Smt. Neety Gupta vs Smt. Usha Gupta And Ors.
2017 Latest Caselaw 955 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS (OS) No. 2209/2008

%                                                      17th February, 2017


SMT. NEETY GUPTA                                                 ..... Plaintiff
                           Through:       Ms. Mala Goel, Advocate.


                           Versus


SMT. USHA GUPTA AND ORS.                         ..... Defendants
                  Through: Ms. Anjali Sharma, Advocate for D-4.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

I.A. No. 2026/2017 (Under Order III Rules 1, 2 and 4 CPC)

1.

By this application plaintiff/applicant seeks to bring to the

attention of the Court that the reply which was filed on behalf of the

defendant no. 4 to the Review Petition No. 146/2016 was by a counsel who

had not filed the vakalatmama. This is a correct fact as per record, however,

today another counsel appears for defendant no. 4 and states that she has

already filed her vakalatnama on behalf of defendant no.4.

2. In view of this position no further orders are called for to be

passed in this I.A. and the same is disposed of accordingly.

I.A. No.3900/2016 (for condonation of delay)

3. For the reasons stated in the application, delay of two days in

filing the review petition is condoned.

I.A. stands disposed of

Review Petition No. 146/2016 (by plaintiff)

4. By this review petition under Section 114 of the Code of Civil

Procedure, 1908 (CPC), plaintiff seeks review of the order dated 28.1.2016

dismissing I.A. No. 22524/2014 by which plaintiff had prayed for mesne

profits. This application was dismissed by passing the following order:-

"I.A. No.22524/2014 (under Order XX Rule 12 CPC by plaintiff) in CS(OS) No.2209/2008

By this application the plaintiff seek mesne profits. However, no evidence was led to prove the mesne profits before passing of the preliminary decree. I may also note that plaintiff had not sought framing of any issue with respect to mesne profits when issues were framed on 14.5.2010. Once therefore plaintiff has not pressed the relief with respect to damages/mesne profits before the judgment and decree is passed, the present application cannot lie under Order XX Rule 12 CPC and which is therefore dismissed.

I.A. stands disposed of."

5. Learned counsel for the plaintiff places reliance upon the

judgment of the learned Single Judge of this Court in the case of Sita

Kashyap and Another Vs. Harbans Kashyap and Others 183 (2011) DLT

47, to argue that even after a preliminary decree is passed in a partition suit,

yet, for the purpose of grant of mesne profits further inquiry can be

conducted including leading of evidence so as to determine the entitlement

of a plaintiff in a suit for partition for mesne profits.

6. Admittedly, this judgment which is relied upon in the case of

Sita Kashyap (supra) was not cited before this Court when the order was

passed on 28.1.2016 dismissing I.A. No. 22524/2004. That a judgment is

'erroneous' has two connotations. One aspect is that the judgment is

'erroneous' for being challenged in appeal and thus for being set aside, and

the second connotation is that the judgment is 'erroneous' for the purpose of

allowing of a review petition. In my opinion, since the judgment in Sita

Kashyap (supra) was not cited before this Court when this Court passed the

order dated 28.1.2016 dismissing I.A. No. 22524/2014, this review petition

effectively is for re-arguing the case and with respect to which relief was

declined by a speaking order dated 28.1.2016 giving reasons that no

evidence was led to prove mesne profits and plaintiff had not sought

framing of issues on mesne profits. The reasons given in the order dated

28.1.2016 are one possible and plausible view, and it is not as if this view

taken is ex-facie illegal, more so because the judgment in Sita Kashyap

(supra) case was not cited before this Court.

7. Plaintiff, therefore, may possibly have a good case for

challenging in appeal the order dated 28.1.2016 dismissing I.A. No.

22524/2014 declining the award of mesne profits, however, there is no error

which is apparent on the face of record for allowing of a review petition

because reasons are given in terms of the order dated 28.1.2016 to decline

grant of mesne profits and which reasons given cannot be said to be

erroneous on the face of record.

8. In view of the above position, since this review petition in the

opinion of this Court is not maintainable, counsel for the plaintiff/applicant

is allowed to withdraw this review petition with liberty to file an appeal

against the impugned order dated 28.1.2016 dismissing I.A. No. 22524/2014

and in which appeal plaintiff can raise all grounds against the order dated

28.1.2016 as asserted in the present review petition and also other grounds if

may be available to the plaintiff. I may also note that the pendency of the

present review petition would be a possible ground not only for plaintiff to

seek condonation of delay in filing the appeal against the order dated

28.1.2016, but also, the case of the plaintiff so far as limitation period of

filing of the appeal is concerned would also be within parameters of Section

14 of the Limitation Act, 1963.

9. The review petition is accordingly disposed of in terms of the

aforesaid observations.

FEBRUARY 17, 2017                               VALMIKI J. MEHTA, J
AK