Shri Brahm Singh & Ors. vs Smt. Nisha Rani
2015 Latest Caselaw 4424 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             RFA No. 47/2001
%                                                    29th May, 2015

SHRI BRAHM SINGH & ORS.                                    .....Appellants

                              Through:   Mr. P.P.Malhotra, Sr. Adv. with Mr.
                                         Mohit Paul and Mr. Yasir Rauf, Advs.


                              versus

SMT. NISHA RANI                                            ..... Respondent

Through: Mr. Sanjeev Mahajan, Adv.

Daughter of respondent in person.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Review Petition No. 290/2015, CM No. 10335/15, 10336/15(delay of 678 days in filing of the R.P) and CM No. 10337/15 (delay of 491 days in refiling)

1. This review petition is filed under Order XLVII Rule 1 of the

Code of Civil Procedure, 1908 (CPC) seeking review of the order dated

29.3.2012 by which this regular first appeal was disposed of by a consent

order. This review petition is in fact a third endeavour to seek re-arguments

of the appeal on merits. On the first occasion the first appeal was in the

absence of the parties heard on merits and dismissed in terms of the

judgment dated 1.2.2011. The present review petitioners/appellants then

filed a review petition seeking hearing and which review petition was

allowed by the impugned order dated 29.3.2012 and the appellants were then

heard once again on merits in the appeal and which is thus the second time

when the appeal was heard on merits. The order dated 29.3.2012 shows that

the appellants were represented before this Court not only by their counsel,

but also by a senior counsel. The order dated 29.3.2012 also specifically

records that arguments in the appeal were concluded and the judgment was

to be dictated, and at which stage an agreement was recorded that the

appellants will receive a sum of Rs.1,00,000/- with respect to their rights in

the suit property and thereafter will not claim any right whatsoever in the

suit property. The respondent had also initiated a criminal case against the

review petitioners/appellants and the respondent was to withdraw the

criminal case which was filed against the petitioners in terms of the consent

order recorded on 29.3.2012.

2. Indubitably the order dated 29.3.2012 which is sought to be

reviewed was a consent order. Once the order is a consent order, such a

consent order cannot be appealed from in view of the spirit of the provision

of Section 96(3) CPC, unless the appellants claim that their consent was

taken by force, fraud or coercion and which is not the case. The review

petitioners/appellants then challenged this consent order before the Supreme

Court and this challenge before the Supreme Court was withdrawn on

6.1.2014 and the Supreme Court in this Civil Appeal No. 20283/2013 passed

the following order:-

"Delay condoned.

Dismissed.

However, if the petitioners so desire, they can make an appropriate Review Petition before the High Court. If and when such a Review Petition is filed, the High Court will consider the same on its own merits.

We, however, clarify that we have not expressed any opinion on the request made by Chitale, learned senior counsel for the petitioners. In the event of the petitioners fails before the High Court, they are at liberty to question the main order as well as the order passed in the Review Petition before this Court."

3. It is pursuant to the aforesaid order of the Supreme Court dated

6.1.2014 that this review petition is filed and that too alongwith an

application for condonation of huge delay of refiling of 491 days and which

is alleged in the application for condonation of delay to be a "short delay".

4. There are some cases which are abuse of the process of the law,

the present case is one such case. As already stated above, the present

attempt by the review petitioners/appellants is the third attempt for hearing

of the appeal on merits which was once dismissed by means of a judgment

dated 1.2.2011, thereafter the appellants sought again hearing on merits

because they were not present when the judgment was passed on 1.2.2011

dismissing the first appeal and which review petition was allowed and the

appellants/review petitioners were then heard for the appeal on merits.

Appellants argued the matter through their senior counsel and at the stage of

dictation of judgment after completion of arguments, the appellants did not

press the appeal but only as per the consent recorded of the counsel for the

parties were to get an amount of Rs.1,00,000/- in full and final satisfaction

of their claims with respect to the suit property. Respondent as per the

consent order was to withdraw the criminal case filed against the review

petitioners/appellants. Therefore, repeated endeavors to keep on re-arguing

the appeal on merits in an abuse of the process of the law.

5. The next abuse of the process of the law is gross concealment

of facts by the review petitioners/appellants that in fact the order dated

29.3.2012 was acted upon by both the parties including the review

petitioners/appellants and the review petitioners/appellants received benefits

of the consent order dated 29.3.2012 passed in the RFA No.47/2001,

inasmuch as, respondent withdrew the criminal case pending before the

concerned Chief Metropolitan Magistrate (CMM) wherein statements of not

only the respondent but also the appellants herein were recorded. The

concerned FIR number is 46/12 and the order of the CMM alongwith the

statements of the parties were recorded on 31.8.2013. This order of CMM

and the statements of the parties including appellants herein, both dated

31.8.2013 read as under:-

       "      Order dated 31.8.2013:-
              FIR No.46/12
              PS: Karawal Nagar

              31.08.2013:
              Present:      Ld. APP for the State.
                            Accused Sonu Kumar produced from J/C.

Remaining three accused are on bail with counsel Ms. Protima Parihar and Ms. Ritu Singh.

Ms. Reetu, complainant in person.

An application filed on behalf of complainant Reetu Jain which is accompanied by the order dated 29.3.12 of Hon'ble High Court of Delhi. She state that costs of Rs.1.00 lac as ordered by the Hon'ble High Court has already been paid to Brahm Singh. It is stated that the matter has been amicably compounded with all accused and terms and conditions are stipulated in the order. As such, she requests for withdrawal of the present matter. Statements of complainant as well as all accused persons recorded separately. All accused are duly identified by their counsel.

