Metal Box India Ltd vs Tk Sehgal & Sons Huf & Ors
2017 Latest Caselaw 5657 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
                     Judgment delivered on : October 12th, 2017

+   Review Pet. No.305/2016 in C.M.No.30021/2015 in RFA 97/2012,
    CM 22281/2016, 17615/2017 and 24498/2016

    METAL BOX INDIA LTD                                ..... Appellant

                       Through:     Mr.Amit Sibal, Senior Advocate with
                                    Ms.Malvika     Trivedi,   Mr.Nikhil
                                    Rohatgi, Mr.Namit Suri, Mr.Jugal
                                    Wadhera,    Mr.Ghanshyam      Joshi,
                                    Mr.Vidit Gupta, Advocates

                       versus

    TK SEHGAL & SONS HUF & ORS                         ..... Respondent

                       Through:     Mr.H.L. Narula, Mr.Bhupesh Narula,
                                    Mr.Lovedeep      Singh     Bindra,
                                    Advocates

    CORAM:
    HON'BLE MR. JUSTICE P.S.TEJI

                                JUDGMENT

P.S.TEJI, J.

1. The present review application has been filed by the appellant/ petitioner under Section 114 read with Section 151 read with Order XLVII Rule 1 of the CPC seeking review of the judgment and order dated 26.05.2016 passed in application bearing CM No.30021/2015.

2. The facts of the instant matter are that the appeal bearing RFA 97/2012 was preferred by the appellant against the judgment and order dated 04.02.2012 passed by the Court below. Vide order dated

04.02.2012, the application under Order 12 Rule 6 CPC filed by the plaintiffs/respondents was dismissed. It was contended in the suit filed by the plaintiff/respondent that the defendant/appellant was a tenant in the northern portion of property no.4, Sardar Patel Marg, New Delhi comprising ground floor, first floor and Barsati floor along with four servant quarters and two garages etc. on a monthly rent of Rs.4,360/-. The water and electricity charges were to be paid as per consumption. The plaintiffs terminated the tenancy of the defendant vide notice dated 10.02.2005. Earlier a suit for possession in respect of the suit premises was filed but the same was dismissed.

3. In the written statement filed on behalf of the appellant/ defendant, it was contended that the site plan was incorrect. The rate of rent was also denied. In the earlier instituted suit, the rate of rent was claimed to be Rs.2,760/- per month. It was alleged that the plaintiff had asked for a loan from the defendant which was given subject to the condition of the same being deposited with the defendant company.

4. During the pendency of the suit, the appellant/defendant was directed to deposit the arrears of rent @ Rs.4,360/- per month. While dealing with the application under Order 12 Rule 6 CPC, it was held by the Court below that the rate of rent of the suit premises was Rs.4,360/- per month. The Court below also passed the decree of possession in respect of the suit premises and directed the appellant/ defendant to deliver the possession of the suit premises to the

plaintiffs within one month. The suit survived only on the question of mesne profits.

5. Feeling aggrieved of the impugned order dated 04.02.2012, the appeal was preferred by the appellant. The main appeal was disposed of vide order dated 07.03.2012 which reads as under :

"After arguments were heard in this appeal it is agreed that the appeal can be disposed of by granting time of two years from today to the appellant to vacate the suit premises and the appeal is not being pressed on merits. The appellant agrees to pay a sum of Rs.1,00,000/- per month as mesne profits from the date of the impugned judgment and decree for a period of one year from today to be paid every month and thereafter a sum of Rs.2,00,000/- per month every month for the second year. Any amount already paid for this period by the appellant to the respondents can be adjusted towards payment required to be made of the aforesaid amount of mesne profits. The payment of mesne profits is without prejudice to the respective rights and contentions inasmuch as the issue of mesne profits is pending disposal before the Trial Court. The appellant will also clear all electricity and water charges payable with respect to the suit premises till the premises are vacated. It is clarified that the period of two years is the outer limit and the appellant can vacate the premises earlier if it wants to. Let the appellant file an undertaking in the aforesaid terms in this Court within a period of two weeks from today. On the appellant filing and complying with the terms of the aforesaid undertaking, execution of the impugned judgment and decree dated 4.2.2012 is stayed for a period of two years from today or earlier till the

premises are vacated. Appeal is disposed of accordingly."

