Shyam Sunder & Anr. vs Meena Taneja
2013 Latest Caselaw 2483 Del

$~26
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     RSA 161/2012
      SHYAM SUNDER & ANR.                       ..... Appellants
              Through: Mr. K.G. Seth, Advocate.

                         versus

      MEENA TANEJA                                      ..... Respondent
              Through:            Ms. Richa Kapoor, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE V.K. SHALI

                         ORDER

%                        24.05.2013

Review Application No.286/2013

1. This is an application filed by the appellants under Order 47 Rule 1

read with Sections 114 & 151 CPC seeking review of order dated 6.5.2013.

2. I have heard the learned counsel for the appellants and have gone

through the record as well as the submissions made in the application.

3. Before dealing with the review application, it may be pertinent here to

mention that this is a regular second appeal filed by the appellants under

Section 100 CPC against the judgment dated 1.9.2012 passed by the learned

Additional District Judge dismissing the appeal being R.C.A. No.30/2011 of

the appellants titled Shyam Sunder & Anr. Vs. Meena Taneja.

4. Briefly stated the facts leading to the filing of the regular second

appeal are that the plaintiff/respondent herein, Meena Taneja had filed a

Civil Suit No.35/10/02 for possession, mesne profits/damages and injunction

against the defendants/appellants herein in respect of the ground floor of

property No.H-1/28, Lajpat Nagar, New Delhi-110024. The case which was

setup by the plaintiff/respondent herein was that the aforesaid property

actually belonged to one Bhagat Ram and it was purchased by mother-in-

law of the plaintiff, Vidyawanti, from him by virtue of registered sale deed

on 3.7.1967. After getting the property mutated in the name of Vidyawanti,

she became owner of the suit property. Vidyawanti is stated to have died on

27.6.2000 leaving behind a registered Will dated 1.5.2000 bequeathing the

entire property in favour of the plaintiff/respondent. The other legal heirs of

Vidyawanti, were her husband (Kishori Lal), sons (Suraj Prakash and

Shyam Sunder), daughter-in-law (Radha Taneja) and daughter (Shanti

Grover). Kishori Lal (husband) had not disputed the Will and similarly,

Suraj Prakash, husband of respondent/plaintiff as well as brother-in-law of

the respondent/plaintiff, namely, Shyam Sunder, who is the appellant No.1

in the instant case exhibited the Will dated 1.5.2000, purported to have been

executed by Vidyawanti, in favour of the respondent/plaintiff. They also exhibited a relinquishment deed in favour of the plaintiff/respondent.

Similar was the case with regard to Shanti Grover, daughter of Vidyawanti.

As a consequence of this relinquishment deed and non-challenge of the Will,

the lessor had perfected the title in respect of the suit property in favour of

the plaintiff/respondent and she became the owner of the property. The

plaintiff/respondent, after becoming the owner of the suit property had

entered into a collaboration agreement with one builder, Sanjay Sayal, for

the purpose of development and reconstruction of the entire property. It has

been disputed that basement, ground floor, first floor, second floor and third

floor were constructed on the property which were shared between the

owner, that is, plaintiff/respondent and the builder. The second and the third

floor along with terrace rights had fallen to the share of the builder or his

nominee. So far as the basement, ground and first floor are concerned, they

had fallen to the share of the plaintiff/respondent. The plaintiff/respondent

is stated to have perfected the title of the builder, Sanjay Sayal, so far as the

second and the third floors are concerned by executing the sale deed in

which the present appellant Shyam Sunder was a conforming party. In

addition to this, it has been stated that he is a conforming party in the

collaboration agreement also. It is also stated that after the reconstruction of the property, Shyam Sunder was living in the ground floor as a licensee

along with his wife and father while as the plaintiff/respondent along with

her husband Suraj Prakash was living on the first floor. It is stated that the

licence of the defendant/appellant, Shyam Sunder, to occupy the ground

floor of the suit property was cancelled and he was requested to vacate the

premises and since he did not oblige, consequently, the plaintiff/respondent

was constrained to file the suit for possession, damages and injunction

against the defendants/appellants Shyam Sunder and his wife Radha Taneja.

This suit was contested by the defendants/appellants and they filed their

written statement. The stand taken by the defendants/appellants was that

they were assured to be permitted to live on the ground floor of the suit

property despite the fact that they had executed a relinquishment deed and

exhibited the Will. The learned trial court, after framing of the issues,

permitted the parties to adduce their evidence and decided the suit for

possession in favour of the plaintiff/respondent on 2.8.2011; however, no

damages were accredited to the plaintiff/respondent.

5. The appellants feeling aggrieved, preferred the appeal being R.C.A.

No.30/2011. On 1.9.2012, the appellate court not only confirmed the

judgment and the decree for possession but also directed the appellants to pay damages @ `7,500/- per month to the respondent for the period, i.e.,

during the pendency of the suit and till the possession of the suit property

was handed over by the appellants to the respondent.

6. Still feeling dissatisfied, the appellants have filed the present regular

second appeal. The appeal had come up for the first time on 26.9.2012 and

thereafter, the matter was taken up on number of dates for the purpose of

formulation of substantial question of law so that the matter could be heard.

As the learned counsel for the appellants was not able to formulate any

substantial question of law at various stages when the matter was heard

including on 6.5.2013, on which date the learned counsel for the respondent

had very fairly acceded to the request of the court that the appellant No.1,

who happen to be the real brother-in-law of the respondent and the brother

of the husband of the respondent was permitted to either live in the said

premises on the ground floor or alternatively, the respondent had agreed to

make an arrangement for him and his wife to stay in one room tenement

during their lifetime without charging them any rent. Both the parties were

directed to file their respective undertakings in this regard and the matter

was accordingly directed to be listed before the Registrar for today for the

purpose of recording of their undertakings. It is at this stage the appellants have filed the present review application.

7. I have gone through the averments made in the review application. It

has been stated in the prayer clause of the review application that the

appellants be declared the owner of the ground floor of the suit property. It

has been further stated that the respondent had admitted before them that she

is able to play a fraud on the appellants in obtaining their signatures of

documents purported to be the corroboration agreement and the

relinquishment deed.

8. In addition to this, averments have also been made that the threats

were advanced to the appellants as well as to their counsel. None of the

averments or the allegations made in the application for review are germane

for deciding the question of review of the order dated 6.5.2013. The scope

of review is very well laid in Order 47 Rule 1 CPC which is permissible

only when there is an error apparent on the face of record in the order or

when new evidence which was not within the power and control of a party is

sought to be brought before the court.

9. Admittedly in the instant case, the review application does not show

that there is any error apparent on the face of the record in the order dated

6.5.2013 nor does the appellants say that they are in possession of some evidence which was not in their control or knowledge earlier which could

have changed the outcome of the order which is purported to have been

passed by this court on 6.5.2013.

10. Accordingly, I feel that the review application is totally misconceived

and has been filed only to perpetuate the delay in the disposal of the matter.

As no substantial question of law has been shown to be arising from the

present appeal and the offer which was made by the respondent is not

acceptable to the appellants, I have no other option but to dismiss not only

the appeal, as it is without any merits, but also the review petition. Ordered

accordingly.

V.K. SHALI, J.

MAY 24, 2013 'AA'