Ram Kishan & Sons vs Mohd Haroon Japanwala & Ors.
2013 Latest Caselaw 1499 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Judgment:2nd April 2013

+      Review. Pet. 172/2013 and CM Nos. 5076-5078/2013
       in RC. Rev. 406/2011

       RAM KISHAN & SONS                  ..... Petitioner
               Through: Mr. Rupinder Singh Suri, Sr. Adv. and
                         Mr.Sanjeev Sindhwani, Adv. with
                         Mr.Anip Sachthey, Mr.Mohiti Paul,
                         Mr.Saakaar Sardana and Ms. Shagun
                         Matta, Adv.

                                     versus

       MOHD HAROON JAPANWALA & ORS. ..... Respondents
               Through: None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

CM No. 5078/2013 (exemption)

Exemption is allowed subject to just exceptions.

Review Pet. 172/2013 and CM Nos. 5076/2013 (for condonation of delay in filing the review petition) and 5077/2013(for condonation of delay in re-filing the review petition) in RC. Rev. 406/2011

1. This review petition is directed against the order dated 06.03.2012 whereby the order of the Additional Rent Controller (ARC) decreeing the eviction petition of the respondent/landlord had been upheld.

2. Record shows that an eviction petition had been filed by the landlord under Section 14(1)(e) of the Delhi Rent Control Act (DRCA) against the appellant. This was under the summary procedure provided under Section 25B of the DRCA. The application seeking leave to defend was not filed by the appellant within the stipulated period of time. No defence having been filed by the appellant, the eviction petition accordingly stood decreed in favour of the landlord. This was vide order of the ARC dated 12.07.2011.

3. CM No. 18722/2011 was filed under Article 227 of the Constitution of India assailing the order. Detailed arguments were heard and the judgment was reserved on 02.03.2012; it was pronounced on 06.03.2012. An appeal against this order was preferred before the Supreme Court which was dismissed on 04.04.2012. The following order was passed:

"After having heard learned senior counsel for the petitioner and after perusal of the record, we are of the opinion that no case for interference is made out against the impugned order passed by the High Court. The special leave petition is accordingly dismissed. However, looking to the facts and features of the case and keeping in mind that the petitioner has been carrying on business in the suit premises for a considerable time, it is granted one year's time from today to vacate and handover peaceful and vacant possession of the suit premises to the Respondent decree holder, subject to its filing usual undertaking in this Court within four weeks from today."

4. At the outset, a query has been put to the learned counsel for the petitioner as to how the review petition is maintainable when the special leave petition stands dismissed. Learned counsel for the petitioner seeks to rely upon the judgment of the Apex Court reported as Kanhayammed

& Ors vs. State of Kerala & Anr., (2000) 6 SCC 359; submission being that wherein an SLP is dismissed at the threshold, even if it is by a speaking order, the doctrine of merger would not apply and a review petition is maintainable.

4. On the aspect of delay of filing which is of 12 days and of re- filing which is of 279 days, the explanation tendered is contained in the body of the aforenoted applications. The delay of 12 days in filing the review petition has wrongly been noted; there is a delay of 22 days. In re-filing, there is a delay of 279 days. The explanations tendered and perfunctory; they do not appear to be credible and in no manner inspire any confidence.

5. The application seeking condonation of delay in filing the review petition (CM Appl. No. 5076/2013) states that the judgment was reserved on 02.03.2012 and it was only on 19.03.2012 that the petitioner came across this judgment when he was going through the website of the High Court whereupon certified copy of the judgment was applied for forthwith. The averments made in the application reflect the completely lackadaisical attitude of the litigant and his lawyer; it appears to be a perfunctory approach adopted by him; it was when he was checking the cause list and the site of the High Court that he noted that the judgment had been pronounced. The judgment was pronounced on 06.03.2012 and why he learnt about it only on 19.03.2012 has not been satisfactorily explained.

6. The explanation tendered in the second application (CM Appl. No. 5077/2013) for refilling is still more perfunctory. The details are contained in para 3 and read as under:-

"3. The Petitioner/Applicant states that the Applicant filed the Review Petition on 27.04.2012 and the same was returned by the Registry of this Hon'ble Court on 05.05.2012 raising certain objections/points for clarification. Thereafter, the said Review Petition was re-filed on 25.05.2012. The counsel for the Petitioner was under the bonafide impression that the said petition after curing the defects would be listed before the Hon'ble Court. That on 18.01.2013, the clerk of the counsel for the Petitioner informed that the said Review Petition is still lying under objections with the Registry of this Hon'ble Court.

The counsel for the Petitioner immediately directed the clerk to recollect the said Review Petition from the registry so that the objections can be cured and the Review Petition re-filed. It is stated that the re-filing of the matter after curing the defects is to be done within a period of 28 days from the date of Data Entry."

7. This is hardly any explanation; leave alone a justifiable explanation. The dates between noting the objections and the final re- filing even as per this explanation is of more than seven months. The litigant as also his advocate are clearly negligent.

8. The statute of limitation has been engrafted with a specific purpose; the intent of the legislature being not to allow negligent litigant to come knocking at the doors of the court as and when he wakes up from his slumber. This is one such example. The petitioner having not been to cross the hurdle of limitation, his review petition is liable to be dismissed on this ground alone.

9. That apart, the Apex Court while dismissing the SLP has passed a speaking order noting all the submissions of the petitioner as also specifying that the record has also been perused. The Apex Court in Kanhayammed (supra) in para 40 noted as under:

"The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger."

10. The reasons assigned by the Supreme Court on 04.04.2012 while dismissing the Special Leave Petition was after having heard the petitioner and after the perusal of the record. As a special concession of a one year's time was granted to the petitioner to vacate the suit premises on his furnishing an undertaking before the Apex Court. All this was agreed to the petitioner.

11. The petitioner is now precluded from re-agitating this issue before this Court after having accepted the order of the Supreme Court and that too on the eve of the date for vacating the property.

12. This petition is clearly an abuse of the judicial process of this Court and a wastage of its precious time; it is accordingly dismissed with costs quantified at Rs.25,000/-.

APRIL 02, 2013/rb                               INDERMEET KAUR, J