6. While disposing of the appeal vide order dated 07.03.2012, two years time was granted to the appellant subject to deposit of mesne profits @ Rs.1,00,000/- per month for first year and Rs.2,00,000/- per month for the second year. On the undertaking given by the appellant, the appeal was disposed of.

7. The appellant had made the payment only for four months and stopped making payment thereafter. It was submitted that the undertaking given by the appellant was defective. In 2015, one application bearing CM No.30021/2015 was moved by the appellant with the prayer to take up the present appeal for hearing and for proper and final adjudication on merits, the order dated 7.3.2012 being unenforceable. One application bearing CM(M) 439/2013 was also moved and was taken up being connected matter. All the applications were disposed of vide order dated 26.05.2016. Relevant portions of the order dated 26.05.2016 read as under :

"31. Along with the present appeal there are three contempt petitions. The appellant had filed a contempt petition No.434/13, wherein it was stated that the Respondents are in content of order dated 28.09.2012 and 07.11.2012 of this court as the Respondents have malafidely filed and pressed an execution petition seeking execution of a decree of possession before the learned trial court inspite of the fact that status quo orders were passed by this court. While as Contempt Petition No. 452/14 and 504/13 was filed by the respondent wherein the respondents has sought initiation of an action on

the part of the appellant on account of having not complied with the order dated 07.03.2012 for vacating the premises and on account of withdrawal of undertaking dated 19.03.2012 of one Rohit Shama, filed in pursuance of order dated 07.03.2012 respectively.

32. I am not incline to take any action against the appellant or even the respondent for the reason that the contempt is between the alleged contemnor and the Court. Further, the parties have essentially filed the contempt petitioner during the pendency of the applications in the main matter RFA No.97/2013 in order to bring to bear pressure on the opposite side. That is not the purpose of the contempt. The purpose is to see that majesty of the Court is not lowered. Since this Court has already rejected the objections/applications filed by the appellant for hearing the appeal on merits, therefore, I am not inclined to further multiply the litigation before this Court by initiating the action against the appellant or the respondent by initiating action for contempt. Therefore, all the three Contempt Petitions are rejected."

8. It was argued by the counsel for the respondents that the consent order dated 07.03.2012 was passed while disposing of the main appeal and the appellant did not want to comply with the same. It was further argued that since the execution petition was filed by the respondent, hence the agreement stood negated. There has to be an agreement under Order 22 Rule 3 CPC. Thereafter, a review petition had been filed claiming that the order dated 26.05.2016 did not consider the developments which had taken place after 07.03.2012 and in between four applications were filed.

9. A review petition bearing R.P. No.327/2016 in CM (M) 439/2013 was filed which was disposed of vide order dated 02.08.2016. Relevant portion from the order reads :

"Hence, the power to recall witnesses for cross- examination is to be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The court may also for purposes other than for securing the clarification under inherent power in appropriate cases reopen the evidence and/ recall witnesses for further examination. In my opinion on the facts and submissions made by the petitioner no such case is made out for this court to exercise its power under Order 18 Rule 17 CPC or under section 151 CPC to recall the two witnesses as sought by the petitioner. There was clearly no merit in the application moved by the petitioner before the trial court. There are no reasons to differ with the views of the trial court in the impugned order dated 4.4.2013.

In my opinion, there is no mistake or error apparent on the face of the record or any other sufficient reason for this court to review the judgment dated 26th may, 2016."

10. The petitioner/appellant in support of the present review petition has taken the grounds that there exists an apparent mutual contradiction in the judgment and order dated 26.05.2016 as at one place the judgment and order dated 26.05.2016 holds that the order dated 07.03.2012 would fall within the ambit of Order 23 Rule 1 as it is a case of abandonment of claim, while the same judgment and order dated 26.05.2016 at another place holds the order dated 07.03.2012 to

