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2015 DAILYLAW 3126 (DEL)

KAMLESH v. RAJINDER KUMAR AGGARWAL

2015-06-29

Valmiki J Mehta

body2015
Judgment : VALMIKI J. MEHTA, J (ORAL) Review Petition No.309/2015 (for review of the order dated 24.2.2014) & CM No. 11055/2015 (condonation of delay of 40 days) & CM No. 11057/2015(stay) 1. This review petition filed under Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (CPC), alongwith the accompanying applications for condonation of delay allegedly only of 40 days in filing the review petition, with the accompanying application for stay has been filed in the Regular Second Appeal which was disposed of on 24.2.2014 in terms of a consent order granting the appellant/review petitioner/tenant time to vacate the suit premises by 30.6.2015 i.e tomorrow. The appellant/review petitioner/tenant had filed the Regular Second Appeal against the concurrent judgments of the courts below, first being of the Civil Judge in the original suit and the second of the First Appellate Court in the first appeal under Section 96 CPC. The concurrent judgments decreed the suit for possession and mesne profits of the respondent/plaintiff/landlord against the appellant/defendant/tenant. The judgment of the Civil Judge is dated 5.5.2011 and the judgment of the First Appellate Court is dated 24.5.2013. 2. In this Regular Second Appeal, notice was issued on 9.7.2013 and after various dates the second appeal thereafter came up for hearing for admission on 24.2.2014. Counsel for the appellant argued the matter and after arguments the appeal was not pressed and the appellant as prayed was granted time to vacate the suit premises till tomorrow i.e 30.6.2015. The order dated 24.2.2014 reads as under:- “1. After arguments, the appeal and application are disposed of with the consent order that appellant will vacate the suit premises being the third floor of the property bearing No.562/37, Omkar Nagar, Tri Nagar, Delhi-110035 on or before 30.6.2015. The appellant till the end of February, 2014 will pay the mesne profits as calculated by the Courts below and from 1.3.2014 till 30.6.2015 or an earlier date of vacation will pay a sum of Rs.10,000/- per month as charges of use and occupation. Appellant will also clear all charges towards electricity and water with respect to the suit premises. 2. Let the appellant file an undertaking in this Court in terms of the present order within two weeks and on filing and complying with the terms of the undertaking appellant will not be evicted from the suit premises till 30.6.2015. 3. Appellant will also clear all charges towards electricity and water with respect to the suit premises. 2. Let the appellant file an undertaking in this Court in terms of the present order within two weeks and on filing and complying with the terms of the undertaking appellant will not be evicted from the suit premises till 30.6.2015. 3. Parties are left to bear their own costs.” 3. Pursuant to the order dated 24.2.2014, there exists on the record of this Court an undertaking of the appellant whereby the appellant undertook to vacate the suit premises by 30.6.2015 and also to pay the mesne profits payable in terms of the order dated 24.2.2014. 4. Now this review petition is filed claiming that there is a delay allegedly only of 40 days because the appellant claims that the earlier Advocate in whose presence the order was passed on 24.2.2014 only informed the appellant in May, 2015 that the appellant has to vacate the suit premises by 30.6.2015, and though the order was passed on 24.2.2014, limitation for filing review is alleged to arise only from May, 2015. By the review petition, it is argued that the signatures of the appellant on the undertaking dated 12.3.2014 are forged and fabricated and therefore there is no undertaking and hence the Regular Second Appeal be re-heard on merits. 5. Some of the litigants in this country intend to abuse the process of the law. Not only they abuse the process of the law, but they put the credibility of the judicial process to question inasmuch as, judicial process has two parties, the other being the party in whose favour the suit is denied. It is high time that a very strong and stern message should be sent to dishonest litigants such as the appellant. I am therefore dismissing the review petition with costs as per the observations made hereinafter. 