Smt Raj Dulari & Ors vs Smt. Surinder Kaur & Ors
2014 Latest Caselaw 2533 Del

*          HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) 1775/2009

                                           Decided on: 19th May, 2014

    SMT RAJ DULARI & ORS                              ..... Plaintiff

                     Through:     Mr.Biswajeet Das, Adv.

    SMT. SURINDER KAUR & ORS                          ..... Defendants

                     Through:     Mr.Sanjay Goswami, Adv.

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

    V.K. SHALI, J. (ORAL)

IA No.4641/2011 (by D-12 under Section 114 CPC)

1. This order shall dispose of an application filed by the

defendant No.12 seeking review of the order dated

07.05.2010 passed in IA Nos.13253/2009 & 12187/2009.

2. Briefly stated the facts as given in the order dated

07.05.2010 are that the suit relates to the property owned by

late Sh.Gurbaksh Singh. It was the case of the plaintiffs that

when Sh.Gurbaksh Singh died on 10.11.1961, he had left

behind a registered Will dated 26.04.1960. This Will was

got probated {Probate Case No.1/1962} and the suit property bearing No.D-16, Niazmuddin (East), New Delhi was got

mutated in favour of the grand sons who were the

beneficiaries under the Will. The children of the daughters

of the late Sh.Gurbaksh Singh were excluded. The property

was subsequent thereto sold to the applicant/defendant

No.12 namely BDR Builders and Developers Pvt. Ltd. This

court at the time of issuing summons had restrained the

defendants from parting with possession or creating third

party rights in respect of the suit property which order

continued to be in operation till the IA No.12187/2009 (u/O

39 R 1 & 2 CPC) and IA No.13253/2009 (u/O 39 R 4 CPC)

came to be decided by this court on 07.05.2010.

3. Before deciding these two applications, the defendant No.12

who was the builder and the purchaser of the suit property

had stated that he was a bona fide purchaser of the suit

property from the beneficiaries namely the grand sons of late

Sh.Gurbaksh Singh in terms of his Will which was got

probated from Alwar where the testator had died. He had

also stated that although the present suit was filed by the children of the daughters of late Sh.Gurbaksh Singh, they

had also simultaneously filed a petition for revocation of the

probate granted by the Alwar court and the defendant No.12

being a bona fide purchaser had given a statement that they

are prepared to furnish an undertaking to the effect that any

prospective purchaser to whom the property would be sold

will be duly informed about the pendency of the case so that

the purchaser is not taken by surprise about the pendency of

the present matter. This statement was made by Sh.Harish

Malhotra, the learned senior counsel appearing for the

defendant No.12, on instructions from the defendant No.12.

The learned senior counsel for the defendant No.12 also

stated that in order to dispel the fear of the plaintiffs, he was

ready to furnish an undertaking to the effect that any

prospective purchasers etc. would be informed about the

pendency of the present suit.

4. When the order dated 07.05.2010 was passed by this court

disposing of the IA No.12187/2009 (u/O 39 R 1 & 2 CPC)

and IA No.13253/2009 (u/O 39 R 4 CPC), the former application was disallowed and the order of stay was vacated

on the ground that the interest of the plaintiffs was

sufficiently protected by the undertaking filed by the

defendant No.12 that they would not create any third party

interest in respect of the construction which was built on the

suit property after obtaining the sanctioned plan. The IA

No.13253/2009 (u/O 39 R 4 CPC) was accordingly allowed

and the stay granted vide order dated 18.09.2010 stood

vacated. The para 16 of the order dated 07.05.2010 wherein

this was recorded reads as under:

"16. This court had already directed the defendant No.12 to file the affidavit which has been done and wherein the defendant No.12 has undertaken that he will not create any third party interest in respect of the construction which was built on the suit property without obtaining the permission of the court, therefore, it sufficiently protects the interest of the plaintiff. Accordingly, I feel that the ex parte ad interim order dated 18.09.2010 should be vacated and the defendant No.12 be permitted to raise the construction subject to the undertaking given by him which is accepted. So far as the present suit is concerned, the proceedings of the case are adjourned sine die without liberty to the plaintiffs to revive the same as and when they are able to obtain an order of revocation of grant of probate which will enable them to proceed ahead with the present suit. The application bearing no.IA No.12187/2009 under Order XXXIX Rules 1 & 2 CPC is dismissed and the application bearing IA No.13253/2009 under Order XXXIX Rule 4 CPC is allowed."

