JUDGMENT :

Anup Jairam Bhambhani, J.

CM No. 10772/2017

1. As the appeal is barred by limitation, the appellant has filed an application praying for condonation of delay of 382 days. In the application it is stated that the appellant had filed Review Application RA No. 146/2016 seeking review of order dated 28th January, 2016. This review application was disposed of by the single Judge vide order dated 17th February, 2017 as having been withdrawn with liberty to file an appeal against the impugned order. Referring to the decision of a single Judge of this Court in Sita Kashyap and Another vs. Harbans Kashyap and Others, (2011) 183 DLT 47, the review order observes as under:-

"6. Admittedly, this judgment which is relied upon in the case of Sita Kashyap was not cited before this Court when the order was passed on 28.1.2016 dismissing I.A. No. 22524/2004. That a judgment is 'erroneous' has two connotations. One aspect is that the judgment is 'erroneous' for being challenged in appeal and thus for being set aside, and the second connotation is that the judgment is 'erroneous' for the purpose of allowing of a review petition. In my opinion, since the judgment in Sita Kashyap was not cited before this Court when this Court passed the order dated 28.1.2016 dismissing I.A. No. 22524/2014, this review petition effectively is for re-arguing the case and with respect to which relief was declined by a speaking order dated 28.1.2016 giving reasons that no evidence was led to prove mesne profits and plaintiff had not sought framing of issues on mesne profits. The reasons given in the order dated 28.1.2016 are one possible and plausible view, and it is not as if this view taken is ex-facie illegal, more so because the judgment in Sita Kashyap case was not cited before this Court.

"7. Plaintiff, therefore, may possibly have a good case for challenging in appeal the order dated 28.1.2016 dismissing I.A. No. 22524/2014 declining the award of mesne profits, however, there is no error which is apparent on the face of record for allowing of a review petition because reasons are given in terms of the order dated 28.1.2016 to decline grant of mesne profits and which reasons given cannot be said to be erroneous on the face of record.

"8. In view of the above position, since this review petition in the opinion of this Court is not maintain able, counsel for the plaintiff/applicant is allowed to withdraw this review petition with liberty to file an appeal against the impugned order dated 28.1.2016 dismissing I.A. No. 22524/2014 and in which appeal plaintiff can raise all grounds against the order dated 28.1.2016 as asserted in the present review petition and also other grounds if may be available to the plaintiff. I may also note that the pendency of the present review petition would be a possible ground not only for plaintiff to seek condonation of delay in filing the appeal against the order dated 28.1.2016, but also, the case of the plaintiff so far as limitation period of filing of the appeal is concerned would also be within parameters of Section 14 of the Limitation Act, 1963.

"9. The review petition is accordingly disposed of in terms of the aforesaid observations."

2. By Order dated 28.01.2016, being the order under challenge in this appeal, the single Judge has taken the view that the application for mesne profit cannot be entertained after preliminary decree is passed if no such prayer was made in the plaint. The said view, as also alluded to in the review order, is contrary to the view expressed by another single Judge in an earlier judgment reported in Sita Kashyap and Another. In fact, before us reference is also made to the judgment in the case of Seth Girdhari Lal and Others vs. Seth Gaja Nand and Others, (1974) 1 ILR (Del) 864 and order dated 12th August, 2013 of a Division Bench of this Court in FAO (OS) No. 238/2011 titled Harbans Kashyap vs. Sita Kashyap and Others affirming the judgment of the single Judge in the case of Sita Kashyap and An