Kuldip Kaur vs Smt Surinder Kaur
2016 Latest Caselaw 401 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

                 Judgment delivered on: 19th January, 2016

+       CONT.CAS(C) 795/2013

KULDIP KAUR                                                  ..... Petitioner
                                  Represented by: Mr. Anil Sapra, Sr. Adv.
                                  with Mr. Suman Malhotra and Ms. Ishita
                                  Yadav, Advs.

                         versus

SMT SURINDER KAUR                            ..... Respondent
                 Represented by: Mr. Raman Kapoor,
                 Sr.Adv. with Mr. Sandeep Vishnu, Mr. Anil
                 Kumar Gupta and Ms. Mahak Gupta, Advs.
                 in Review Petition no. 425/2015.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

C.M. No. 18651/2015 In view of the averments made in the instant application, the delay of 68 days in filing the review petition is condoned.

Accordingly, the application is allowed. CM. No. 26978/2015 In view of the averments made in the instant application, the delay of 4 days in filing the reply to the review petition is condoned and the reply is taken on record.

Accordingly, the application is allowed.

REV PET. NO. 425/2015

1. Vide the present petition, petitioner Mira Mittal seeks recalling of order dated 05.02.2015 passed in Contempt Cas (C) 795/2013 and order dated 23.02.2015 passed in CM. No. 3098/2015.

2. It is not in dispute that the petitioner in the Review Petition was not a party in the Contempt Case mentioned above and vide order dated 05.02.2015, this Court declared that Sale Deed dated 31.08.1992 executed in violation of order dated 24.07.1984 has no consequences, accordingly, set aside being null and void keeping in view the law settled in All Bengal Excise Licenses Association v. Raghavendra Singh and Ors. AIR 2007 SC 1386.

3. Mr. Anil Sapra, ld. Senior Counsel appearing on behalf of petitioner Kuldip Kaur in the Contempt Petition submitted that since the petitioner in the Review Petition was not a party in the Contempt Petition mentioned above, therefore, the present petition is not maintainable and to strengthen his arguments, he has relied upon Bharat Singh v. Firm Sheo Parshad Giani Ram and Ors. AIR 1978 Delhi 122 wherein it is held as under:

"(31) In our opinion, it is not necessary to go into the facts of the case because the impugned order dismissing the review application can be upheld on a preliminary point, namely, that no review petition under Order 47, rule I Civil Procedure Code could be filed by Bharat Singh. Order 47, rule I Civil Procedure Code reads as under:-

"1. (1) Any person considering himself aggrieved:-

(A) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(B) by a decree or order from which no appeal is allowed, or

(C) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

On a very reading of the rule it is clear that a review application can be filled only by a party to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. It was urged on behalf of the petitioner that the phrase "any person considering himself aggrieved" would include anyone who is adversely affected by the impugned order, whether that person is or is not party to the list in which the impugned order has been passed. We do not agree. As will be apparent from a reading of the rule any person considering himself aggrieved by a decree or order may apply for review provided he can establish that he "from the discovery of new and important matters of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made." This postulates that the person applying

for review has to satisfy two conditions, namely, that he is aggrieved by the order and also that he for the reasons mentioned was not in a position to bring that fact to the notice of the Court earlier which resulted in a wrong order being passed. If these two conditions are necessary before a review application can be moved, it follows that the review application has to be made by a person who was a party to the list decided by the impugned order or decree."

4. Also relied upon case of Bangalore Development Authority and etc. v. P. Anjanappa (since deceased by L.R.s) and Ors. 2004 AIHC 534 of Karnataka Court, wherein it is held as under:

"11. The preliminary objection raised by learned Counsel for private respondents need not detain me for long, in view of the settled legal position. It is now well- settled that a review application can be filed only by a party to the Us in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. Alternatively, the review petition cannot be filed by a party who is not a party to the suit. It is not in dispute nor can it be disputed that the petitioners in Review Petition No. 752 of 2001 were not parties before the Trial Court nor parties to the proceedings before this Court in the M.F.A. filed by BDA against the order passed by the Trial Court granting temporary injunction against BDA. Therefore, petitioners cannot seek review of an order in which they were not parties to the lis. Therefore, the review petition filed by allottees requires to be rejected. In view of this finding, it may not be necessary to consider the application filed by BDA under Order 1, Rule 10(2) of the CPC, wherein a prayer to transpose BDA as petitioner 17 in the review petition filed by the private parties is made. Accordingly, the said application is rejected as unnecessary."

5. The fact remains that petitioner herein entered into an agreement to sell and purchase with Smt. Surinder Kaur, respondent in the Contempt Petition whereby the property in question was agreed to sell for an amount of Rs.45,000/-. Accordingly, the petitioner herein paid an amount of Rs.40,000/- and Rs.5,000/- at the time of Execution of the Sale Deed.

6. It is not in dispute that pursuant to Agreement to Sell petitioner Mira Mittal has been in possession of the property in question till date.

7. It is informed by the counsel for the petitioner Kuldip Kaur that the property in question has already been jointly sold by the petitioner and respondent in the Contempt Petition to a third party on 05.03.2015

8. It is pertinent to mention here that order dated 05.02.2015 was passed on the submissions made by the petitioner and respondent in the contempt petition. However, neither of the parties disclosed that petitioner herein had entered into an agreement to sell with respondent in the contempt case in the year 1981 and the said documents were executed before the order dated 24.07.1984 against which the aforesaid Contempt case had arisen and filed in the year 2013. Therefore, the judgments relied upon by the petitioner Kuldip Kaur have no bearing.

9. Since, the petitioner in the Review Petition is affected by the order dated 05.02.2015 and the facts narrated in the present petition

were not brought before this Court, therefore, Para 12 of order dated 05.02.2015 is hereby set aside.

10. Accordingly, the petition is allowed.

11. Consequently, interested parties are at liberty to approach the proper Forum for establishing their rights over the property in question.

12. Dasti.

SURESH KAIT, J

JANUARY 19, 2016 jg