Alok Kalia vs Charu Agrawal
2024 Latest Caselaw 6473 Del

Delhi High Court

Alok Kalia vs Charu Agrawal on 27 September, 2024

Bench: Prathiba M. Singh, Amit Sharma

                          $~21
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                      Date of decision:-27th September, 2024.
                          +    FAO(OS) 48/2023, CM APPL. 18126/2023, CM APPL. 10326/2024
                               & CM APPL. 50614/2024
                               ALOK KALIA                                  .....Appellant
                                              Through: Mr. Rajshekhar Rao, Senior Advocate,
                                                        Mr. Anirudh Bakhru, Advocate, Mr.
                                                        Raghav Bhatia, Advocate and Mr.
                                                        Agnish Aditya, Advocate.
                                              versus
                               CHARU AGRAWAL                               .....Respondent
                                              Through: Mr. Manish Mohan, CGSC, Mr. Jatin
                                                        Teotia Adv., Mr. Samarth Talesara
                                                        Adv., Dr. Pradeep Kumar Pandey
                                                        (ASA), Mr. Jitender Kumar Chandela,
                                                        Advs.
                               CORAM:
                               JUSTICE PRATHIBA M. SINGH
                               JUSTICE AMIT SHARMA

                          Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode. CM APPL. 10326/2024 (for delay in filing rejoinder)

2. This is an application filed by the Appellant under Section 151 of CPC seeking condonation of delay of 30 days in filing the rejoinder to the reply filed on behalf of Respondent no. 1, in application being CM Appl. 18126/203 seeking stay of impugned order dated 1st March, 2023, in the instant appeal.

3. For the reasons stated in the present application, the delay is condoned. Application is disposed of.

CM APPL. 50614/2024 (u/O XXII Rule 3 r/w Section 151 CPC)

4. This is an application filed under Order XXII Rule 3 read with Section 151 of the CPC seeking directions to substitute the Appellant - Late Mr. Alok

Kalia with his wife- Mrs. Pooja Kalia in the captioned proceedings before this Court.

5. The Appellant-Late Mr. Alok Kalia is stated to have passed away on 2nd July, 2024. It is alleged that the Appellant is survived by 3 legal heirs, namely, Mrs. Pooja Kalia, Mr. Rijul Kalia and Mr. Lovish Kalia, who are his wife and children, respectively.

6. It is also stated that the deceased Appellant had left behind a registered Will dated 29th December, 2021. As per the said Will, it is alleged that the deceased Appellant has bequeathed all his assets including the suit property being A - 268, Shivalik, Malviya Nagar, Delhi - 110017 to his wife, Mrs. Pooja Kalia. The deceased Appellant is also stated to have executed a nomination form in favour of his wife on 19th February, 2021, which is stated to have been furnished to the Secretary, Rehabilitation Ministry, Employees Co-op House Bldg Society Ltd. Pocket - A, Shivalik, New Delhi - 17.

7. Considering the above, name of the wife of deceased Appellant-Late Mr. Alok Kalia, i.e., Mrs. Pooja Kalia is permitted to be substituted in place of Late Mr. Alok Kalia as Appellant in the present appeal.

8. Let the affidavits of the two children of the Late Mr. Alok Kalia, qua their non-objection to substitution by Mrs. Pooja Kalia be filed in the suit. Subject to the same being filed, the wife of Late Mr. Alok Kalia, i.e., Smt. Pooja Kalia is permitted to pursue the present appeal in place of her deceased husband.

9. The application is allowed in above terms and the same is accordingly disposed of.

FAO(OS) 48/2023 & CM APPL.18126/2023

10. The instant appeal under Section 10(1) of the Delhi High Court Act,

1996 arises out of the impugned order dated 1st March, 2023, by which the ld. Single Judge had dismissed the Chamber Appeal being O.A. 9/2023 filed by the Appellant, who is Defendant No.1 in the suit being CS(OS) No. 214/2022. By virtue of the impugned order, the order of the ld. Joint Registrar dated 6th January, 2023 was upheld. Vide the said order, the ld. Joint Registrar had taken off the record, the written statement and the affidavit of admission/denial filed by the Appellant.

11. The present appeal was initially being heard along with the writ petitions being W. P. (C ) 15091/2023 and W.P. (C ) 15124/2023 which had challenged the constitutional validity of Rule 4 of Chapter VII of the Delhi High Court (Original Side) Rules, 2018 (hereinafter 'DHC Original Side Rules'). The said issue was adjudicated by the Co-ordinate Bench of this Court and vide judgment dated 23rd August, 2024 titled as Manhar Sabharwal v. High Court of Delhi & Ors. (2024:DHC:6406), the said Rule has been upheld. The present appeal is therefore to be considered on merits.

12. However, today, at the outset, a preliminary objection has been raised by the ld. Counsel appearing for the Respondent (i.e., Plaintiff in the main suit CS(OS) No. 214/2022), as to the maintainability of the instant appeal.

