Holiday Home vs R.P. Kapur Huf
2012 Latest Caselaw 1315 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%              REVIEW APPLICATION NO. 409/2011
                                      &
                   C.M.NOS. 14238/2011, 17701/2011
                                     IN
                            RFA NO. 490/2007


+                                  Date of Decision: 27th February, 2012

#     HOLIDAY HOME                    ........Review Petitioner/Appellant
!                              Through: Mr.G.L.Rwal, Sr. Advocate with
                               Mr. Rajesh Rawal, Advocate

                                  Versus

$     R.P. KAPUR HUF                                 ........Respondent
                                    Through: Mr. K.R. Chawla, Advocate


     CORAM:
*    HON'BLE MR. JUSTICE P.K.BHASIN

                                 ORDER

P.K.BHASIN, J:

This review application under Section 114 read with Order XLVII of the Code of Civil Procedure has been filed by the unsuccessful appellant for reviewing the judgment dated 20th December, 2010 whereby the appeal filed by it against the judgment and decree dated 18th July,

2007 passed by the trial Court in a suit for possession and mesne profits filed against it by the respondent/plaintiff directing its eviction from property no. A-2/11, Safdarjung Enclave, New Delhi(to be referred hereinafter as 'the suit property') was dismissed by this Court.

2. The facts which only are relevant for the disposal of this review application may be noticed first. The respondent/plaintiff had filed a suit for recovery of possession, mesne profits etc. against the review petitioner/appellant, inter-alia, on the ground that after the termination of its tenancy it had no right to remain in possession of the suit property.

3. The review petitioner/appellant had contested the suit, inter-alia, on the grounds that the respondent/plaintiff had no locus standi to file the suit as it was not the owner of the suit property and in any case the suit for possession was not maintainable as its tenancy had not been terminated before the filing of the suit.

4. During the trial, the review petitioner/appellant had examined one official from the Delhi Development Authority(DW-9), as one of its witnesses, who had deposed that the lease of the land on which suit property was built had been cancelled in the year 1972 and its formal possession was taken over in the year 1984. Relying upon that statement of DW-9 the review petitioner/appellant had urged before the trial Court that with the cancellation of the lease of the land by DDA, the

respondent/plaintiff could not maintain the suit for possession etc. The learned trial Court dealt with this aspect of the matter in its judgment while deciding issue no.1 regarding the objection of locus standi of the respondent/plaintiff and rejected the objection.

5. Finally, the suit for possession etc. came to be decreed in favour of the respondent/plaintiff. Feeling aggrieved by the decision of the trial Court, the review petitioner (defendant in the suit) had filed an appeal before this Court. During the pendency of the appeal the review petitioner/appellant had filed an application under Order XLI Rule 27 CPC(being C.M.No. 9422/09) seeking permission to place on record certain documents which showed that the Estate Officer had already initiated proceedings under the Public Premises(Eviction of Unauthorised Occupants) Act for the eviction of the review petitioner/appellant from the suit property as a result of cancellation of the lease of the land under the suit property in favour of the respondent/plaintiff by the Delhi Development Authority, as the paramount lessor. In respect of that application this Court had recorded the consent of the counsel for the respondent/plaintiff on 21.07.2009 that those documents could be taken into consideration by this Court while deciding the appeal but without prejudice to the stand of the respondent/plaintiff that the on going proceedings before the Estate Officer had no effect of the respondent/plaintiff's right to get back the possession of the suit property from the appellant/defendant (review petitioner now).

6. Before this Court also the review petitioner/appellant had pressed into service the point that as a result of the cancellation of the lease of the land underneath the suit property by the Delhi Development Authority the respondent/plaintiff was left with no right to seek possession of the suit property. That submission of the learned senior counsel for the review petitioner/appellant was in fact the main plea pressed into service in appeal but the same was rejected by this Court and finally the appeal was dismissed by this Court vide judgment dated 20th December, 2010.

7. Aggrieved by the judgment of dismissal of its appeal, the review petitioner/appellant filed a Special Leave Petition before the Supreme Court which was disposed of vide order dated 25th April, 2011 which is re-produced below:-

"This Court has heard the learned counsel for the parties. The learned counsel for the petitioner seeks permissions to withdraw the Petition with a view to filing review application before the High Court. Permission, to withdraw the Petition, as prayed for, is granted. The Special Leave Petition stands disposed of as withdrawn."

8. Thereafter this review application came to be filed before this Court alongwith an application for condonation of delay in filing the review application (being CM No. 14238/2011) wherein the review petitioner/appellant had prayed for review of the judgment dated 20th

December, 2010 passed by this Court dismissing its appeal. In the application of condonation of delay it was claimed that there was a delay of 38 days given the period for filing the review petition had started for 25th April,2012 when the Supreme Court had permitted withdrawal of special leave petition. Subsequently, CM No. 17701/2011, which was also for condonation of delay in filing of review application, came to be filed in which it was claimed that since the review petitioner had approached the Supreme Court first, bona fide, the delay in moving review application deserved to be condoned even if limitation period was to run from the dated of passing of the judgment by this Court i.e. 20.12.2010.

9. While hearing the counsels for the parties on their applications for condonation of delay in filing of the review application learned counsel for the respondent also raised an objection that the review application itself was not maintainable after the review petitioner had approached the Supreme Court against the judgment dated 20th December,2010 passed by this Court and had withdrawn the Special Leave Petition. In view of this objection, arguments were advanced from both the sides even on the point of maintainability of the review petition also. The learned counsel had also submitted that they would make their submissions on the merits of the review application in case this Court would condone the delay in the filing of the review application and also hold the same to be maintainable.

10. After having heard the learned counsel for the parties on the two applications for condnation of delay, I am of the view that considering the fact that the review petitioner having first approached the Supreme Court cannot be said to have not done that bonafide and that the Supreme Court allowed it to withdraw the Special Leave Petition to enable it to approach this Court with a review application, the delay of 84 days in filing the review application deserves to be set aside. So, CM Nos. 14238/2011 and 17701/2011 are allowed.

11. Coming now to the objection regarding maintainability of the review petition raised on behalf of the respondent I am of the view that the review petitioner/appellant having filed a Special Leave Petition against the judgment dated 20th December, 2010 passed by this Court, of which review is now being sought and withdrawing the same with liberty to file this review application is not debarred from filing the review application. On this aspect of the matter some judgments were cited from both the sides but I need not refer to those judgments in view of the fact that a Bench of three Judges of the Hon'ble Supreme Court in "Kunhayammed & Ors. Vs. State of Kerala & Anr.", AIR 2000 SC 2587 had held that filing of Special Leave Petition and its getting dismissed does not debar the aggrieved party from once again approaching the High Court with a review application in case grounds for review were considered to be made out. Relying upon this judgment, the

Hon'ble Supreme Court in a very recent judgment in "Gangadhara Palo vs. The Revenue Divisional Officer & Another", 2011 (3) SCALE 498, has taken the same view regarding the maintainability of a review petition before the High Court after the dismissal of Special Leave Petition against the judgment of the High Court.

12. I, therefore, reject the objection raised on behalf of the respondent that this review petition is not maintainable.

P.K. BHASIN,J February 27, 2012