Shri Amit Jain vs Harvinder Kaur
2012 Latest Caselaw 656 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     Review Petition No.512/2011 in CS(OS) No.314/2011

                              Date of decision:           30th JANUARY, 2012


      SHRI AMIT JAIN                                           ..... Plaintiff
                             Through        Mr.Anil Kumar Aggarwal, Adv.


                                    Versus


      HARVINDER KAUR                                             ..... Defendant
                    Through                 Mr. Siddhartha Tanwar, Adv. with
                                            Ms. Priyanka Singh, Adv.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL


Review Petition No.512/2011 in CS(OS) No.314/2011

1.

By this petition, Smt. Harvinder Kaur, the defendant in the

present suit, seeks review and recall of the order dated 5th August,

2011. It is necessary to deal with certain essential facts which are

necessary for adjudication of the present review petition.

2. According to the plaint, Mr. Amit Jain, plaintiff in the present

case, entered into an agreement to sell dated 16th October, 2010 with

Smt. Harvinder Kaur for purchasing the property bearing new

no.IX/1312 Mandir Wali Gali, (Old No.319/13-14, Plot No.45), Gandhi

Nagar, Delhi ad measuring 100 sq. yards consisting of a built up

ground floor; front half portion at the first floor and second floor and

Review Petition No.512/2011 in CS (OS) No.314/2011 1 all rights over the roof; as specifically shown in red colour in the site

plan attached with the plaint (hereinafter referred to as "suit

property") for a total sale consideration of Rs.2,09,50,000/-. The

plaintiff claims to have made payment of Rs.10,00,000/- by cheque

and Rs.1,00,000/- in cash being a total of Rs.11,00,000/- towards part

payment of the consideration. Rest of the amount was to be payable

on or before the 5th January, 2011 at the time of handing over of

physical vacant possession of the suit property to the plaintiff.

3. On 15th December, 2010, the plaintiff claims to have heard

rumours of some disputes amongst family members of the

previous/ex-owners of the suit property and sought necessary

clarification from the defendant. The plaintiff received assurance from

the defendant and her husband that the suit property was free from

all encumbrances and that there was no dispute over the suit

property; that the rumours about the dispute if any, between the ex

owners shall have no bearing on the right, title and interest of the

defendant over the property. The defendant was claiming right and

title in the property under a sale deed dated 15th September, 2010,

executed in her favour by Mr. Trilochan Singh and Mr. Harinder Pal

Singh. The defendant provided crossed copies of the registered

documents of the chain of title to the plaintiff.

4. On 18th December, 2010, the defendant cited some exigency and

requested the plaintiff for further payment of Rs.19,00,000/-.

Review Petition No.512/2011 in CS (OS) No.314/2011 2 However, the plaintiff did not accede to the request of the

defendant on account of rumours and decided to go strictly by the

terms and conditions of the agreement. The plaintiff claims that

thereafter the defendant avoided the plaintiff on one pretext or the

other. On the request of the defendant and her husband, time to

execute the sale deed was mutually extended by one month i.e. till 5th

February, 2011. The plaintiff claims that on 21st January, 2011, he

came to know that the defendant and her husband were approaching

other property dealers of the area to sale out the property and

understood that the defendant had dishonest intention due to which

they were avoiding the plaintiff and approaching the other property

dealers.

5. In para 12 of the plaint, the plaintiff asserts that on conducting

enquiries, he came to understand that in order to avoid fulfillment of

her contractual obligation towards the plaintiff under the agreement

dated 16th October, 2010 of her husband, the defendant had set up a

frivolous and fictitious dispute in connivance with the previous owners

of the suit property so as to compel the plaintiff to withdraw his claims

and rights over the same and not to seek enforcement and

compliance of the agreement dated 15th October, 2010. It is

complained that the defendant and her family members were bent

upon breaching the agreement to sell and to cheat the plaintiff; that

the breach is exclusively on the part of the defendant and that the

Review Petition No.512/2011 in CS (OS) No.314/2011 3 plaintiff was always ready to comply with the agreement on his part

subject to fulfillment of reciprocal conditions on the part of the

defendant.

6. The defendant had filed a Caveat No.126/2011 and

consequently, on receipt of advance copy of the plaint, was

represented before the court on 11th February, 2011 when the suit

was first listed. The defendant was represented by Mr. Vineet Bahl,

Advocate in court and her husband Mr. Jitender Singh was also

present in court.

