Smt. Kamlesh vs Rajinder Kumar Aggarwal
2015 Latest Caselaw 4487 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Review Petition No. 309/2015 in RSA No. 124/2013

%                                                           29th June, 2015

SMT. KAMLESH                                                ..... Appellant
                               Through:   Mr. P.K.Bajaj and Mr. S.P.S.Tyagi,
                                          Advocates.

                               versus

RAJINDER KUMAR AGGARWAL                                     ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Review Petition No.309/2015 (for review of the order dated 24.2.2014) & CM No. 11055/2015 (condonation of delay of 40 days) & CM No. 11057/2015(stay)

1. This review petition filed under Section 114 and Order XLVII

Rule 1 of the Code of Civil Procedure, 1908 (CPC), alongwith the

accompanying applications for condonation of delay allegedly only of 40

days in filing the review petition, with the accompanying application for stay

has been filed in the Regular Second Appeal which was disposed of on

24.2.2014 in terms of a consent order granting the appellant/review

petitioner/tenant time to vacate the suit premises by 30.6.2015 i.e tomorrow.

The appellant/review petitioner/tenant had filed the Regular Second Appeal

against the concurrent judgments of the courts below, first being of the Civil

Judge in the original suit and the second of the First Appellate Court in the

first appeal under Section 96 CPC. The concurrent judgments decreed the

suit for possession and mesne profits of the respondent/plaintiff/landlord

against the appellant/defendant/tenant. The judgment of the Civil Judge is

dated 5.5.2011 and the judgment of the First Appellate Court is dated

24.5.2013.

2. In this Regular Second Appeal, notice was issued on 9.7.2013

and after various dates the second appeal thereafter came up for hearing for

admission on 24.2.2014. Counsel for the appellant argued the matter and

after arguments the appeal was not pressed and the appellant as prayed was

granted time to vacate the suit premises till tomorrow i.e 30.6.2015. The

order dated 24.2.2014 reads as under:-

"1. After arguments, the appeal and application are disposed of with the consent order that appellant will vacate the suit premises being the third floor of the property bearing No.562/37, Omkar Nagar, Tri Nagar, Delhi-110035 on or before 30.6.2015. The appellant till the end of February, 2014 will pay the mesne profits as calculated by the Courts below and from 1.3.2014 till 30.6.2015 or an earlier date of vacation will pay a sum of Rs.10,000/- per month as charges of use and occupation. Appellant will also clear all charges towards electricity and water with respect to the suit premises.

2. Let the appellant file an undertaking in this Court in terms of the present order within two weeks and on filing and complying with the terms of the undertaking appellant will not be evicted from the suit premises till 30.6.2015.

3. Parties are left to bear their own costs."

3. Pursuant to the order dated 24.2.2014, there exists on the record

of this Court an undertaking of the appellant whereby the appellant

undertook to vacate the suit premises by 30.6.2015 and also to pay the

mesne profits payable in terms of the order dated 24.2.2014.

4. Now this review petition is filed claiming that there is a delay

allegedly only of 40 days because the appellant claims that the earlier

Advocate in whose presence the order was passed on 24.2.2014 only

informed the appellant in May, 2015 that the appellant has to vacate the suit

premises by 30.6.2015, and though the order was passed on 24.2.2014,

limitation for filing review is alleged to arise only from May, 2015. By the

review petition, it is argued that the signatures of the appellant on the

undertaking dated 12.3.2014 are forged and fabricated and therefore there is

no undertaking and hence the Regular Second Appeal be re-heard on merits.

5. Some of the litigants in this country intend to abuse the process

of the law. Not only they abuse the process of the law, but they put the

credibility of the judicial process to question inasmuch as, judicial process

has two parties, the other being the party in whose favour the suit is denied.

It is high time that a very strong and stern message should be sent to

dishonest litigants such as the appellant. I am therefore dismissing the

review petition with costs as per the observations made hereinafter.

