Shri Ranjit Kumar Sandhir vs Shri Bhag Singh
2012 Latest Caselaw 1990 Del

$~23 & 24
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 22.03.2012

+     C.R.P. Nos. 561/2000 and 902/2003 & CM Nos12538-39/2010,
      13434/2010 & 811/2012

SHRI RANJIT KUMAR SANDHIR                      ..... Petitioner
                     Through Mr. D.K. Rustagi, Adv.
              versus

SHRI BHAG SINGH                                         ..... Respondent
                              Through    Mr. C.B. Singh, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 There are two orders which are impugned before this Court. The

first order is dated 17.12.1999 whereby the application filed by the

petitioner (Ranjit Kumar Sandhir) seeking a restoration of his appeal

which had been dismissed vide an order dated 04.10.1999 had been

declined. The second order impugned is the order dated 17.05.2003 vide

which the order on the review petition dated 25.07.1999 had been set

aside. The petitioner is aggrieved by both the aforenoted orders.

2 Record shows that the petitioner and Bhag Singh (respondent) had

entered into an agreement to sell dated 17.11.1972 by virtue of which

the respondent had agreed to sell his property i.e. property bearing No.

229 (Old), 371 (new) Sant Nagar, New Delhi for a consideration of

`17,000/- of which an initial amount of `10,000/- was paid and the

balance of `7,000/- was yet payable; it is not in dispute that pursuant to

this agreement dated 17.11.1972, the petitioner has been put in

possession of the suit premises and he is in possession of the premises as

on date.

3 Record further shows that a suit for declaration had been filed by

the petitioner in the year 1976 seeking the protective umbrella of

Section 53-A of the Transfer of Property Act which suit stood dismissed

on 14.10.1980. A regular second appeal filed against the said judgment

and decree was disposed of on 20.04.1982 with liberty granted to the

petitioner to file a fresh suit on the same cause of action i.e. suit for

specific performance.

4 Record further shows that instead of filing a suit for specific

performance, a suit for recovery of `39,000/- had been filed by the

present petitioner; the impugned orders have arisen out of the aforenoted

suit. This claim was based on the clause contained in the agreement

dated 17.11.1972 that in case the agreement is not honoured, the

petitioner would be entitled to damages @ `1,000/- per month from the

respondent.

5 In the written statement filed to the aforenoted suit, the plea of

resjudicata and bar of Section Order 2 Rule 2 of the Code of Civil

Procedure (hereinafter referred to as the 'Code') was set up by the

respondent; he had also filed a counter claim seeking possession of the

suit premises.

6 The judgment and decree dated 22.05.1999 had dismissed this

suit; preliminary issue framed on the point of resjudicata and Order 2

Rule 2 of the Code had been decided in favour of the respondent; suit

accordingly stood dismissed.

7 The appeal against the said judgment and decree dated 22.05.1999

was never heard on merits; it was dismissed on 04.10.1999 on the

premise that the Court fee which was required to be paid by the

appellant had not been paid; the application seeking restoration of this

appeal had been dismissed by the first impugned order dated

17.12.1999.

8 The explanation of the counsel for the petitioner on this count is

that his review petition seeking a review of the judgment and decree

dated 22.05.1999 had been allowed on 25.07.1999 and since this review

had been allowed, he did not pursue the appeal which was accordingly

dismissed on 04.10.1999 and reaffirmed on 17.12.1999.

9 The review petition against the judgment and decree dated

22.05.1999 had been allowed on 25.07.1999 and the dismissal of the suit

filed by the petitioner had been set aside; counter claim which had been

decreed in favour of the respondent had also been set aside.

10 Record further shows that the revision petition filed against the

order dated 25.07.1999 was allowed on 17.05.2003; this is the second

impugned order.

11 The gamut of this record shows that the petitioner has for one

reason or the other not been given a right of hearing before the first

appellate Court against the judgment and decree dated 22.05.1999. The

contention of the respondent is that if the matter is remanded back, he

would suffer prejudice as the matter is very old and for one reason or the

other, it is a delaying tactic. This submission of the respondent may not

be without complete force yet this Court cannot lose sight of the fact

that a valuable right which is a right of a first appeal has been lost to the

petitioner and the explanation tendered by him is also not implausible;

his contention being that he was not pursuing his appeal only for the

reason that his review petition had been allowed on 25.07.1999 and he

had already got the relief which he was seeking by way of an appeal. It

is a separate matter that the revision petition filed against the review

order dated 25.07.1999 was allowed by the second impugned order

which is dated 17.05.2003.

12 In this background, it is a fit case where the matter should be

remanded back for hearing by the first appellate Court against the

judgment and decree dated 22.05.1999 as the petitioner who is

admittedly in possession of the suit premises since the year 1972 would

lose a valuable right in case he is not allowed to plead his case on merit.

Matter is accordingly remanded back to the first appellate Court to hear

the appeal against the judgment and decree dated 22.05.1999.

13 Put up for appearance before the first appellate Court on

28.03.2012.

14 Both the petitions are disposed of in the above terms.

INDERMEET KAUR, J MARCH 22, 2012/A