Vijay Verma vs Krishan Kumar Verma & Ors
2016 Latest Caselaw 178 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 11.01.2016

+       FAO(OS) 629/2015

VIJAY VERMA                                                         ... Appellant

                                            versus

KRISHAN KUMAR VERMA & ORS                                           ... Respondents
Advocates who appeared in this case:
For the Appellant                      :   Mr Sarfaraz Khan with Mr Amanullah
For the Respondent Nos. 1-5            :   Mr Neeraj Malhotra with MR Ravinder Singh
For the Respondent No. 6               :   Mr Vidit Gupta
For the Respondent No. 7               :   Mr Niraj Jha
For the Respondent Nos. 8, 9 & 11      :   Mr Sushil Jaswal

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                    JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. This appeal is directed against the order dated 04.09.2015 passed by

a learned Single Judge of this Court in Review Petition No. 414/2015

2. Earlier, the appellant, being the defendant No. 8 in the suit, had filed

an appeal [FAO(OS) 434/2015], being aggrieved by the order dated

18.05.2015 passed by the learned Single Judge in IA 4717/2015. In that

order, it had been mentioned that a similar prayer had been made in

IA 13652/2011, which had been declined. It was also stated in the order

dated 18.05.2015 that the said application (IA 13652/2011) had been made

by the appellant (defendant No.8). The learned counsel for the appellant

had drawn the attention of this Court to the fact that IA 13652/2011 had not

been filed by the appellant (defendant No.8). It is in those circumstances

that this Court permitted the learned counsel for the appellant to withdraw

this appeal with liberty to seek a review of the order dated 18.05.2015

pertaining to IA 4717/2015. It is obvious that this Court permitted the

appellant to file a review before the learned Single Judge with the object of

correcting the error in recording that IA 13652/2011 had been filed by the

appellant (defendant No. 8). It is an admitted fact that IA 13652/2011 had

not been filed by the appellant (defendant No.8) but had, in point of fact,

been filed by the plaintiff.

3. Thereafter, the appellant (defendant No.8) filed the review petition

(RP 414/2015) in pursuance of the liberty granted by this Court. The order

passed in the review petition reads as under:-

"REVIEW PET. No.414/2015 The petitioner is seeking review of the order dated 18.05.2015. While disposing of I.A. No. 4717/2015 this Court had passed the following order:

"This is an application filed by defendant no.8 seeking deposit of rent in Court.

Notice of this application has been accepted by the learned counsel for the non-applicant. Learned counsel for the non-applicant has drawn attention of this Court to the order dated 01.3.2013 where a similar prayer (in 1.A.No.13652/2011) had been declined. In that application also a prayer had been made by defendant no.8 that the rent be deposited in Court but the Court had noted that neither was it necessary to appoint a receiver and nor was it necessary to answer this prayer in favour of the defendant.

This application already having been answered has thus become infructuous and no further orders are called for. Dismissed."

Learned counsel for the petitioner submits that the earlier application (IA No. 13652/2011) had been disposed of on 01.03.2013 but a perusal of that order shows that the question about the deposit of rent had not been gone into. This Court notes that the order sought to be reviewed is permissible only if there is mistake or error apparent on the face of the record or due to an inadvertence or an omission and this was inspite of the exercise of due diligence.

The order dated 18.05.2015 is clear, the application seeking deposit of rent had been disposed of on merits; the Court in the presence of the parties had passed a speaking order noting that neither was it necessary to appoint a receiver and nor was it necessary to answer this prayer in favour of the defendant i.e. the prayer made by the applicant (IA No. 13652/2011) that the rent should be deposited with the Court. The Court while dismissing application (IA No. 4717/2015) had declined the prayer for deposit of rent.

This Court has also been informed that this order is the subject matter of an appeal.

No ground is made out for review.

Petition is dismissed."

4. This is the order which is impugned before us. It is noticed

that the learned Single Judge observed that the order sought to be

reviewed is permissible only if there is mistake or error apparent on the

face of the record or due to an inadvertence or an omission. This Court

had already pointed out the error in the order dated 18.05.2015 which was

sought to be reviewed inasmuch as the order was decided on the basis of

a dismissal of an earlier application which was said to have been made by

the appellant (defendant No.8) when, in fact, no such application had

been made by the appellant (defendant No.8), but had been made by the

plaintiff.

5. Furthermore, the prayer in IA 4717/2015, which was dismissed by

the order dated 18.05.2015, was for deposit of the entire rent collected

from the premises in question because the respondent Nos. 1-5 herein had

failed to obey the order dated 01.03.2013 passed in IA 13652/2011. We

may point out that on 01.03.2013, when IA 13652/2011 had been disposed

of by the learned Single Judge, while refusing to appoint a receiver at that

stage, the learned Single Judge had directed the defendant Nos. 1 and 9-12

to file quarterly accounts with respect to the suit properties in their

control clearly indicating the leased rent as well as maintenance

charges received by them. Copies of the lease deeds and maintenance

agreements executed by defendants Nos.1 and 9 to 12 were also directed

to be placed on record with an advance copy to learned counsel for

plaintiff. The prayer in IA 4717/2015 had been made for deposit of rent

because of the non-compliance of these directions contained in the order

dated 01.03.2013 and particularly to demonstrate the conduct of the

respondent Nos. 1-5 herein (the defendant Nos. 1 and 9-12 in the suit).

6. Therefore, we find that the ambit and amplitude of IA 13652/2011

and IA 4717/2015 were not identical. In this backdrop, the misconception

on the part of the learned Single Judge in the order dated 18.05.2015 that

IA 13652/2011 had also been filed by the defendant No.8 (the appellant

herein), formed the basis of the decision for dismissing IA 4717/2015

without discussing the issues raised by the appellant (defendant No.8).

7. It is in these circumstances that we had permitted the appellant

(defendant No.8) to withdraw the appeal with liberty to move a review

petition before the learned Single Judge. Unfortunately, the learned Single

Judge has, without going into the issues raised in the review petition,

dismissed the same despite the liberty given by this Court. Consequently,

we set aside the impugned order dated 04.09.2015 and restore the review

petition in the file of the learned Single Judge who shall examine the same

on merits and dispose it in accordance with law. The matter shall be listed

before the learned Single Judge, in the first instance, on 12.02.2016. We

make it clear that we have not made any observation on the merits of the

matter.

                                      BADAR DURREZ AHMED, J



JANUARY 11, 2016                        SANJEEV SACHDEVA, J
SR