Delhi High Court
Virender Singh vs Satyendra Singh on 10 April, 2019
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 10th April, 2019
+ RFA(OS) 25/2019
VIRENDER SINGH ..... Appellant
Through: Mr. Yusuf Khan, Advocate with
appellant in person.
versus
SATYENDRA SINGH ..... Respondent
Through: Mr. Manish Tanwar, Advocate with
respondent in person.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
C.M. Appl. No. 12540/2019 (for delay)
1. This is an application seeking condonation of delay of 246 days
in filing the appeal.
2. Learned counsel for the respondent enters appearance.
3. The prayer made in this application is not opposed.
4. The delay of 246 days in filing the appeal is therefore
condoned.
C.M. stands disposed of.
RFA(OS) 25/2019 and C.M. Appl. No.12538/2019 (for stay)
5. The challenge in this appeal is to the order dated 5 th March,
2018 by which the final decree of partition has been passed. Challenge is
also being made to the order dated 22nd October, 2018 by an application
seeking clarification/modification of the order of 5 th March, 2018 was
dismissed by the learned Single Judge of this Court.
6. The brief facts to be noticed for the disposal of the appeal are
that the plaintiff (appellant herein), had filed a suit for partition with respect
to property bearing no. K-6, Rangpuri Road, Mahipalpur, New Delhi-
110037, situated on a plot of land measuring 492.34 sq. yards. A consent
order was passed on 5th March, 2018. Parties had agreed that portion „A‟
would fall to the share of the plaintiff and portion „B‟ would fall to the share
of the defendant. Additionally, it was agreed that the plaintiff would pay a
sum of Rs.20,00,000/- to the defendant for an area in excess.
7. Subsequently, the plaintiff filed I.A. No. 10347/2018 seeking
modification of the order with respect to payment of Rs.20,00,000/- by the
appellant/plaintiff to the defendant. This application was rejected primarily
on the ground that the order in question was a consent order and merely by
change of Advocate, the order could not be modified and more so the orders
obtained by making statements cannot be changed from time to time as there
would be no end to litigation.
8. The main crux of argument of learned counsel for the appellant
is that the appellant/plaintiff had offered to pay Rs.20,00,000/- on the
assumption that he was getting excess area and to compensate for the excess
area he had agreed to pay Rs.20,00,000/- to the respondent/defendant.
However, the area is not in excess and thus the respondent/defendant would
not be entitled to Rs.20,00,000/-.
9. Per contra, counsel for the respondent submits that there is no
infirmity either in the order passed on 5th March, 2018, which is a consent
order, or the order dated 22nd October, 2018. He submits that the parties
were present all along and the statement was made after understanding and
ascertaining the factual position.
10. We have heard learned counsels for the parties.
11. Since the order dated 5th March, 2018 is a short order, we deem
it appropriate to reproduce the same:-
"1. Counsels for the parties have been heard. Parties are also present in
person and they also have been heard.
2. After submissions were made it is agreed that and accordingly the
suit is disposed of by passing a final decree with respect to the
property bearing no.K-6, Rangpuri Road, Mahipalpur, New Delhi-
110037 situated on a plot of 492.34 sq yds by giving to the plaintiff
Sh. Virendra Singh the portion Mark „A‟ as per the report and plans
filed on 17.5.2017. Portion „B‟ will go the defendant Sh. Satyendra
Singh in the suit with a payment of Rs.20 lacs to be made by the
plaintiff to the defendant in view of the fact that portion „A‟ contains a
larger area than portion „B‟.
3. I may note that for equalization principle called as owelty under
Order 26 Rule 14 of Code of Civil Procedure, 1908 (CPC) entitles
payment of amount by one party to the other for equalization of
shares. This amount of Rs.20 lacs will be paid by the plaintiff to the
defendant within four months. If the amount of Rs.20 lacs is not paid
within four months, then, after expiry of four months the amount of
Rs.20 lacs will carry interest @ 12% per annum simple and execution
proceedings can be initiated by the defendant for recovery of such
amount. On payment of amount of Rs.20 lacs by the plaintiff to the
defendant, the rights of the parties will stand crystallized in terms of
the Local Commissioner‟s report dated 17.5.2017 alongwith the
accompanying plans and the portions „A‟ and „B‟ as per the plans and
as already stated above.
4. Final decree is accordingly drawn up in terms of aforesaid order. Of
course, final decree will be drawn up on the parties complying with
payment of stamp duty as required by Article 45 of Schedule I of the
Stamp Act, 1899.
5. Suit is accordingly disposed of and a final decree is accordingly
passed with respect to property bearing no.K-6, Rangpuri Road,
Mahipalpur, New Delhi-110037 as stated above in terms of aforesaid
observations."
12. A reading of this order would show that the order is a consent
order. The presence of the appellant/plaintiff is also recorded in the order.
Based on the statement made, the aforesaid order was passed.
13. At this stage to say that the appellant was not aware of the area
being in excess cannot be accepted or cannot be a ground to modify or set
aside the order passed by the consent of the parties.
14. We find no infirmity in the view taken by the learned Single
Judge in his order on 22nd October, 2018, for the reason that simply stating
that the appellant herein was not aware of the area being the same or in
excess, cannot be a ground to seek modification of the consent order, which
was passed in the presence of the parties.
15. We find no grounds to entertain this appeal. The appeal and
C.M. Appl. No.12538/2019 is accordingly dismissed.
G.S.SISTANI, J
JYOTI SINGH, J
APRIL 10, 2019/AK