7. The above facts pointed out on behalf of the plaintiff were duly

noticed in paras 1 to 5 of the order passed on 11th February, 2011.

This court had also noticed the following submissions made on behalf

of the defendant and the following directions were consequently made

on 11th February, 2011:-

" xxx 6. Mr. Jitender Singh, husband of the defendant is present. He submits that the plaintiff failed to abide by the terms and conditions of the agreement to sell and consequently no equity enures in favour of the plaintiff.

It is submitted that, however, without prejudice to the rights and contentions of the defendant, the defendant would be willing to explore the possibility to amicably settle the matter by way of negotiations.

7. Mr. Anil Aggarwal, learned counsel for the plaintiff states that the plaintiff would not oppose such mediation without prejudice to his rights and claims. In view of the above, it is directed as follows:-

             (a)    the parties shall appear before the Delhi
             High Court Mediation & Conciliation Centre on
             18th February, 2011 at 3.30 pm;

     Review Petition No.512/2011 in CS (OS) No.314/2011                       4
                (b)    During the course of mediation, it shall be

open to the mediator to join any other person(s) considered necessary for effective mediation and dispute resolution;

(c) In view of the pendency of the mediation, the defendant shall not file its written statement to this plaint."

8. It is apparent from the above that this court had, therefore,

specifically directed that the filing of the written statement would be

kept in abeyance.

9. The above narration of facts would show that the time for making

the payment in terms of the agreement to sell dated 16th October,

2010 had expired on the 5th January, 2011. On the 20th January, 2011,

the defendant sent a caveat petition to the plaintiff which was also

filed in this court. This caveat was duly received by the plaintiff on

the 21st January, 2011.

10. The plaintiff filed the suit (CS (OS) No.314/2010) seeking a

decree of specific performance of the agreement to sell dated 16 th

October, 2010 as well as a decree for permanent prohibitory

injunction restraining the defendant from dealing with the suit

property in any manner. An alternative prayer for a decree for

recovery of Rs.11,00,000 with interest and damages of

Rs.2,00,00,000/- with interest was made. Along with the suit, the

plaintiff filed the application being IA No.2147/2011 seeking an ad

interim ex parte injunction against the defendant.

Review Petition No.512/2011 in CS (OS) No.314/2011 5

11. The parties to the suit were consensually referred to the Delhi

High Court Mediation & Conciliation Centre and mediation proceedings

were held on 18th February, 2011.

12. In the meantime, IA No.2929/2011 (under Order 1 Rule 10 of the

CPC seeking impleadment) and IA No.2905/2011 (under Section 151

CPC seeking leave to file documents) by Harmeet Singh were filed in

the present case. These applications were listed before the Joint

Registrar on 23rd February, 2011 when the applicant Harmeet Singh

was present along with the counsel. Notice was directed to issue in

the impleadment application. On 23rd February, 2011, the learned

Joint Registrar also recorded a statement by learned counsel for the

applicant-Shri Harmeet Singh in the suit that the matter was fixed

before the Mediation Cell on 3rd March, 2011. IA No.2929/2011 being

the impleadment application was listed before the Joint Registrar

thereafter on 18th March, 2011 when counsel for the plaintiff accepted

notice and stated that no reply was necessary and he would be

straightway arguing the application. This application was directed to

be listed before the court on 22nd March, 2011 which was the date

already fixed.

13. On the 22nd March, 2011, Ms.Harvinder Kaur, the defendant was

not represented. Mr. Anil Kumar Aggarwal, learned counsel for the

plaintiff submitted before the court that the parties to the suit would

be appearing before the Delhi High Court Mediation & Conciliation

Review Petition No.512/2011 in CS (OS) No.314/2011 6 Centre on 30th March, 2011 at 3.30 p.m., the date fixed by it. Counsel

for the applicant in IA No.2929/2011, sought an adjournment of

hearing in this application.

14. In this background, the matter was directed to be listed before

the court on 5th August, 2011.

15. On 5th August, 2011, when the matter was taken up for hearing,

the counsel for the defendant was not present. The defendant was

represented by Mr. Sameer Bhatnagar, Advocate, a junior who was

appearing on behalf of counsel for the defendant. Mr. Harmeet Singh,

the applicant in IA No.2929/2011 was neither present nor represented.

