Madhya Pradesh High Court
Ashok Lalwani vs State Bank Of India on 7 January, 2022
Author: Vishal Dhagat
1
The High Court Of Madhya Pradesh
RP No. 844 of 2019
(ASHOK LALWANI Vs STATE BANK OF INDIA AND OTHERS)
Jabalpur, Dated : 07-01-2022
Shri Ashok Lalwani, learned counsel for the petitioner.
Shri Ashish Shroti, learned counsel for the respondents.
Petitioner has filed this review petition making a prayer to recall
judgment dated 08.11.2017 passed in first appeal No.953/2014.
Learned counsel appearing for petitioner submitted that suit preferred
by respondent No.2 namely Balram Lalwani was decreed and trial Court
granted decree of eviction of his portion of leased premises. Mesne profits of
Rs. 25,000/- per month was also decreed. High Court has passed the
judgment without considering the application filed under Order 41 Rule 27 of
the Code of Civil Procedure in first appeal. It is further submitted that though
judgment in first appeal is in personam but said judgment is being cited as
precedent. Mesne profits which has been decreed in suit will also affect the
petitioner in his case as same premises is leased to respondent bank by
petitioner as well as respondent No.2, therefore, order may be recalled.
Learned counsel appearing for petitioner has relied on judgement
reported in AIR 2019 SC 2341 {Karuna Kansal Vs. Hemant Kansal and
Another. In said case no notice was issued to second wife and she was not
heard while passing judgment in appeal. In view of same, High Court has set
aside ex-parte decree and matter was remanded back to implead second wife
as party in the case. Relying on said case, it is argued that petitioner was not
heard and petitioner would be substantially affected by judgment and decree
ordering mesne profits, therefore, petitioner ought to have been heard in first
appeal and judgment in first appeal be recalled.
Learned counsel appearing for the respondent bank submitted that
petitioner and respondent No.2 had filed separate suit and separate judgement
and decree was passed in case of said parties. Judgment and decree passed
in case of respondent No.2 is not binding on petitioner. It is further submitted
that judgment and decree dated 08.11.2017 was passed in first appeal,
thereafter, same was challenged before Apex Court and same has also been
dismissed. In view of same, prayer is made for dismissal of review petition.
Heard the counsel for the parties.
Judgment and decree dated 08.11.2017 is not binding on petitioner as
petitioner was not a party in said case. Petitioner is having separate cause of
action and he had filed a separate suit before the Civil Court. There is no
requirement to hear the petitioner and to hold that judgment and decree
passed in suit of respondent No.2 will affect the petitioner. Mesne profits is
determined by Court in respect of a specific property based on facts and
circumstances of the case. Property of petitioner is different from that of
respondent No.2 and each case has separate cause of action and different
property was considered in judgment dated 08.11.20217 and same is also not
binding on petitioner. Judgment passed in first appeal has been affirmed by
Apex Court.
In view of aforesaid facts and circumstances of the case, there is no
merit in review petition filed by petitioner, hence, same stands dismissed.
(VISHAL DHAGAT)
JUDGE
shabana
Digitally signed by SUNIL KUMAR PATEL
Date: 2022.01.13 12:56:57 +05'30'