be one of a compromise, which falls under Order 23 Rule 3. The counsel of the petitioner/appellant contends that there is mutual contradiction in two views recorded in the said order as at one place the Hon'ble Court completely disregards the applicability of Order 23 Rule 3 holding that there was no compromise which was recorded in the order dated 07.03.2012 and it was a case of abandonment of claim and would fall within the ambit of Order 23 Rule 1 of CPC, however at a later stage the Hon'ble Court holds that though the compromise was entered between the parties, the same was immune from the mandatory conditions as prescribed by Order 23 Rule 3 of CPC, 1908. The petitioner/appellant stated that this inconsistency in the order cannot coexist in the same order. Further, it was submitted by the counsel of the petitioner/appellant that there has been an erroneous interpretation and application of law to hold that the order dated 07.03.2012 is immune from the mandatory conditions as prescribed by the Order 23 Rule 3 CPC, 1908. It relation to the above said ground, it was submitted that a plain reading of Order 23 Rule 3 demonstrates that the legislative intent behind Order 23 Rule 3 is not to distinguish or differentiate between a settlement recorded during the course of arguments in a judicial order as opposed to a settlement recorded dehors the involvement of Court. It was further submitted that the mandatory conditions as prescribed by Order 23 Rule 3 of the settlement/compromise being in writing and signed by the parties and the decree being drawn pursuant to such settlement/compromise have to be complied with, irrespective of whether the settlement/compromise is recorded during the course of the arguments

in a judicial order or a settlement/compromise which is arrived at dehors the involvement of the Court. Further, it was submitted that the Order dated 26.05.2016 does not appreciate the well settled principle of law that when law prescribes something to be done in a particular manner it has to be done in that particular manner and no other manner is possible. It was further submitted that there has been a non- appreciation of the import of the composite compromise order dated 07.03.2012 and an erroneous appreciation of fact to hold that all the conditions of the undertaking were complied with. Moreover, it was submitted that judgment and order dated 26.05.2016 suffers from material infirmity apparent on the face of the record for failing to consider that the order dated 07.03.2012 was a conditional order which inter-twined or marred the conditionality of the appeal not being pressed on merits, stay of eviction order dated 04.02.2012 for a period of two years during which no execution proceedings could be undertaken for the composite understanding cum compromise to be valid. The judgment and order dated 26.05.2016 suffers from material error in failing to appreciate that well before the period of two years recorded in the order dated 07.03.2012 and in fact after the 10th month itself, on 16.01.2013, the Respondent filed proceedings for execution of the decree of eviction dated 04.02.2012 passed by the Learned Trial Court. The judgment and order sought to be reviewed suffers from material error apparent on the face of the record for failing to take into account the fact that the Respondent had further resiled from the compromise recorded in the order dated 07.03.2012 by moving an application dated 26.06.2013 for possession with police assistance

before this Hon'ble Court being CM No. 9900 of 2013, well before the expiry of two years. Further, the order dated 26.05.2016 has an error apparent on record and exfacie mistake in law and facts as it does not appreciate that the order dated 07.03.2012 was in the nature of a compromise and consequently required compliance with the mandatory and imperative provisions of Order XXIII Rule 3 of the CPC. With respect to the order dated 26.05.2016, counsel for the petitioner/appellant deliberated in the error with respect to holding that a concession was made or accepted by counsel appearing for the review petitioner. Further, it suffers from an error apparent by the disposal of the matters pending before it without waiting for the conclusion of the Civil Suit being CS (OS) No. 3213 of 2011 challenging the decree dated 21.01.1999 on the ground of fraud and inherent lack of jurisdiction and the application under Order XII Rule 6 filed by the Review Petitioner therein. Moreover, the order dated 26.05.2016, as per the counsel for the petitioner/appellant ought to have been appreciated with respect to the fact that the suit filed by the Respondent should have been dismissed for want of jurisdiction as the rent of the suit property was less than Rs.3.500/- per month and the tenancy was therefore covered by the provisions of the Delhi Rent Control Act, 1958. By not doing so, the order dated 26.05.2016 contains a jurisdictional error which is evident on the face of the record. Finding further faults in the order dated 26.05.2016 it was submitted that the said order should have appreciated that the Respondent had itself in eviction proceedings filed under the said Act in 1981 and subsequent amendment filed in 1992 mentioned the rent

to be Rs. 2760/- per month as contended by the Review Petitioner. It also lacks appreciation of the claim of the Respondent in the subsequent suits for eviction, one of which was contemporaneous to the amendment mentioned above, was contrary to the above assertion regarding the quantum of rent. In addition to the above grounds, the counsel for the petitioner/appellant also submitted that the judgment and order dated 26.05.2016 suffers from irreconciliable contradiction, apparent on the face of the record, inasmuch as this Hon'ble Court has on the one hand held that the present was a case covered under Order XXIII Rule 1 and not Order XXIII Rule 3 CPC and has in the same breath also held that this was a case of compromise arrived at in the course of arguments and hence did not require compliance with the requirements under Order XXIII Rule 3.