In this background, the impleadment application IA No.2929/2011 was

dismissed for default of appearance.

Mr. Anil Aggarwal, learned counsel for the plaintiff had submitted

that the plaintiff is ready, willing and able to pay the balance sale

consideration at any time and is desirous of completion of the

transaction. It was submitted on the 5th of August, 2011 that the

defendant is dishonestly refusing to abide by the agreement. In para

5 of the order dated 5th August, 2011, it is noted that there is no

opposition to either the suit or the application despite opportunity

having been given.

16. In this background, it was observed that the plaintiff had made

out a prima facie case for grant of ad interim protection and that

irreparable loss and damage shall enure to the plaintiff in case the

Review Petition No.512/2011 in CS (OS) No.314/2011 7 defendant was not prohibited from further transacting with the suit

property. It was also observed that the balance of convenience,

interest of justice and equity were in favour of the plaintiff and against

the defendant. In view thereof, the defendant was prohibited from

transferring, alienating, parting with possession in any manner the

suit property or any portion thereof till disposal of the suit. The said

application was disposed of in terms of this order of injunction.

17. So far as the suit was concerned, on 5th August, 2011, this court

further noted that no written statement has been filed, overlooking

the earlier order interdicting its filing. The matter was posted before

the Joint Registrar on 5th September, 2011 for completion of pleadings

and before the court on 18th October, 2011 for framing of issues.

18. At this stage, taking advantage of the error which had occurred

in the recording of the order on 5th August, 2011, the plaintiff on 8th

August, 2011 without further ado, filed IA No.12897/2011 (under

Order VIII Rule 10 & 11 of C.P.C.) contending that time of about six

months had passed since the defendant appeared through her

counsel on 11th February, 2011 and accepted the court notice on the

suit. It was further submitted that the defendant inter alia had failed

to comply with the requirement of Order 8 Rule 1 of the CPC as "she

had failed to file the written statement in advance within the

prescribed period of thirty days expiring on 14th March, 2011 from 11th

February, 2011" or "within maximum permissible period of ninety

Review Petition No.512/2011 in CS (OS) No.314/2011 8 days". It was further averred by the plaintiff that in the hearing held

on 5th August, 2011, "the defendant had failed to show any defence to

the plaintiff's application" for interim relief which was disposed of

after granting injunction order against the defendant. In this

background, the plaintiff prayed that the defendant's right of defence

was liable to be struck out and pronouncement of the judgment

decreeing the suit in favour of the plaintiff.

19. It is unfortunate that even in this application the plaintiff does

not even remotely draw the court's attention to the direction which

was made by the court on 11th February, 2011 specifically directing

that in view of the pendency of the mediation, the defendant shall not

file its written statement to the plaint.

20. The direction by the court putting in abeyance the filing of the

written statement was an important factor. It was the non-filing of the

defence by the defendant which persuaded this court to pass the

order of injunction on 5th August, 2011. It is important to note that

so far as the factual situation is concerned, nothing had changed

between 11th February, 2011, when the suit was first taken up and the

5th August, 2011 when the order of injunction was made. The

payment position remained the same.

21. IA No.2147/2011 which was the plaintiff's injunction application,

was pressed on behalf of the plaintiff resulting in the passing of an

order of injunction which is the subject matter of the present review

Review Petition No.512/2011 in CS (OS) No.314/2011 9 petition. This court had also directed on the 11th of February, 2011

that the defendant shall not file its written statement to the plaint for

the reason that the parties had consensually been referred to

mediation. The mediation process was also ongoing.

22. I may also notice the vehement argument of Mr. Anil Aggarwal,

learned counsel for the plaintiff to the effect that Shri Jitender Singh

(husband of the sole defendant) is not a party to the suit and that

there has been no representation of the defendant at all. It is

submitted that in para 3 of the order dated 11th February, 2011, this

court had directed issuance of summons to the defendant which were

returnable before the court on 22nd March, 2011, which directions

were not revoked. Consequently, the written statement had to be

filed within the period fixed by the CPC.

This submission has to be noted only for the sake of its rejection.

23. By para 3 of the order dated 11th February, 2011, the plaintiff

was directed to take steps for issuance of summons as well as notice

of IA No.2147/2011 by ordinary process, registered AD post and

through approved courier. The plaintiff has till date not taken any

steps for issuance of the summons and notice of IA No.2147/2011 to

the defendant. If the submission made by the plaintiff is accepted,

then summons have till date not been served upon the defendant.

