the Code of

Civil Procedure has merged with the final decree.

7. Learned counsel for the respondent submits that according to

his understanding, in view of the fact that CCP and FAO stood

dismissed, the interim order passed on an application under

Order 39 Rule 10 of the Code of Civil Procedure would stand

automatically revived as a result of which the appellant would

have to pay the amount as directed by the order of the trial

court on the application under Order 39 Rule 10 CPC. Mr.Garg,

further submits that the order of 6th August, 2010 also does not

categorically state that the order passed in Order 39 Rule 10 be

also set aside. The counsel submits that this issue was never

agitated before this Court.

8. I have heard counsel for the parties. The basic facts are not in

dispute. Both the appeals were remanded back by this court on

an understanding arrived at between counsel for the parties

that the trial court would hear and dispose of the matter

expeditiously. It was also agreed that the amount of

`6,00,000/- which was lying deposited with the trial court

pursuant to the order passed by the High Court in the FAO

would be released in favour of the respondent with interest

accrued thereon. Ordinarily there would be no quarrel with the

proposition that in case the matter is remanded back, the

interim order would also stand revived. However, this is not an

absolute rule as is evident from the facts of this case. The

interim order was passed on an application filed by respondent

under Order 39 Rule 10 of the Code of Civil Procedure and the

trial court subsequently on an application filed by respondent

under Order 12 Rule 6 of the Code of Civil Procedure decreed

the suit for the same amounts. The order passed under Order

39 Rule 10 of the Code of Civil Procedure was assailed by the

respondent by filing FAO in which initially stay was granted,

subject to the appellant depositing 50% of the amount.

Consequent to this order, appellant admittedly deposited

`6,00,000/- with the trial court. The FAO could not attain finality

as in the meanwhile a final decree was passed. Both the FAO

and the CCP filed by respondent were dismissed, granting the

parties liberty to raise grounds taken by them in the FAO and

contempt, in the RFA.

9. While disposing of the matter on 06.08.2010 a specific order

was made on the basis of understanding arrived at between the

parties that `6,00,000/- with interest accrued thereon be

released in favour of the respondent. While counsel for the

respondent has contended that he had not consented that the

order passed on an application under Order 39 Rule 10 of the

Code of Civil Procedure be set aside. I am unable to agree with

this submission of counsel for the respondent, as a composite

order was passed and what the respondent did not achieve

directly, cannot be allowed to achieve the same indirectly. It

was the obligation of counsel for the respondent to clarify his

stand on 06.08.2010 in which case it would not have been

necessary for this court to pass a direction for release of

`6,00,000/- to respondent and this amount would have

continued to remain deposited with the trial court or as per the

understanding of respondent, he could have sought a direction

for release of the entire amount, as ordered under Order 39

Rule 10 of the Code of Civil Procedure. No such prayer was

made. The stand sought to be taken by counsel for respondent

to say, the least is an afterthought and against the

understanding arrived at in court.

10. In this case if the order passed on application under Order 39

Rule 10 CPC is revived, it would amount to dismissal of the

appeal and FAO without any hearing, and further the amount

directed to be paid on the application under Order 39 Rule 10 of

the Code of Civil Procedure and the order passed on an

application under Order 12 Rule 6 of the CPC which resulted in

passing of the decree is the same. Accordingly it is clarified

that the respondent is only entitled to the amount deposited by

the appellant which is `6,00,000/- and interest accrued thereon,

subject to the final outcome of the suit.

11. With above clarifications, application stands disposed of.

G.S. SISTANI, J.

March 01, 2011 Bisht/ssn