Back
1995 Supreme(Del) 138
High Court Of Delhi
SUNIL PURI - Appellant
Versus
MODI SPINNING AND WEAVING MILLS COMPANY LIMITED - Respondent
Regular 17 of 1993
Decided On : 02/07/1995
R.L.TANDON, RAJIV NAYAR, Ravinder Sethi, V.K.Makhija, VIJAY GUPTA
Objections filed after the expiry of the period of limited tenancy cannot be entertained.
Headnote:
REVIEW APPLICATION - [SECTION 114, ORDER IXVII, RULE 1, SECTION 151 OF CODE OF CIVIL PROCEDURE] - APPLICATION FOR REVIEW OF JUDGMENT - OBJECTION RAISED BY NON-APPLICANT THAT APPLICATION IS AN ABUSE OF PROCESS OF COURT - APPLICATION FILED AFTER RETIREMENT OF JUDGE WHO PASSED JUDGMENT - EXPLANATION FOR NOT POINTING OUT REMAINING POINTS TO COURT DURING DICTATION OF JUDGMENT NOT SUFFICIENT - REVIEW APPLICATION FILED ON MERITS - ARGUMENTS ON NATURE AND SCOPE OF POWER OF REVIEW UNDER ORDER 47 CIVIL PROCEDURE CODE - NO GAP BETWEEN ALLOWING REVIEW AND EMBARKING UPON THIRD STAGE OF CONSIDERING REVIEW ON MERITS - TWO STAGES CAN BE COMBINED TOGETHER FOR PURPOSE OF DISPOSAL OF REVIEW APPLICATION.
Fact of the Case:
The appellants, owners/landlords of property No. 12, Friends Colony (West), New Delhi, let out the premises to M/s. Modi Spinning and Weaving Mills Company Limited for a period of five years four months by means of an application filed before the Rent Controller under Section 21 of the Delhi Rent Control Act (for short the Act) on 16.8.1977. The application was granted on 17.8.1977 and the lease deed was executed between the parties on 18.8.1977 and registered on 29.8.1977. After the expiry of the period of limited tenancy, the owners/landlords moved a second application, i.e. execution application seeking possession of the premises in terms of the order under Section 21 of the Act. The respondent-Company instead of vacating the premises filed objections to the execution through its Managing Director Mr. Yogendra K. Modi on 4/05/1984. The objections found favour with the Additional Rent Controller as well as the Rent Control Tribunal. Therefore, the present second appeal was filed by the owners/landlords. The appeal was allowed by the learned Single Judge of this Court on 10/03/1993. The respondent has sought review of the said judgment through the present application.
Finding of the Court:
1. The objection that the review application is an abuse of the process of the Court and has been filed knowing fully well that the Hon'ble Judge who decided the matter had retired is rejected. The explanation for not pointing out to the Court the points which remained to be noticed in the judgment according to the petitioner is not sufficient enough. 2. The arguments on the nature and scope of the power of review under Order 47 Civil Procedure Code are not necessary to be considered at this stage. 3. The two stages of allowing review and embarking upon the third stage of considering the review on merits can be combined together for the purpose of disposal of a review application. 4. The first point enumerated in the review application, that the Company was not the judgment debtor at the relevant time and, therefore, the question of filing of objections within the subsistence of the period of lease did not arise, is wholly misconceived and without any merit or substance. The judgment sought to be reviewed contains various details which clearly demonstrate that the said objection is wholly misconceived and is without any merit or substance. 5. The second point on which review is sought is based on the following lines occurring at the end of para 17 of the judgment in Shrisht Dhawan's case reported in JT 1991 (5) S.C. 378 "but since law was not so clear when the objection was decided by the Controller it is appropriate to examine if the finding on merits is sustainable". On the basis of these lines it is urged that inspite of holding that the objections filed for the first time at the time of execution based on fraud or collusion unless the tenant is able to establish that it was not known to him and he came to know of it for the first time only at the time of execution, cannot be entertained, the Supreme Court went on to examine the objections on merits in view of the fact that law was not so clear when the objections were decided by the Controller. This argument gives rise to some questions: (I) Can on the basis of the said observation in Shrisht Dhawan's case it be said as a matter of law that in all cases belonging to the relevant period objections even if filed after the expiry of period of lease should be considered on merits? (ii) If this point has been otherwise dealt with in the judgment though not in so many words as suggested by the applicant, must review be allowed? (iii) Assuming that there is an exception to the rule that objections if filed after the expiry of period of lease cannot be entertained, this will be only when the objector is able to show that the fraud or collusion was not known to him earlier and he came to know of it subsequently. Can the applicant objector without claiming to be covered on facts under the exception, seek to take the benefit of the afore-quoted lines occurring in Shrisht Dhawan's case? 6. The applicant objector must fail on each ground and review must be rejected.
Issues: 1. Whether the review application is an abuse of the process of the Court? 2. Whether the two stages of allowing review and embarking upon the third stage of considering the review on merits can be combined together for the purpose of disposal of a review application? 3. Whether the first point enumerated in the review application, that the Company was not the judgment debtor at the relevant time and, therefore, the question of filing of objections within the subsistence of the period of lease did not arise, is wholly misconceived and without any merit or substance? 4. Whether the second point on which review is sought is based on the following lines occurring at the end of para 17 of the judgment in Shrisht Dhawan's case reported in JT 1991 (5) S.C. 378 "but since law was not so clear when the objection was decided by the Controller it is appropriate to examine if the finding on merits is sustainable"? 5. Whether the applicant objector must fail on each ground and review must be rejected?