Therefore, the opportunity to file the written statement or reply to IA

No.2147/2011 has not arisen till date since the defendant has not

Review Petition No.512/2011 in CS (OS) No.314/2011 10 been served with the formal summons. However, the plaintiff

accepted the position that the defendant had appeared, was

represented and that the filing of the defence by the defendant had

been kept in abeyance.

24. In para 6 of RA No.512/2011, it has been pointed out that Mr.

Sameer Bhatnagar, Advocate who appeared for counsel for the

defendant, was a new comer to the bar. He has not filed any

vakalatnama. It is noteworthy that the caveat on behalf of the

defendant was filed through Shri Vineet Bahl, Advocate who had

appeared on her behalf on 11th February, 2011 before this court.

However, it had been pointed out to learned counsel that inasmuch as

he (Mr. Vineet Bahl) was also a witness to the execution of the

agreement to sell dated 16th October, 2010, he may be required to

depose on behalf of the defendant and consequently it may not be

appropriate for him to appear in the matter.

25. The review petition has consequently been filed through learned

counsel who has argued the same on behalf of the defendant.

26. Mr. Vineet Bahl, Advocate was not present on the 5th of August,

2011 in court. It has been submitted that Mr.Vineet Bahl, Advocate

had got held up in the matter relating to bail of an accused person at

the district courts and had consequently requested his colleague Shri

Sameer Bhatnagar, Advocate to appear in the matter and make a

request for adjournment on account of pendency of the mediation

Review Petition No.512/2011 in CS (OS) No.314/2011 11 proceedings. Mr. Siddhartha Tanwar, learned counsel for the

defendant has contended that the defendant took advantage of the

absence of counsel, presence of a newcomer to the Bar and pressed

for disposal of IA No.2147/2011 concealing the afore-noticed material

facts.

27. The applicant has pointed out that the plaintiff at no stage

informed the mediator that he was not interested in the proceedings.

The review petitioner states that even on 9th August, 2011, the

plaintiff attended the mediation proceedings when after a long

discussion for more than two hours, the parties sought more time to

reach an amicable settlement and that the matter was, therefore,

adjourned to 19th August, 2011 on the joint request of the parties.

28. In fact, the right to file the written statement by the defendant

was not foreclosed even on 5th August, 2011 when the matter was

adjourned for completion of pleadings. Therefore, the filing of IA

No.12897/2011 under Order 8 Rule 10 of the CPC by the plaintiff is

completely misdirected and unfortunate. At best, the directions

made on 5th August, 2011 could be construed as a direction to file the

written statement. However, given the fact that the same was kept

in abeyance on account of mediation proceedings, which position had

not changed on 5th August, 2011, the filing of the written statement

was still in abeyance.

Review Petition No.512/2011 in CS (OS) No.314/2011 12

29. Learned counsel for the plaintiff has vehemently urged that the

defendant had been restrained from creating third party interest in

respect of the suit property by an order passed on 17th February, 2011

by the court of Mr. Sanjay Khanagwal, the Administrative Civil Judge

(East), Karkardooma Courts, Delhi in Suit No.21/2011 entitled Shri

Harmeet Singh Vs. Shri Harinder Pal Singh.

30. It is contended that the plaintiff has been served with the

summons in CS (OS) No.1887/2011 entitled Harmeek Singh against

the present plaintiff and the defendant in respect of his alleged

forced eviction from the suit property by the present defendant. In

this case, an order dated 17th August, 2011 has been passed directing

the parties to maintain status quo with regard to title and possession

with regard to the suit property. The plaintiff has claimed that he

learnt about the order dated 17th August, 2011 from the proceedings

in CS (OS) No.1887/2011 only.

31. The plaintiff's contends that because of the orders dated 17th

February, 2011 and 17th August, 2011, no useful purpose would be

served by the revocation of the order passed by this court on 5th

August, 2011.

32. This submission is completely erroneous in law. A prayer for

injunction has to be tested in the light of the facts placed by the

plaintiff in the case before the court. Merely because the suit property

is the subject matter of litigation at the instance of different persons

Review Petition No.512/2011 in CS (OS) No.314/2011 13 and an injunction may have been passed in any of these cases, would

not ipso facto entitle another plaintiff to the same injunction. The

plaintiff has to rest and establish its entitlement to injunction on the

facts of its case and satisfy the essential ingredients therefore.