13. Mr. Mohan, ld. Counsel for the Respondent has placed reliance on the decision of another Co-ordinate Bench of this Court titled as D & H India Ltd. v. Superon Schweisstechnik India Ltd., (2020:DHC:1726-DB), wherein this Court has held that an appeal to the Division Bench against an order of the Single Judge deciding a Chamber Appeal would be barred in lieu of Section 100A of CPC. Section 100A is reproduced hereunder:

"100A. No further appeal in certain cases.-- Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge."

14. The relevant observations of the Division Bench in the said judgement- D & H India Ltd. (supra) qua maintainability of appeal against the order deciding a Chamber Appeal are quoted hereunder:

45. It is not, ordinarily, permissible for the court to term an expression used in a legislative instrument - even if the legislation is subordinate in nature - as a "misnomer". Courts can neither legislate, nor regard legislation as having been loosely drafted. The 1967 Original Side Rules were drafted in exercise of the powers vested by Section 122 of the CPC and were entitled, therefore, to be accorded due sanctity. If, therefore, Rule 4 in Chapter II of the 1967 Original Side Rules referred to an appeal, against the order of the Registrar, to the learned Single Judge, in our view, the jurisdiction, exercised by the learned Single Judge, could not but be regarded as appellate. Treating the said jurisdiction as original in nature, and as a mere exercise of "review", or "re-examination", by the learned Single Judge, of the decision of his delegate, in our view, does violence to the scheme of Rules 3 and 4 in Chapter II of the 1967 Original Side Rules.

[...]

47. Firstly, as already noticed by us hereinabove, Rule 5 in Chapter II of the 2018 Original Side Rules, with which we are concerned in the present case, provides, once again, for an "appeal" against the order of the

Registrar, passed under Rule 3. With the enactment of Rule 5 in Chapter II of the 2018 Original Side Rules, in our considered opinion, the view expressed in Rahul Gupta can no longer be followed, for the simple reason that, if it were to be followed, it would imply that the legislators of the 2018 Original Side Rules once again employed, in Rule 5 of Chapter II therein, the "misnomer" of appeal. If it is difficult to presume that the legislature erred once, it is impossible to presume that the legislature erred twice over. The framers of the 2018 Original Side Rules must be deemed to have been cognizant of the view expressed in Rahul Gupta (See Sakal Deep Sahai Srivastava v. U.O.I.). Were, as the Division Bench in Rahul Gupta held, the reference to an "appeal", in Rule 4 in Chapter II of the 1967 Original Side Rules, a misnomer, it is reasonable to expect that the "misnomer" would not be repeated, once again, in Rule 5 in Chapter II of the 2018 Original Side Rules. The fact that Rule 5, in Chapter II of the 2018 Original Side Rules is a verbatim reproduction of Rule 4 in Chapter II of the 1967 Original Side Rules, in our view, indicates that the use of the word "appeal", in the said Rule, is certainly not a misnomer. We, therefore, are clearly of the opinion that the jurisdiction, exercised by the learned Single Judge, under Rule 5 in Chapter II of the 2018 Original Side Rules, was appellate in nature, as is expressly stated in the said Rule, and that the use of the word "appeal" in Rule 5 of Chapter II of the 2018 Original Side Rules cannot be regarded as a misnomer.

15. As is clear from the above quoted observations, while deciding this issue of maintainability, the Division Bench in D&H India Ltd. (supra) did not agree with the view taken by an earlier Division Bench in Rahul Gupta v. Pratap Singh & Anr., (2013:DHC:6070-DB). In Rahul Gupta (supra), the Division Bench had come to the conclusion that a Chamber Appeal is really

not an appeal in the real sense, since the Joint Registrar passes orders in exercise of delegated powers vested originally in the Single Judge. The observations of the Court therein are as under:

"21. [...] Applying the ratio of the aforesaid judgment of the Supreme Court in Roop Chand v. State of Punjab (supra), it follows that the order of the Registrar under Rule 3 of the O.S. Rules is an order of the court exercising Original Jurisdiction (and not of the Registrar, who merely acts as a delegate). Viewed in this context, any appeal from the order of the Registrar to a Single Judge would, in effect, amount to the principal examining an order which is passed by his delegate in exercise of the powers which are originally vested with the principal. There is a complete identity of the powers exercised by the Registrar in matters specified in Rule 3 of Chapter II of the O.S. Rules and the jurisdiction vested with the Single Judge.

22. As. an ordinary rule, delegation of powers or functions by an authority or a person to another authority does not imply that the said principal authority is completely denuded of its power. This is so, because the delegate in exercise of the delegated powers acts as a principal. Thus, while the delegate can exercise the power, the principal too can exercise the same power unless there is any specific statutory provision which bars the same. The Supreme Court in the case of Godawari S. Parulekar v. State of Maharashtra, AIR 1966 SC 1404 also expressed a similar view and cited the following passage, from Huth v. Clarke: 25 Q.B.D. 391, with approval:--

"Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would

have to do himself."