Ratio Decidendi: 1. The explanation for not pointing out to the Court the points which remained to be noticed in the judgment according to the petitioner is not sufficient enough. 2. The two stages of allowing review and embarking upon the third stage of considering the review on merits can be combined together for the purpose of disposal of a review application. 3. The first point enumerated in the review application, that the Company was not the judgment debtor at the relevant time and, therefore, the question of filing of objections within the subsistence of the period of lease did not arise, is wholly misconceived and without any merit or substance. 4. The second point on which review is sought is based on the following lines occurring at the end of para 17 of the judgment in Shrisht Dhawan's case reported in JT 1991 (5) S.C. 378 "but since law was not so clear when the objection was decided by the Controller it is appropriate to examine if the finding on merits is sustainable". On the basis of these lines it is urged that inspite of holding that the objections filed for the first time at the time of execution based on fraud or collusion unless the tenant is able to establish that it was not known to him and he came to know of it for the first time only at the time of execution, cannot be entertained, the Supreme Court went on to examine the objections on merits in view of the fact that law was not so clear when the objections were decided by the Controller. This argument gives rise to some questions: (I) Can on the basis of the said observation in Shrisht Dhawan's case it be said as a matter of law that in all cases belonging to the relevant period objections even if filed after the expiry of period of lease should be considered on merits? (ii) If this point has been otherwise dealt with in the judgment though not in so many words as suggested by the applicant, must review be allowed? (iii) Assuming that there is an exception to the rule that objections if filed after the expiry of period of lease cannot be entertained, this will be only when the objector is able to show that the fraud or collusion was not known to him earlier and he came to know of it subsequently. Can the applicant objector without claiming to be covered on facts under the exception, seek to take the benefit of the afore-quoted lines occurring in Shrisht Dhawan's case? 5. The applicant objector must fail on each ground and review must be rejected.
Final Decision: The review application is dismissed with costs quantified at Rs. 10,000.00.
( 1 ) THIS is a review application under Section 114 read withorder IXVII, Rule 1 and Section 151 of Code of Civil Procedure. The applicationseeks review of the judgment dated 10/03/1993 delivered by Hon ble Ms. Justice Santosh Duggal. The application was filed on 17/04/1993, i. e. after theretirement of the learned Single Judge who had passed the judgment.
( 2 ). An objection has been raised on behalf of the appellant/non-applicant thatthe application is an abuse of the process of the Court and has been filed knowingfully well that the Hon ble Judge who decided the matter had retired. Thejudgment was dictated in open Court and if the applicant/respondent had anygrievance the same could have been pointed out to the Court then and there ratherthan moving the present application after the learned Judge had retired on20. 3. 1993.
( 3 ). In reply to this objection it has been submitted on behalf of the applicant thatthe applicant tried to obtain copy of the order after the same had been dictated inopen Court by way of inspection of the Court file. However, the file was not madeavailable till the date of the retirement of the learned Judge. Therefore, the application could not be filed earlier. Regarding failure to point out the points whichaccording to the applicant remained unnoticed while the judgment was beingdictated in open Court the reply is that the main Counsel who had argued thematter was not available and the junior Counsel who was present in Court whenthe judgment was being dictated did not consider it proper to disturb the learnedjudge during dictation. It may be possible that the Court file was not madeavailable to the applicant for inspection as stated by the applicant in the rejoinder3 filed to the reply of the non-applicant but the explanation for not pointing out tothe Court the points which remained to be noticed in the judgment according to thepetitioner is not sufficient enough. Immediately after the dictation was over suchpoints could have been brought to the notice of the Court. The learned Judgeretired on 20/03/1993 i. e. ten days after the dictation of the judgment in opencourt and as per the case of the applicant the file remained in Court all throughout. The Counsel for the applicant could always mention the matter in Court and pointout the points which according to the applicant remained unnoticed or called forreview of the said judgment. I do not want to go further into this controversy sincei have proceeded to consider the points raised on behalf of applicant in the presentapplication on merits.
( 4 ). I do not consider it necessary to refer to or dilate upon the arguments onbehalf of the applicant regarding nature and scope of the power of review underorder 47 Civil Procedure Code I may only note ththe submission on behalf of the learned Counselfor the applicant that at this stage I have only to consider whether to allow reviewof the judgment or not and if I allow review I will have to enter the third stage ofhearing of the review application on merits to the extent review of the judgmentdated 10/03/1993 is allowed. However, during the course of hearing thelearned Counsel for the applicant conceded that it is not necessary to have a gapbetween allowing review and embarking upon the third stage of considering thereview on merits. He agreed that the two stages can be combined together forpurpose of disposal of a review application.
( 5 ). In order to appreciate the points involved in the present petition it isnecessary to give certain basic facts. The appellants in the appeal are the owners/landlords of property No. 12, Friends Colony (West), New Delhi. The premiseswas let out to M/s. Modi Spinning and Weaving Mills Company Limited for aperiod of five years four months by means of an application filed before the Rentcontroller under Section 21 of the Delhi Rent Control act (for short the Act) on16. 8. 1977. The application came up before the Additional Rent Controller on17. 8. 1977