6. Firstly, I do not find any valid reason for the appellant to

contend that her signatures on the undertaking dated 12.3.2014 are forged

and fabricated by the earlier Advocate, inasmuch as, the Advocate through

whom the undertaking is filed is the same Advocate who had originally filed

the Regular Second Appeal namely Sh. R.P.Sharma, Advocate. Three

Advocates have filed the appeal on behalf of the appellant namely Smt.

Anjali Nehra, Sh. K.C.Mittal and Sh. R.P.Sharma, Advocates. The second

appeal is signed by Sh. R.P.Sharma and the same Sh. R.P.Sharma has also

signed the index alongwith which the undertaking was filed in this Court on

12.3.2014, and which was the undertaking in terms of the order dated

24.2.2014 to vacate the suit premises by 30.6.2015. Appellant thus is merely

taking up a convenient stand of her signatures being forged and fabricated

and this becomes clear from the fact that the appellant is waking up just in

and around the period when the time granted to her to vacate the suit

premises is coming to an end on 30.6.2015.

7. I may note that the appellant/review petitioner/tenant has

deliberately not given any details as regards why she was silent from

February, 2014 till the filing of this review petition on 18.6.2015 and the

details of allegedly of the appellant/review petitioner/tenant being told by

the Advocate only in May, 2015. Obviously, the appellant/review petitioner,

who is the tenant and against whom concurrent decrees had been passed, and

whose case was to be decided by a judgment on merits after arguments on

24.2.2014, however instead of a judgment, the appellant/review

petitioner/tenant finding no strength in her second appeal which was

required to show a substantial question of law, chose through counsel to take

time to vacate the suit premises.

8. Even for the sake of arguments if we take that the signatures of

the appellant/review petitioner/tenant are not appearing on the undertaking

dated 12.3.2014, that cannot disturb the finality of the order dated 24.2.2014

because admittedly the counsel who appeared before this Court on 24.2.2014

and argued the matter is /was admittedly the counsel of the appellant/review

petitioner/tenant in the Regular Second Appeal and who was appearing since

the first date ie 9.7.2013 alongwith the other Advocate Sh. R.P.Sharma. At

best non-filing of the undertaking would only mean that the appellant/review

petitioner/tenant could have been evicted even prior to 30.6.2015 but

assuming that undertaking is not filed because allegedly it does not contain

the signatures of the appellant/review petitioner/tenant cannot mean that the

finality of the order dated 24.2.2014 will be taken away, because as already

stated above, the appellant was duly represented by her regular advocate

who in fact argued the second appeal on 24.2.2014 and in the interest of

justice the appellant, after arguments, took time of more than one year and

four months to vacate the suit premises.

9. Reliance placed by the counsel for the appellant/review

petitioner/tenant upon the judgment of a learned Single Judge of this Court

dated 9.2.2007 in C.C.P. No.69/2004 is not understood by this Court

because in the said case the court had issued suo moto notice to the

Advocate where in the facts of that case it was found that the Advocate had

not correctly filed the legal proceedings on behalf of the plaintiff. I fail to

understand as to how in any manner this judgment dated 9.2.2007 in C.C.P.

No. 69/2004 etc will apply to the facts of the present case.

10. In view of the above, there is no merit in the review petition. In

fact, there is no ground even for condonation of delay in filing of the review

petition which is a delay not only of 40 days, but of over one year, and for

which no explanation is given. Even on merits, appellant has no case for

seeking rearguing of the second appeal which was argued on 24.2.2014 and

instead of inviting an adverse judgment only time was taken to vacate the

suit premises.

11. In the facts of the present case, though I was inclined to impose

costs of Rs.1,00,000/- for dismissing the review petition, however,

considering the condition of the appellant/review petitioner/tenant, this

review petition is dismissed with costs of Rs.25,000/- and which costs shall

be paid to the Delhi High Court Legal Aid Services Committee within six

weeks from today.

12. List before the Registrar on 19.8.2015 to ensure that the costs

are deposited, and if costs are not deposited, Registrar will be entitled to

recover the costs as arrears of land revenue from the appellant and thereafter

deposit the same with the Delhi High Court Legal Aid Services Committee.

13. Dismissed.

JUNE 29, 2015                                 VALMIKI J. MEHTA, J.
ib