11. The counsel for the petitioner/appellant has placed reliance on the ratio of the judgment of this Court in Bhai Swinder Singh v Ram Kishore & Anr, 66 (1997) DLT 575 which relied on the judgments of the Hon'ble Supreme Court in Gurpreet Singh v Chatur Bhuj Goel (1988) 1 SCC 270 and the Division Bench of this Court in Kamla Devi v Prabhat Chand 1997 (40) DRJ (DB) to hold that conditions provided under Order XXIII Rule 3 are mandatory in nature and since the application moved to record the purported compromise was not signed by all the parties, the application suffered from legal discrepancy and the compromise could not have been recorded on the basis of the said application. Counsel for the petitioner/appellant has placed further reliance on the law laid down in Mrs.Jagdish

Manohar Singh v M/s South Delhi Builders P. LTd ILR (2008) Supp. (9) Delhi 89 which was passed under similar circumstances and it was held that "it is axiomatic that where the law prescribes a mode of doing something, no other procedure or mode of its performance is lawful. Therefore, the Court has to adhere to the parameters of Order 23 in disposing of a suit- either permit its withdrawal (Rule 1) or record a lawful compromise. In the latter event, a decree is also drawn in terms of the compromise." Moreover, with respect to the order dated 26.05.2016 being erroneous with respect to not following the settled law that even where a compromise entails withdrawal or non-pressing on merits, the same does not cease to be governed by Order XXIII Rule 3 and does not become a case of withdrawal simpliciter governed by Order XXIII Rule 1 CPC. Reliance in this regard was placed on the judgment of this Hon'ble Court in Sneh Gupta v Devi Sarup, (2009) 6 SCC 194 wherein, it was observed that "it is not a case where the original plaintiff applied for withdrawal of the suit simpliciter. She did not relying on or on the basis of a compromise entered into by and between the parties. If a suit is to be decreed or dismissed on the basis of a compromise, even if permission is sought to withdraw the suit pursuant thereto, in our opinion, Order 23 Rule 1 of the Code may not have any application."

12. It is an admitted fact that the main appeal came to an end on 07.03.2012. Application CM No.30021/2015 was filed but there was no prayer that the order putting an end to main appeal be recalled. The present review petition is not for review of the disposal of the

main appeal rather it is for a review of the judgment and order dated 26.05.2016 passed in application CM No.30021/2015. It is argued that the order passed in the main appeal is not enforceable.

13. Undisputed facts are that the appellant has taken the possession of the suit premises on 01.07.1966 vide lease deed dated 11.08.1966. The respondent filed an eviction petition against the appellant on 08.12.1981 and then filed the suit for possession and damages on 26.07.1991. On 21.10.1999, the said suit was dismissed. A new suit was filed by the respondents/plaintiffs for possession, damages and mesne profits on 08.04.2005. The said suit was decreed for possession vide impugned order dated 04.02.2012. Thereafter, the appellant/defendant preferred the present appeal. The appeal was disposed of vide order dated 07.03.2012. It is also undisputed fact that the mesne profits have not been paid before the filing of the suit by the plaintiffs/respondents, at the time of filing of the appeal and after four months of passing of order dated 07.03.2012 by this Court. No review application was filed against the order dated 07.03.2012 by the appellant within the prescribed period. Thereafter, an application bearing CM No.30021/2015 was filed but there was no prayer that the order putting an end to main appeal be recalled. The present review application was moved subsequently and that too for review of order dated 26.05.2016.

14. It is apparent from the record that the disposal of the main appeal is not under challenge and neither a review has been sought by the appellant/petitioner. While disposing of the appeal, benefit of two

years was given to the appellant stating that he would be entitled for possession of the suit property for a period of two years.

