Kamlesh Kumari & Anr vs Rohtas Goyal & Ors
2015 Latest Caselaw 8144 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Order delivered on: 29th October, 2015

+                       CM(M) No.1127/2013

      KAMLESH KUMARI & ANR                             ..... Petitioners
                   Through         Mr.Ravi Gupta, Sr.Adv. with
                                   Mr.Ankit Jain, Adv.

                        versus

      ROHTAS GOYAL & ORS                       ..... Respondents
                    Through        Mr.Vidit Gupta, Adv. for R-1.
                                   Mr.Kirti Uppal, Sr.Adv. with
                                   Ms.Harleen Kaur & Ms.Monika,
                                   Advs. for R-2.

      CORAM:
      HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

R.P. No.428/2014 (for review of the judgment dated 3rd January, 2014) and C.M. No.15547/2014 (for condonation of delay of 214 days in filing the review petition), by respondent No.2

1. The respondent No.2/applicant in the above said matter has filed the application under Order XLVII Rule 1 read with Section 151 CPC to review the judgment to the extent of expunging paras 16 and 17 of the judgment dated 3rd January, 2014.

2. The said paras 16 & 17 of the order dated 3rd January, 2014 are reproduced herein below:-

"16. The learned trial court failed to appreciate that after withdrawal of her suit by respondent No.2, it was not open for her to be impleaded in the suit in question. The learned trial court also failed to consider that a divorce petition filed by late Sh.Shyam Sunder Goyal against the petitioner No.1 was dismissed on merits which order has

become final. These circumstances clearly indicate that the petitioner No.1 is the legally wedded wife of late Sh.Shyam Sunder Goyal.

17. The learned trial court did not appreciate the fact that the respondent No.2 herself in her reply had opposed the application and has stated that he has no interest in the suit proceedings. Similar is the position of respondent No.3 who informed the Court during the course of hearing that respondent No.3 has no interest to become a party in the present suit. It is therefore wrongly held by the learned trial court that the suit between the petitioners and respondent No.1 Rohtas Goyal cannot be disposed of without the presence of respondent No.2. In fact as per the conduct of the respondent No.2 in the earlier proceedings and the statement made in the reply, it is not necessary to implead respondent No.2 as a party in a suit which is filed by the petitioners for mandatory injunction. If the impugned order would be affirmed, the suit for mandatory injunction would be converted into title dispute between the petitioners and respondent No.2 which is not permissible in law even otherwise."

3. The respondent No.2 submits that there is an apparent error in the impugned order, as the litigation before the Competent court of jurisdiction under the provisions of Indian Succession Act, 1925 which was admittedly instituted prior to filing of suit between the parties (respondent No.2 and petitioners) is pending adjudication before the Administrative Civil Judge, Karkardooma Courts, Delhi, and therein only the issue of legal heirs will be decided after completion of trial. The said fact of pendency of litigations detailed hereinabove has been concealed in the plaint and as well as from this Court.

4. It is stated by the learned counsel for respondent No.2 that the observations relating to legal heirs or legally wedded wife are uncalled for as the same cannot be adjudicated in a petition under Article 227 of Constitution of India, and observations relating to legally wedded wife and only legal heirs in the judgment are seriously prejudicing the

respondent No.2's rights before competent Court of law, where matter is subjudice.

5. Learned counsel for the petitioners submits that the averments made in the application do not constitute any sufficient reasons for reviewing the order dated 3rd January, 2014. If the respondent No.2 was aggrieved of any portion of the order dated 3rd January, 2014, it was open to the respondent No.2 to challenge the said order before the appropriate forum. However, the respondent No.2 cannot seek review of the order in the present proceedings. The respondent No.2 is seeking to challenge the impugned order in guise of review.

6. The disputes at that point of time of passing the impugned order was that the locker in question pertains to late Sh.Shyam Sunder Goyal and the question was as to who is entitled to the contents of the said locker. The application under Order 1 Rule 10 CPC was predicated on the fact that the respondent No.2 is the wife of late Sh.Shyam Sunder Goyal and is thus liable to be impleaded. The trial Court allowed the application on 21st October, 2013. The said order was assailed by the petitioners in the petition under Article 227 of the Constitution of India and the impugned petition was allowed by judgment dated 3rd January, 2014. The other disputes pending between the parties are to be determined as per law.

