Delhi High Court
G.S. Gosal vs Cement Corporation Of India Ltd. on 19 December, 2013
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: December 19, 2013
+ CM(M) 541/2013 & C.M. No.8059/2013
G.S. GOSAL ..... Petitioner
Through Mr. Rajeev Garg, Ms. Santa Raman
and Ms. Kavita Rawat, Advocates.
versus
CEMENT CORPORATION OF INDIA LTD. ..... Respondent
Through Mr. Mukesh Kumar, Advocate for
CCI/R1.
Mr. K. Venkataraman, Advocate for
Applicant in ( IA No. 8059/2013)
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By way of the present petition under Article 227 of the Constitution of
India, the petitioner has assailed order date 10th October, 2012 passed by the
learned Addl. District Judge whereby the application of the petitioner under
Section 151, 152 and 153 of CPC was dismissed.
2. The brief facts which led to the filing of present petition are as
under :-
i) The petitioner is the absolute owner of Flat No. 204, Second Floor,
Building No. 87, CCI House, Nehru Place, New Delhi - 110019,
admeasuring 530 sq. ft.
ii) The suit property was initially let out by M/S Pal Associates Pvt. Ltd
who constructed and developed the entire building, to the respondent
for a period of three years by way of unregistered lease deed dated
22nd September, 1979. During the period of lease deed, the suit
premise was purchased by the petitioner on January 18, 1980 by
executing a purchase agreement. Thereafter, a rent agreement dated 1 st
March, 1980 was executed between the parties by which the
respondent became the tenant of the petitioner. Subsequently, the rent
agreement was extended upto 1994 and thereafter, the rent agreement
was not renewed and the respondent continued to be in possession of
the suit premises.
iii) The petitioner filed the suit for possession, recovery of arrears of rent
and maintenance charges, mesne profits/damages and permanent
injunction in respect of suit property. The suit was decreed under
Order XII Rule 6 of CPC vide order dated 6th August, 2009 and the
respondent was directed to hand over the peaceful and vacant
possession of the suit property. An appeal was preferred before this
court by the respondent which was dismissed. Upon dismissal of the
appeal, the respondent handed over the suit premises to the petitioner
on 24th January, 2011.
iv) An application was moved by the petitioner under Section 151, 152
and 153 of CPC to amend and correct the error occurred in the site
plan annexed with the decree and relied upon by the petitioner during
the proceedings of the suit was dismissed by the Learned ADJ vide
order dated 10th October, 2012.
v) The petitioner contended in the application that he took the possession
and placed lock on the door of the premises. It was contended that on
his visit to the suit premises after 2-3 months, the lock had been
replaced and the notice had been affixed at the door of the premises to
the effect that Indu Parwanda was the decree holder of the suit
premises. It was contended that on enquiry flat was actually No.201
and not No.204 as per sanctioned plan of DDA. It was further
contended that the actual owner of the flat No. 201 was Indu
Parwanda who had also filed suit against the respondent seeking
possession of this flat, had executed decree and accordingly, took
possession of the flat. It was contended that he took possession of the
suit premises in good faith and under the impression that same was
flat no.204 and the respondent was fully aware that they were handing
over the wrong flat.
vi) Notice of the application was served on the respondent and he filed
reply to the said application wherein it was vehemently objected that
the petitioner after taking all remedies had taken possession of the
premises and all of a sudden moved the application with malafide
intention to grab other property. It was contended that it was well
within the knowledge of the petitioner that he had filed a wrong site
plan. It was further objected that after execution of the decree, the
court became functus officio and could not entertain the application. It
was further objected that in garb of the application, the petitioner was
trying to get review of the order dated 6th August, 2009 and further
submitted that even review of order was time barred.
3. The Trial Court observed in the impugned order that the application
was not in a position to restore the possession of flat which had already been
taken into possession by the petitioner. It observed that the petitioner after
taking possession of the flat was seeking possession of another flat which
was not permissible.
4. Aggrieved with the order, the present petition.
5. It appears from the record that the Trial Court dismissed the
application of petitioner seeking correction of the site plan without
considering the fact that the flat No. 204 was correctly mentioned in the
plaint and there was no wrong mentioning of the flat number. The
respondent did not raise any objection regarding the site plan at the time of
filing of the written statement in the suit and therefore, the respondent is
estopped from raising any objection at this stage.
6. In reaching to conclusion by the learned Trial Court that if said
application under Section 151, 152 and 153 of CPC had been allowed it
would have been amounted to a review of the judgment passed by the Trial
Court. The said conclusion of trial court was not correct, as the application
was moved under Section 151, 152 and 153 of CPC and not under Section
114of CPC. It was merely the case of the petitioner before the learned Trial
Court for correction of an error and the Trial Court could have exercised
jurisdiction as prescribed under Section 152 of CPC who failed to
understand that the litigant should not suffer due to the inadvertent accident
slip/defect, as the parties had already been litigating for around 7 years and
the petitioner should not be deprived of actual fruit after such a long
litigation and in order to provide complete justice as per actual position and
facts of the matter.
7. The Trial Court was not correct while reaching a conclusion that the
petitioner after taking possession of the flat was seeking possession of
another flat. The said findings are not correct. As a matter of fact the
present case is a case of mistaken identity and inadvertent accident slip only.
8. The prayer in the present petition is allowed. Thus, the impugned
order dated 10th October, 2012 passed in CS No.145/2012 is set aside.
Directions are issued to the learned Trial Court to amend the decree in view
of application made by the petitioner under Section 151, 152 and 153 CPC.
9. The petition is disposed of. Pending application also stands disposed
of.
10. No costs.
(MANMOHAN SINGH)
JUDGE
DECEMBER 19, 2013