23. In view of the above, would it be correct to consider an appeal under Rule 4 of the said Rules as an appeal in the true sense? In our view, the answer to the said question would be in the negative. This is so because an authority cannot sit in appeal against an order which has been passed in exercise of its jurisdiction, albeit by its delegate. At best the power exercised by the Single Judge under Rule 4 of the O.S. Rules is a power to review and re-examine orders passed by the Registrar. We accept the contention that the expression appeal in Rule 4 of the O.S. Rules is a misnomer as an appeal under Rule 4 of chapter II of the O.S. Rules, could certainly not be considered as an appeal but a mere re-

examination/review of the order passed by the Registrar. We are persuaded by the decision of a Division Bench of the Madras High Court in Sreyas Sripal v. Upasana Finance Ltd. (supra), whereby, on the basis of similar reasoning, that Court has also concluded that the court did not exercise powers of appeal, against an order of a Master, under Order XIV Rule 12 of the Madras High Court Original Side Rules. Accordingly, the bar under Section 100A of the Code was not applicable and appeals before a Division Bench, against an orders passed by Single Judges, were maintainable. The relevant extract of the said judgement is quoted below:--

"8. Applying the same logic, this Court cannot exercise the power of appeal or revision against the order of the Master, which is passed by him in the capacity as a delegate of the High Court. It is well settled that ordinarily an appeal would lie from a lower Authority to the higher Authority and an order passed by the delegate is in exercise of powers given by the delegator and such an order is not appealable or revisable.

Therefore, we are inclined to accept the contention of the learned Senior Counsel Mr. Yashod Vardhan that the word appeal in Order XIV Rule 12 is a misnomer, but it is actually a power of review of this Court. Therefore, such an order passed by the Master is not appealable or revisable by the learned Judge under Rule 12. The power conferred under Rule 12 is really in the nature of power of revision. Consequently, the bar under Section 100A of the Code of Civil Procedure is not attracted and the appeals are perfectly maintainable."

[...]

27. It is necessary to consider that the scheme and the provisions of the O.S. Rules relate to the exercise of original jurisdiction. The O.S. Rules have been framed in respect of the practice and procedure for the exercise of the ordinary original civil jurisdiction, as is made explicit in the Preamble to the said Rules. The heading of Chapter II of the O.S. Rules is "exercise of original civil jurisdiction". The same also indicates that the Rules contained in Chapter II of the O.S. Rules relate to exercise of original civil jurisdiction. If the entire scheme of the O.S. Rules is considered in the perspective that it relates to exercise of ordinary original civil jurisdiction, then it would be apparent that a Single Judge exercises ordinary original civil jurisdiction even while considering a challenge under Rule 4 of Chapter II of the said Rules. In this view of the matter, an appeal under Section 10 of the Act from a judgment of a Single Judge would lie to a Division Bench of this Court. Section 100A of the Code would not be applicable as the powers exercised by a Single Judge under Rule 4 of Chapter II of the O.S. Rules cannot be termed as appellate powers and the expression 'appeal' in Rule 4 of Chapter II of the O.S. Rules is a misterm."

16. Therefore, as per Rahul Gupta (supra) the order passed by the Single Judge deciding the Chamber Appeal in exercise of powers under Rule 5 of Chapter II of DHC Original Side Rules is in the nature of a review or a recall, and is not an appeal. The said rule is extracted herein under:

"5. Appeal against the Registrar's orders.-Any person aggrieved by any order made by the Registrar, under Rule 3 of this Chapter, may, within fifteen days of such order, appeal against the same to the Judge in Chambers. The appeal shall be in the form of a petition bearing court fees of Rs.2.65"

17. It is pointed out by the ld. Counsels that the judgment in D & H India Ltd. has been thereafter considered by a Division Bench of this Court in Odeon Builders Pvt. Ltd. vs. NBCC (India) Ltd, (2021:DHC:2822-DB). However, it is argued by the ld. Counsel for the Respondent that the said consideration is primarily in respect of maintainability of appeals under Section 13 of the Commercial Courts Act, and the issue as to the nature of an order passed in a chamber appeal and whether such an order is appealable, was not subject matter in the said judgement.

18. In view of the above discussion, it is observed that in a large number of matters, the nature of order passed by ld. Single Judge in a Chamber Appeal in terms of Chapter II, Rule 5 of DHC Original Side Rules would arise. Further, the question as to whether an Appeal against such order by the ld. Single Judge would be maintainable before a Division Bench in light of Section 100A of CPC would also arise. Accordingly, this Court deems it appropriate to direct that the present matter be placed before Hon'ble the Acting Chief Justice of this Court for constituting an appropriate larger Bench

to decide the aforesaid issues.

19. List before Hon'ble the Acting Chief Justice on 21st October, 2024.

20. The proceedings in the concerned suit shall remain stayed till the next dated of hearing.

PRATHIBA M. SINGH JUDGE

AMIT SHARMA JUDGE SEPTEMBER 27, 2024 Rahul/MS/Pc