6. Firstly, I do not find any valid reason for the appellant to contend that her signatures on the undertaking dated 12.3.2014 are forged and fabricated by the earlier Advocate, inasmuch as, the Advocate through whom the undertaking is filed is the same Advocate who had originally filed the Regular Second Appeal namely Sh. R.P.Sharma, Advocate. Three Advocates have filed the appeal on behalf of the appellant namely Smt. Anjali Nehra, Sh. K.C.Mittal and Sh. R.P.Sharma, Advocates. The second appeal is signed by Sh. R.P.Sharma, Advocate. Three Advocates have filed the appeal on behalf of the appellant namely Smt. Anjali Nehra, Sh. K.C.Mittal and Sh. R.P.Sharma, Advocates. The second appeal is signed by Sh. R.P.Sharma and the same Sh. R.P.Sharma has also signed the index alongwith which the undertaking was filed in this Court on 12.3.2014, and which was the undertaking in terms of the order dated 24.2.2014 to vacate the suit premises by 30.6.2015. Appellant thus is merely taking up a convenient stand of her signatures being forged and fabricated and this becomes clear from the fact that the appellant is waking up just in and around the period when the time granted to her to vacate the suit premises is coming to an end on 30.6.2015. 7. I may note that the appellant/review petitioner/tenant has deliberately not given any details as regards why she was silent from February, 2014 till the filing of this review petition on 18.6.2015 and the details of allegedly of the appellant/review petitioner/tenant being told by the Advocate only in May, 2015. Obviously, the appellant/review petitioner, who is the tenant and against whom concurrent decrees had been passed, and whose case was to be decided by a judgment on merits after arguments on 24.2.2014, however instead of a judgment, the appellant/review petitioner/tenant finding no strength in her second appeal which was required to show a substantial question of law, chose through counsel to take time to vacate the suit premises. 8. Even for the sake of arguments if we take that the signatures of the appellant/review petitioner/tenant are not appearing on the undertaking dated 12.3.2014, that cannot disturb the finality of the order dated 24.2.2014 because admittedly the counsel who appeared before this Court on 24.2.2014 and argued the matter is /was admittedly the counsel of the appellant/review petitioner/tenant in the Regular Second Appeal and who was appearing since the first date i.e. 9.7.2013 alongwith the other Advocate Sh. R.P.Sharma. R.P.Sharma. At best non-filing of the undertaking would only mean that the appellant/review petitioner/tenant could have been evicted even prior to 30.6.2015 but assuming that undertaking is not filed because allegedly it does not contain the signatures of the appellant/review petitioner/tenant cannot mean that the finality of the order dated 24.2.2014 will be taken away, because as already stated above, the appellant was duly represented by her regular advocate who in fact argued the second appeal on 24.2.2014 and in the interest of justice the appellant, after arguments, took time of more than one year and four months to vacate the suit premises. 9. Reliance placed by the counsel for the appellant/review petitioner/tenant upon the judgment of a learned Single Judge of this Court dated 9.2.2007 in C.C.P. No.69/2004 is not understood by this Court because in the said case the court had issued suo moto notice to the Advocate where in the facts of that case it was found that the Advocate had not correctly filed the legal proceedings on behalf of the plaintiff. I fail to understand as to how in any manner this judgment dated 9.2.2007 in C.C.P. No. 69/2004 etc will apply to the facts of the present case. 10. In view of the above, there is no merit in the review petition. In fact, there is no ground even for condonation of delay in filing of the review petition which is a delay not only of 40 days, but of over one year, and for which no explanation is given. Even on merits, appellant has no case for seeking rearguing of the second appeal which was argued on 24.2.2014 and instead of inviting an adverse judgment only time was taken to vacate the suit premises. 11. In the facts of the present case, though I was inclined to impose costs of Rs.1,00,000/- for dismissing the review petition, however, considering the condition of the appellant/review petitioner/tenant, this review petition is dismissed with costs of Rs.25,000/- and which costs shall be paid to the Delhi High Court Legal Aid Services Committee within six weeks from today. 12. List before the Registrar on 19.8.2015 to ensure that the costs are deposited, and if costs are not deposited, Registrar will be entitled to recover the costs as arrears of land revenue from the appellant and thereafter deposit the same with the Delhi High Court Legal Aid Services Committee. 13. 12. List before the Registrar on 19.8.2015 to ensure that the costs are deposited, and if costs are not deposited, Registrar will be entitled to recover the costs as arrears of land revenue from the appellant and thereafter deposit the same with the Delhi High Court Legal Aid Services Committee. 13. Dismissed.