33. Thus, the order dated 17th February, 2011 passed by Shri Sanjay

Khanagwal, Senior Civil Judge or the order dated 3rd September, 2011

in Suit No.1887/2011 in favour of Shri Harmeek Singh would not

entitle the present plaintiff to an order of injunction in his favour.

34. In this behalf, it is necessary to note the submissions made on

behalf of the defendant. It is urged by Mr.Siddhartha Tanwar that

Mr. Harmeet Singh is in collusion with the present plaintiff and that in

Suit No.21/2011 filed on 27th January, 2011, he has relied on

documents relating to the transaction which is the subject matter of

the present suit. It is contended that the plaintiff was conscious of the

fact that he had committed breach of the agreement dated 16 th

October, 2010 and has incited Shri Harmeet Singh to file the other

litigation.

35. Interestingly, Mr. Harmeet Singh filed the impleadment

application being IA No.2929/2011 and then did not press the same

which was dismissed in default of appearance on 5th August, 2011.

the record of the case was before this court on the 5th August, 2011.

Apart from the concealment on the part of the plaintiff, it could

very well be urged that injunction was on account of error by the court

Review Petition No.512/2011 in CS (OS) No.314/2011 14 in overlooking these material facts and that the record of the case was

before this court on the 5th August, 2011. The defendant can then

urge that the order is a result of a mistake of the court. On the

aspect of a mistake of the court, it has been held in AIR 1966 SC

1631 Jang Singh Vs. Brij Lal & Ors. as follows:-

"6. xxx There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit".

36. This principle was reiterated by the Supreme Court in the

judgment reported at (1989) 4 SCC 403 Johri Singh Vs. Sukh Pal

Singh & Ors. wherein the court held that it would extend the time

fixed to do any act by the court when it finds that the mistake or the

failure to do the same within the stipulated period is bona fide, and

was not an act of indicative of negligence or inaction and when it finds

that the mistake was the result of, or induced by an action of the court

applying the maxim "actus curiae neminem gravabit" i.e. an act of the

court shall prejudice no man.

37. On the same issue, in 2004 (2) SCC 783 Karnataka Rare

Earth and Anr. Vs. Senior Geologist Department of Mines &

Geology & Anr. the court observed as follows:-

Review Petition No.512/2011 in CS (OS) No.314/2011 15 "The doctrine of actus curiae neminem gravabit is not confined in its application only to such acts of the Court which are erroneous; the doctrine is applicable to all such acts as to which it can be held that the Court would not have so acted had it been correctly apprised of the facts and the law."

(underlining by me)

It was further held that the principle of restitution would be

attracted in such an eventuality.

38. In AIR 2003 SC 4482 South Eastern Coalfields Ltd. Vs.

State of M.P. & Ors. on this aspect it was held as follows:-

"27. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise corned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the set of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of

Review Petition No.512/2011 in CS (OS) No.314/2011 16 the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."

(Emphasis supplied)

39. It needs no elaboration that the maxim actus curiae neminem

gravabit" is a maxim of equity - an act of court shall prejudice no

man. It is founded upon justice and good sense and serves as a safe

and certain guide for administration of justice.

40. In 1869 3 AC 465 Alexander Rozer Charles Carnie Vs. The

Comptoir D'Escompte De Paris, the Privy Council had observed as

follows:-

"xxx one of the first and highest duties of all Courts is to take care that the act of the Court does not injury to any of the Suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court

Review Petition No.512/2011 in CS (OS) No.314/2011 17 as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."

41. I have no manner of doubt that it is the bounden duty of this

court to see that if a party has been harmed by mistake of court, he

should be restored to the position that he was occupying but for such

mistake. It is trite that there is no higher principle for the guidance of

the court than the one that no act of the court should harm any

litigant.

42. It is manifest from the above that the directions keeping the

filing of the written statement in abeyance on 11th February, 2011,

completely escaped the notice of the court while passing the order on

5th August, 2011. The same was obviously not pointed out by or on

behalf of the plaintiff as well. It was the non-filing of the opposition to

the suit and the application which weighed with the court in passing

the order dated 5th of August, 2011 inasmuch as it has been noted in

para 5 of the order that there was no opposition "despite opportunity

having been given". This was evidently a completely position, so far

as the record of the case was concerned.