This court has ascertained the voluntariness of statements and is satisfied so. The offences with which all accused are charged are compoundable in nature in view of provisions of Section 320 Cr. P.C.

Considering the nature of case, facts and circumstances and the fact that parties have put to rest the controversy in question. I hereby accord my permission to compound the offences. The offences stand compounded. The compounding in present circumstances shall result in acquittal of accused.

Let the case file be put up before Lok Adalat on 12.09.2013.

Statements:-

FIR No. 46/12 PS:Karawal Nagar

31.08.2013:

Statement of complainant Ms. Reetu Jain, W/o Mr. Shobhit Jain, Aged 36 years, R/o 5/9C, Roop Nagar, Delhi-07. On S.A.:

I am complainant in the present case. I have amicably settled the matter with all four accused persons in the spirit of the order dated 29.3.2012 passed by Hon'ble High Court of Delhi. They have apologized for the acts committed by them. I have compounded the matter and pursuant to the settlement, I do not want to pursue with the case further against all accused persons. I have also moved an application in this regard. The same is Ex.C1 which bears my signatures at point A. I may be permitted to withdraw the same.

Statement of accused no.1 Ravinder Singh S/o Mangal Singh. Without Oath:

I am accused in this case. I have read over the statement given by the complainant. I undertake not to repeat any such incident in future. I have feelings of repentance over my act. I may kindly be permitted to compound the matter with complainant.

Statement of accused no.2 Brahm Singh S/o Ghasi Ram. Without Oath:

I am accused in this case. I have read over the statement given by the complainant. I undertake not to repeat any such incident in future. I have feelings of repentance over my act. I may kindly be permitted to compound the matter with complainant.

Statement of accused no.3 Mahender Singh S/o Brahm Singh. Without Oath:

I am accused in this case. I have read over the statement given by the complainant. I undertake not to repeat any such incident in future. I have feelings of repentance over my act. I may kindly be permitted to compound the matter with complainant.

Statement of accused no.4 Sonu Kumar Singh S/o Mangal Singh .

Without Oath:

I am accused in this case. I have read over the statement given by the complainant. I undertake not to repeat any such incident in future. I have feelings of repentance over my act. I may kindly be permitted to compound the matter with complainant."

6. The aforesaid statements of the parties and the order of the

CMM are clearly predicated on the consent order dated 29.3.2012 passed by

this Court in RFA No.47/2001 and also so recorded in the statements of the

parties and the order passed by the CMM.

7. The further abuse of the process of the law is that surely there is

no entitlement to keep on seeking rehearing by seeking unnecessary delays

in filing and refiling without giving adequate reasons for the delay. This I

say so because in the application for condonation of delay all that is stated is

that the Supreme Court passed the order on 6.1.2014 and the delay in filing

and refiling the review petition is not deliberate or intentional. These types

of self-serving averments do not meet the requirement of law for grant of

condonation of delay. Obviously, review petitioners/appellants want to seek

hearing of their matter at their leisure and pleasure by seeking condonation

of delay of filing and refiling of 678 days + 491 days which is without any

basis, and therefore there are no grounds whatsoever for condonation of

delay and which delay in fact also amounts to an abuse of the process of the

law.

8. Learned senior counsel for the review petitioners/appellants has

sought to argue that the order dated 29.3.2012 is not in accordance with law

because the requirements of provision of Order XXIII Rule 3 CPC do not

stand complied with and for which purpose reliance is placed upon the

judgment of the Supreme Court in the case of Som Dev and Ors. Vs. Rati

Ram and Anr. (2006) 10 SCC 788.

9. The contention urged on behalf of the review

petitioners/appellants in this regard of non-compliance of the requirements

of provision of Order XXIII Rule 3 CPC is misconceived inasmuch as, it is

settled law by means of judgments of the Supreme Court itself that an order

of a court is an agreement in writing and once the Judge signs the order, the

agreement is in writing effectively by means of signatures of the parties.

Also, in a way the order dated 29.3.2012 is not a compromise strictly in

terms of Order XXIII Rule 3 CPC recording various terms of the

compromise in writing, and really everyday before courts thousands and

thousands of cases are resolved by recording the respective stands of the

parties which is taken effectively as a resolution of disputes without the

same strictly being required to follow the technicalities of Order XXIII Rule

3 CPC. Statements of counsels for the parties are accordingly taken for

resolving the disputes, recorded by the court, and which statements of the

counsels for the parties are taken as final for disposing of the matter as a

consent order. It is impermissible for the review petitioners/appellants now

to argue that their Advocate was not authorized to make the statements

because it is noted above that the review petitioners/appellants were infact

led by a senior Advocate and in fact there is no submission before this Court

that Advocate on record was not the Advocate on record for the review

petitioners/appellants.

10. In view of the above, the review petition is wholly

misconceived and an abuse of the process of the law and is hence dismissed

with actual costs. Respondent will file certificate of fees within a period of

one week from today with respect to the costs incurred by the respondent in

the review petition and which costs will be costs for dismissing the review

petition and these costs will be paid to the respondent within a period of six

weeks from today by the review petitioners/appellants.

11. Though counsel for the respondent seeks to show that

respondent had tendered the amount of Rs.1,00,000/- as required by the

order dated 29.3.2012 by way of a bank draft and which has not been

returned, this Court obviously in the review petition is not to see the

compliance of the consent order dated 29.3.2012 and which aspect will only

be an aspect with respect to execution of the order and not for the purpose of

deciding the review petition.

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