7. Along with the review petition, the respondent No.2 has also filed the application under Section 5 of the Limitation Act for condonation of delay of 214 days in filing the review petition.

8. It is stated in the application that the order in the petition was reserved on 10th December, 2013 and the same was pronounced on 3rd January, 2014. The main grounds taken in the application are that at that time, respondent No.2's counsel informed that the petition has

been allowed, thereby she stands deleted from array of parties and since respondent No.2 herself did not want to be arrayed as party in the suit, thus did not perused the order. However, later when in August, 2014 respondent No.2 changed her advocate, and on 29 th August, 2014 appeared in person in a case listed before the Civil Judge, Karkardooma Courts, Delhi, then it was noticed that petitioners are heavily relying upon the order dated 3 rd January, 2014 of this Court, by stating that petitioners have been declared as legal heirs of deceased Sh.Shyam Sunder Goyal and it is also declared that petitioner No.1 was his only legally wedded wife, therefore succession certificate without producing evidence may be granted and there is no requirement of leading evidence. It is only thereafter that the impugned order was perused and thus the present application was filed.

9. Therefore, on these grounds, respondent No.2 seeks condonation of delay in filing review application of 214 days for recalling the impugned order.

10. The application is strongly opposed by the learned counsel for the petitioners by stating that the statements made in the application are patently false and respondent No.2 was aware fully about the exact order passed positively in July, 2014, as the said knowledge appeared from the judicial record in the litigation pending between the parties. It is submitted that the reasons given in the application for condonation of delay are false and not true and the same do not show any sufficient cause for seeking condonation of delay.

11. Learned counsel for the petitioners submits that the order dated 3 rd January, 2014 was filed by the petitioners before the Courts below in various other litigations, on various dates. It is pertinent to mention herein that in the said proceedings, the

respondent No.2 is also one of the parties. The impugned order was also filed by the respondent No.2 in Suit No.46/2013, titled as Shri Rajender Prasad Goel v. Smt. Sandhya Devi Goel, pending before the Courts at Karkardooma, for seeking the impleadment of the petitioners in the said suit.

12. The application has been filed by the respondent No.2 through a new counsel. The entire blame has been put upon the earlier counsel and no affidavit of the earlier counsel has been filed to substantiate the allegations made in the present application.

13. In the said suit, vide order dated 22 nd July, 2014, the learned Judge in the trial Court had allowed the application filed by the petitioners and impleaded them as parties to the said suit. In the said order, the Judge had also relied upon the impugned order dated 3rd January, 2014 passed by this Court, including the observations made by this Court. It is thus clear that at least on 22nd July, 2014, the respondent No.2 must have come to know about the observations made by this Court.

14. It is apparent that the order dated 22 nd July, 2014 in Suit No.46/2013 was passed on the basis of the impugned order dated 3rd January, 2014 passed by this Court. Copy of the order dated 22nd July, 2014 was filed along with the reply. The respondent No.2 was aware of the exact order in July, 2014 as appeared from judicial record, still the incorrect statement is made in the application. Krishna Iyer J. in Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 described truth and justice as under:

"8. ...Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness.

This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution of isolated problems but resolving the conflict in its wider bearings. (Emphasis supplied)"

15. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Supreme Court again highlighted the significance of truth and observed that the truth should be the guiding star in the entire legal process and it is the duty of the Judge to discover truth to do complete justice. The Supreme Court stressed that Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth. The Supreme Court observed as under:

"32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.

33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

xxx xxx xxx

35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.

xxx xxx xxx

43. "Satyameva Jayate" (literally "truth stands invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon Independence of India, it was adopted as the national motto of India. It is inscribed in Devnagri

script at the base of the national emblem. The meaning of the full mantra is as follows:

"Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of truth resides."

51. In the administration of justice, Judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the administration of justice.

52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object." (Emphasis supplied).

16. In view of the aforesaid reasons, I am of the view that the respondent No.2 has not made the correct statement in the application for condonation of delay. The same is liable to be dismissed. Consequently, the review petition is also dismissed.

17. No costs.

(MANMOHAN SINGH) JUDGE OCTOBER 29, 2015