43. Another distressing fact is pointed out. Mr. Siddhartha Tanwar,

Advocate who has filed the present review petition on behalf of the

defendant, has pointed out that the dishonesty of the plaintiff in

conducting the case is writ large on the face of the record. I find that

on 11th February, 2011 with the consent of the plaintiff, the parties

Review Petition No.512/2011 in CS (OS) No.314/2011 18 had been referred to the Delhi High Court Mediation & Conciliation

Centre to explore the possibility of a negotiated settlement by

recourse to mediation. A report dated 5th September, 2011 has been

received from Ms. Jasbir Kaur, the learned mediator of the Delhi High

Court Mediation & Conciliation Centre who was appointed as a

mediator upon the agreement of the parties. The learned mediator

has reported that meetings were held with the parties and their

respective counsels on 18th February, 2011; 3rd March, 2011; 11th

March, 2011; 30th March, 2011, 20th April, 2011; 2nd May, 2011, 7th July,

2011 and 8th August, 2011. It is pointed out that the matter was

thereafter fixed for 19th August, 2011 with the consent of both the

parties. However, one of the parties did not appear on this date.

Notice was sent to the said party for the next date i.e. on 2 nd

September, 2011. The notice was duly served on the 24th August,

2011. However, the said party did not appear in the mediation on the

2nd November, 2011. In this background, the mediator was of the view

that the said party had withdrawn from the mediation without giving

any intimation to the mediator or the mediation centre. As such, the

mediation was closed as a "Non-Settlement".

44. Learned counsel for the defendant has submitted that the

defendant was present before the Mediation Cell on 19th August, 2011

but the plaintiff did not appear. This position has not been assailed on

behalf of the plaintiff. The plaintiff had appeared in the mediation on

Review Petition No.512/2011 in CS (OS) No.314/2011 19 the 8th of August, 2011. It is apparent that in view of the order of

injunction dated 5th August, 2011, the plaintiff lost interest in the

mediation and opted not to appear.

45. This brings out the second material concealment by and on

behalf of the plaintiff from the court. The plaintiff as well as counsel,

an officer of the court, are duty bound to make an honest and

complete disclosure while appearing before the court. Though the

defendant was not represented on the 5th August, 2011 and ought to

have remained present, however, the same would not absolve the

plaintiff as well as counsel appearing in the case on its behalf to make

a fair and complete disclosure of the factual matrix. In my view, it

was essential for the plaintiff to have disclosed before this court on 5th

August, 2011 that the mediation was underway; the dates on which

the mediation efforts had been made and further that the matter was

fixed before the Delhi High Court Mediation & Conciliation Centre on

8th August, 2011.

46. The order of injunction would not have been passed on 5th

August, 2011 had the factum with regard to the directions keeping the

filing of the written statement in abeyance on 11th February, 2011 as

well as the pendency of the mediation on 8th August, 2011 been

brought to the notice of this court.

47. Yet another aspect, though relating to only procedure, yet of

importance, is the fact that IA No.2147/2011 which was disposed of on

Review Petition No.512/2011 in CS (OS) No.314/2011 20 5th August, 2011 had not been directed to be listed on 5th August,

2011. Yet this application was pressed and caused to be taken up for

hearing without directing a reply of the defendant.

48. In view of the above discussion, I have no hesitation in holding

that the order passed on 5th August, 2011 suffers from errors apparent

on the face of the record. The same has also resulted on account of

two facts not having been brought to the notice of the court, firstly,

the direction made on 11th February, 2011 and, secondly, the fact that

IA No.2147/2011 (on which the order was passed), had not been

directed to be listed for hearing on the said date.

49. The plaintiff had also concealed the fact that the mediation

efforts were underway and that the parties were appearing before the

mediator on 8th August, 2011. The order of injunction passed on the

5th of August, 2011 could not have been made for the reason that

there was no change in that factual position between the 11 th

February, 2011 and 5th August, 2011.

50. For all these reasons, it is directed as follows:-

(i) The order dated 5th August, 2011 shall stand recalled.

(ii) IA No.2147/2011 shall be listed for directions.

(iii) This petition is allowed in the above terms.

(GITA MITTAL) JUDGE JANUARY 30th , 2012 aa

Review Petition No.512/2011 in CS (OS) No.314/2011 21