5. The present application has been filed by the defendant

No.12 seeking review of para 16 of the order dated

07.05.2010 on the ground that in the said para, what has

been recorded is that the defendant No.12 has given an

undertaking that they would seek the permission of the court

before creating a third party interest in respect of the suit

property. It is stated that there is an error apparent on the

face of the record because the defendant No.12 never gave

an undertaking to the said effect, but only gave an

undertaking to the effect that they would inform the

prospective purchaser about the pendency of the present suit

and not seek a permission of the court and hence the present

review application has been filed by them seeking necessary

correction in para 16 of the order dated 07.05.2010.

6. As against this, the learned counsel for the plaintiffs has

contested this application for review vehemently by

contending that there is no error apparent on the face of the

record. In this regard, he has stated that the plaintiffs had

raised an objection to the language of the undertaking

wherein it was observed by the plaintiffs that the defendant

No.12 was surreptitiously trying to sell the property and

defeat the rights of the plaintiffs using objectionable

language in the undertaking wherein only intimation was

sought to be given by the defendant No.12. Despite this, the

court consciously in order to balance the equities passed an

order directing the defendant No.12 to obtain the permission

from the court before selling the suit property. It is,

therefore, too late in the day now to change this condition

imposed vide order dated 07.05.2010 of seeking permission

of the court before creating any third party interest in respect

of the construction which was built on the suit property to

the condition that the defendant No.12 should only intimate

the prospective purchaser about the pendency of the suit and

hence the present application deserves to be dismissed.

7. The plaintiffs have also stated that once a final view has

been expressed, the same cannot be reviewed by referring to

the undertaking.

8. I have carefully considered the submissions made by the

respective sides and gone through the order dated

25.01.2010 as well as the order dated 07.05.2010. Prima

facie, I find force in the contention of the learned counsel of

the learned counsel for the defendant No.12 that there is an

error apparent on the face of the record. This error is that the

court was conscious of the fact in not granting the stay or

rather vacating the stay granted in favour of the plaintiffs

and against the defendants on the ground that the interest of

the plaintiffs was sufficiently protected by the undertaking

given by the defendant No.12. Therefore, the court

purposely made reference to the undertaking as the

document which was singularly protecting the interest of the

plaintiffs and in the said document what was stated by the

defendant No.12 was not seeking permission from the court

before transacting the property, but only intimating the prospective purchaser about the pendency of the suit in

respect of the suit property so that in future the said

prospective purchaser is not in a position to take the plea that

he was taken by surprise or he has to consider himself bound

by the orders of the court in the instant suit. This, in my

considered opinion, is an error apparent on the face of the

record and, therefore, needs to be corrected. I do not expect

the minute hair splitting being done by the learned counsel

for the plaintiffs that there is no error apparent on the face of

the record and the order dated 07.05.2010 cannot be

reviewed. I, therefore, feel that para 16 of the order dated

07.05.2010 must read as follows as there was an error

apparent on the face of the record in mentioning that the

defendant No.12 would seek permission of the court before

creating any third party interest in respect of the construction

which was built on the suit property instead of recording that

the said defendant would intimate the prospective purchaser

about the pendency of the present suit.

"16. This court had already directed the defendant No.12 to file the affidavit which has been done and wherein the defendant No.12 has undertaken that he is ready to furnish an undertaking to the effect that any prospective interest which maybe created during the pendency of the case, will be after due intimation about the pendency of the case. Therefore, it sufficiently protects the interest of the plaintiff. Accordingly, I feel that the ex parte ad interim order dated 18.09.2010 should be vacated and the defendant No.12 be permitted to raise the construction subject to the undertaking given by him which is accepted. So far as the present suit is concerned, the proceedings of the case are adjourned sine die without liberty to the plaintiffs to revive the same as and when they are able to obtain an order of revocation of grant of probate which will enable them to proceed ahead with the present suit. The application bearing no.IA No.12187/2009 under Order XXXIX Rules 1 & 2 CPC is dismissed and the application bearing IA No.13253/2009 under Order XXXIX Rule 4 CPC is allowed."

9. For the reasons stated above, the application of the defendant

No.12 is allowed.

CS(OS) No.1775/2009

1. List before the court for framing of issues on 25.08.2014.

V.K. SHALI, J MAY 19, 2014/dm