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Basant Kaur Anand & Others Joginder Singh Chhabra & Others v.

Basant Kaur Anand & Others Joginder Singh Chhabra & Others
v.

(High Court Of Delhi)

Civil Miscellaneous (Main) No. 337 of 2007 & Civil Miscellaneous Appeal No. 3519 of 2007 | 28-03-2007


J.M. Malik, J.

1. In this petition the petitioners have called into question the order dated 25th August, 2006 as also the order dated 17th February, 2007, whereby the review application was dismissed. On 25th August, 2006, the advocate of the plaintiff (respondent No.5 herein) was present with the plaintiff. The plaintiff made a statement that he had transferred his interest in property No. 6 Cavalry Lane, Mall Road, Delhi - 07, including the portion for which the present suit had been filed, to four persons. Counsel for the plaintiff sought permission to withdraw his vakalatnama on behalf of the plaintiff. He also filed an application under Order 22 Rule 10 read with Section 151 CPC. It is surprising to note that the application was allowed instantaneously in the absence of the other party, without waiting for it. The amended memo of parties was directed to be filed. Thereafter, at the foot of the order-sheet it was also mentioned that at that stage, i.e. after passing of the crucial order, defendant No.2 (petitioner No.2 herein) appeared in person and filed documents with a spare set for plaintiff. The case was adjourned to 2.00 P.M. on the same day. At 2.00 PM, it was noted that amended memo of parties was not filed and the case was adjourned for further proceedings to 21.8.2006.

2. It is difficult to fathom as to how the application under Order 22 Rule 10 r/w Section 151 CPC was permitted without notice to the opposite party. It is also apparent that the case was called before lunch. If the defendants did not appear or their counsel did not appear before lunch, it was the duty of the learned trial court to wait for the other party even during the second session, particularly when the case was to be taken up at 2.00 PM.

3. Aggrieved by the order dated 25th August, 2006, a review application was filed. The order-sheet dated 17.2.2007 reveals that the arguments on review application under Order 47 read with Sections 114 and 115 CPC were heard. Counsel for the defendant No.2 cited the authorities reported in AIR 2003 Calcutta 284, AIR 2000 SC 85, JT 1995 (I) SC 273 and (2001) 10 SCC 715. The learned trial court held that the application for review was barred by limitation. An oral application for condonation of delay was rejected and the review application was also dismissed.

4. Learned counsel for the petitioners pointed out that due to passing of the above said order, a great prejudice has been caused to the petitioners and in support of his case, he has cited an authority reported in Hukam Chand v. Om Chand, (2001) 10 SCC 715. On the other hand, counsel for the respondents contended that no prejudice has been caused to the petitioners. I refrain from deciding this question because this question shall, first of all, be decided by the trial court. Without finding on this point coming from the trial court, this Court must refrain from speaking its piece on this matter.

5. The attention of the Court was drawn towards the fact that the impugned order was passed on 25.8.2006. The petitioners moved an application for obtaining the certified copy on 31.8.2006. He was supplied with the certified copy on 7.9.2006. The application for review was filed on 28.9.2006. The said review application was filed well within the limitation period. The learned trial judge did not give reason as to why he had come to the conclusion that the application was barred by time. However, counsel for the respondents vehemently argued that the review application must be filed within 30 days and there was no provision that the time for obtaining the certified copy is to be excluded while computing the period of limitation.

6. I am of the considered view that the assumption of the counsel for respondents is all wet. The learned counsel for the petitioners has cited a Privy Council authority reported in Jijibhoy N. Surty v. T.S. Chettyar, AIR 1928 Privy Council 203 which goes to support this view.

Further, Section 12 of the Limitation Act reads as under:

"(1) xxxxxxxx

(2)In computing the period of limitation for an appeal or an application for leave to appeal, or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

(3)Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal form a decree or order, the time requisite for obtaining a copy of the judgment [on which the decree or order is founded] shall also be excluded."

7. I have also come across a few authorities which may be referred as hereunder. In Lata Kumari v. Vilas, AIR 1989 SC 1477, it was held that there is no requirement of giving any explanation for condoning delay in application for the certified copy. It is well settled that an erroneous decision refusing to apply the section can be corrected under Article 227 of the Constitution.

8. In India House v. Kishan V. Lalwani, I (2003) SLT 155 : 2003 I AD (SC) 522 : (2003) 9 SCC 393, it was held that Section 12 does not require any prayer or application by a party for exclusion of time in obtaining copies, as such exclusion is made imperative by the section itself and it is the duty of the Court to exclude such time. It is a statutory obligation of the Court to extend the benefit of this section where available, for which no application is required.

9. Moreover, the learned trial court also committed an error by not giving an opportunity to the petitioners to move an application for condonation of delay, which was not there. It is the duty of the court to provide an opportunity, which may or may not be availed, to do the needful.

10. For all these reasons, the orders dated 25th August, 2006 and 17th February, 2007, passed by the trial court are set aside. The trial court is directed to give an opportunity to the petitioners to file a reply to the application moved by the transferors/original plaintiffs under Order 22 Rule 10 read with Section 151 CPC and decide the said application on merits.

11. CM(M) 337/2007 and CM 3519/2007 are disposed of.

12. Trial Court record and copy of this judgment be sent to the trial court forthwith. Parties are directed to appear before the trial court on 16th April, 2007.

C.Ms. disposed of.

Advocates List

For the Petitioners Chetan Sharma, Senior Advocate with Sanjeev Kumar Tewari, Advocate. For the Respondents R1 to R4, Ravi Gupta, Ankit Jain, Advocates.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE J.M. MALIK

Eq Citation

LQ 2007 HC 7640