Vinod Kumar Babuta vs Anil Kumar Babuta & Ors.
2011 Latest Caselaw 4374 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 07.09.2011

+      CM (M) No. 1040/2011 and CM No. 16775/2011 (stay)


VINOD KUMAR BABUTA                              ...........Appellant
                 Through:            Mr. Satya Narayan, Advocate.

                       Versus

ANIL KUMAR BABUTA & ORS.                         ..........Respondents
                  Through:           None.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers 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


INDERMEET KAUR, J. (Oral)

CM No. 16776/2011 (exemption) in CM (M) No. 1040/2011

Exemption allowed subject to just exceptions.

CM (M) No. 1040/2011

1. The order impugned before this court is the order dated

03.06.2011 which had dismissed the review petition of the

petitioner seeking review of the order dated 05.02.2010. In fact,

there were two applications which had been filed by the petitioner

before the Trial Court; the first application was under Order 18

Rule 4 read with Order 47 Rule 1 of the Code of Civil Procedure

(hereinafter referred to as 'the Code') and the second application

was under Section 5 of the Limitation Act.

2. The gist of the two applications show that a review was

sought of the order dated 05.02.2010. Record shows that an

application under Order 11 Rule 14 of the Code had first been

filed by the plaintiff seeking permission to place on record certain

documents which included a copy of Will dated 16.04.1980

purported to have been executed by the father of the plaintiff in

his favour; contention was that this Will has been received from

the DDA office only now and as such could not be placed on

record earlier. This application seeking permission to place on

record this Will had been dismissed on 05.02.2010.

3. Record shows that the present suit was a suit for partition,

declaration and permanent injunction; after the written statement

had been filed, issues had been framed; thereafter, plaintiff

evidence closed on 06.10.2003; defendant evidence was led and

which was finally closed on 13.07.2009; it was only thereafter that

this application under Order 11 Rule 14 of the Code had been

filed; this application had been dismissed by a speaking order

dated 05.02.2010; admittedly, no appeal has been filed against

that order; the petitioner had sought a review only. Although this

application has sought a review of the order dated 05.2.2010; it

has been filed under Order 47 Rule 1 of the Code read with the

application is under Order 47 of the Code but the provisions of

Order 7 Rule 14, Order 18 Rule 4 and Order 18 Rule 17 of the

Code have also been appended. The prayer in the application,

however, seeks a review of the order dated 05.02.2010 whereby

his application under Order 11 Rule 14 of the Code had been

dismissed.

4. The parameter and guidelines laid down for considering an

application for review are contained in Order 47 of the Code;

impugned order has rightly held that there is no error which is

apparent on the face of the record or no fact is sought to be

brought on record which after exercise of due diligence was not

within the knowledge of the petitioner at the time when the

impugned order was passed; in fact, there is not a single averment

of this kind in the review application. The review petition was thus

rightly dismissed; the impugned order in no manner calls for any

interference.

5. The powers of superintendence available to this court under

Article 227 of the Constitution of India are to be exercised only

when there is a patent illegality or a manifest error which is

apparent on the face of the record; no such case is made out.

6. Petition is without merit; it is dismissed.

INDERMEET KAUR, J.

SEPTEMBER 07, 2011/rb