15. The present review petition has been filed for review of order dated 26.05.2016 and not for disposing of the main appeal vide order dated 07.03.2012. The grounds/contentions that have been raised by the appellant/petitioner are the developments as a consequence of the passing of the order dated 07.03.2012 in the main appeal. It is apparent from the order dated 26.05.2016 that it dealt with the application and also with CM (M) 439/2015 for additional evidence. All the grounds taken in the instant review petition and the ratio of judgments relied upon by the appellant/petitioner have already been dealt with in grave detail in the order dated 26.05.2016. Against the order dated 26.05.2016, a separate review petition 327/2016 was moved which was dismissed vide order dated 02.08.2016. Against the dismissal of the review petition, the appellant approached Hon'ble Supreme Court. Vide order dated 03.07.2017, the Hon'ble Supreme Court dismissed the appeal filed by the appellant-herein requesting this Court to ensure expeditious disposal of all the matters pending between the parties preferably within three months.

16. Argument advanced by the counsel for the appellant is that the order dated 07.03.2012 is not enforceable and the review of the said order is sought. This contention of the appellant is misconceived for the reasons that the present review petition has been filed for review of order dated 26.05.2016. The order dated 07.03.2012 has never remained under challenge. The appellant never challenged the order

dated 07.03.2012 which was apparently passed on the request of the parties granting two years time to the appellant to vacate the suit premises. But despite the said order, the appellant subsequently stopped making the payment of mesne profits what to say to comply with the order to vacate the premises after the expiry of two years.

17. Perusal of order dated 26.05.2016 shows that all the contentions of the appellant/petitioner were dealt with in detail. There is no mistake whatsoever in the order dated 07.03.2012 as none of the parties ever sought a recall. The main appeal was put to an end vide order dated 07.03.2012. During the course of arguments, counsel for the appellant/ petitioner has submitted that the order passed in CM application needs to be reviewed and allowed, to hear the arguments on merit in the main appeal. Such a contention of the appellant/petitioner does not hold ground as the main appeal has already been put to an end. No restoration/setting aside or recalling of the order dated 07.03.2012 has been made in the application bearing CM 30021/2015 or in the present review petition. It is further apparent that the present review petition has been filed after a lapse of two years whereas vide order dated 07.03.2012 upper limit of two years was granted for handing over of the possession of the suit premises.

18. The argument advanced by the counsel for the appellant/ petitioner that the review of the order dated 07.03.2012 is claimed by way of this review application, is misconceived from the record. There is no situation in which the disposed appeal that too after the

lapse of three years of benefit granted of two years vide order dated 07.03.2012 can be reviewed. It is matter of record that the appeal was disposed of on 07.03.2012 on the terms and conditions at the request of the parties.

19. From the discussion made above, it is inherently apparent that the main appeal was put to an end vide order dated 07.03.2012 by the appellant itself by stating that the appeal can be disposed of by awarding two years time for vacation of suit premises by agreeing to pay Rs.1,00,000/- per month for the first year and Rs.2,00,000/- per month for the second year. Thereafter, one review petition was moved by the appellant with the prayer seeking a hearing on merits. The hearing in the main appeal on merit could only be possible during the period when the appeal was still subsisting. When the main appeal was put to an end and disposed of and that too on the basis of the consent given by the appellant/petitioner himself, there cannot be any circumstance thereafter, in which the appeal could be heard on merit. The present review petition has been filed for review of order dated 26.05.2016 passed in application CM No.30021/2015 just to circumvent the handing over of the suit property and not to fulfill its promise to vacate the premises within two years of the order dated 07.03.2012. Neither the premises were vacated within the time stipulated with effect from two years of the order dated 07.03.2012 nor the agreed rate of mesne profits was paid. The impugned order dated 26.05.2016 passed in CM No.30021/2015 which is sought to be

reviewed is a reasoned, detailed and coherent order which does not warrant any review, whatsoever.

20. Consequently, the present review petition is without any merit and basis, merely to benefit from the unauthorized occupation of the suit premises without making any payment and to avoid the handing over of possession. Accordingly, the present review petition is dismissed.

21. All the pending applications are also disposed of.

22. The judgment being ready for pronouncement on 26.09.2017 but could not be pronounced as the Court remained non-functional due to personal illness, vacations and illness of my son and pronouncement is being done on the resuming of the Court today.

(P.S.TEJI) JUDGE OCTOBER 12, 2017 dd