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IN THE HIGH COURT OF DELHI AT NEW DELHI
MINI PUSHKARNA, J.
Shri Anil Kumar Gupta – Appellant
Versus
Shri Ajit Kumar – Respondent
CS(OS) 275 of 2017 and Review Pet.76 of 2023
Decided on : 22-03-2023
Review Petition - Application under Order 39 Rule 2A CPC - The court dismissed the review petition seeking to review an order, stating that the application under Order 39 Rule 2A CPC was still pending before the Roster Bench and the maintainability of the application should be raised before the Roster Bench. The review petitioner was granted liberty to make appropriate submissions before the Roster Bench, and it was clarified that if the Roster Bench concludes that the application is not maintainable, any order passed in the application would not survive.
Fact of the Case:
The review petition was filed seeking review of an order dated 27.10.2022 related to an application under Order 39 Rule 2A CPC. The review petitioner argued that since there were no orders under Order 39 Rules 1 and 2 CPC, the application under Order 39 Rule 2A CPC was not maintainable.
Finding of the Court:
The court found that the application under Order 39 Rule 2A CPC was still pending before the Roster Bench and that the maintainability of the application should be raised before the Roster Bench. The review petitioner was granted liberty to make appropriate submissions before the Roster Bench.
Issues: The issues revolved around the maintainability of the application under Order 39 Rule 2A CPC and the appropriate forum for raising contentions regarding its maintainability.
Ratio Decidendi: The court's decision was based on the fact that the application under Order 39 Rule 2A CPC was still pending before the Roster Bench, and therefore, the maintainability of the application should be raised before the Roster Bench.
Final Decision: The review petition was dismissed as withdrawn, and the review petitioner was granted liberty to make appropriate submissions before the Roster Bench.
JUDGMENT :
[Physical Hearing/ Hybrid Hearing]
MINI PUSHKARNA, J.
REVIEW PET.76/2023
1. The review petition has been filed under Section 114 read with Section 151 CPC seeking review of the order dated 27.10.2022.
2. Learned counsel appearing for the review petitioner/ defendant submits that by order dated 27.10.2022, certain directions had been passed by this Court in IA No. 5610/2020, which is an application under Order 39 Rule 2A CPC. Learned counsel submits that since there are no orders under Order 39 Rules 1 and 2 CPC, therefore, the application under Order 39 Rule 2A CPC was not maintainable. She relies upon the judgment passed by the Hon’ble Supreme Court in Food Corpn. of India v. Sukh Deo Prasad, (2009) 5 SCC 665, in support of her submissions.
3. It is seen from the record that this Court has neither disposed of the said application, IA No. 5610/2020 filed under Order 39 Rule 2A CPC nor has adjudicated upon the maintainability of the said application.
4. In view thereof, it is clear that the said application under Order 39 Rule 2A CPC is still pending before the Roster Bench. Since this Court has not passed any final order in the said application under Order 39 Rule 2A CPC, submissions on the maintainability of the said application, as such would have to be made before the Roster Bench.
5. At this stage, learned counsel appearing for the review petitioner seeks liberty to withdraw the present review petition. She further submits that liberty may be granted to her to raise all the contentions with regard to maintainability of the application under Order 39 Rule 2A CPC before the Roster Bench.
6. Liberty is granted to the review petitioner/ defendant to make appropriate submissions before the Roster Bench.
7. Needless to state, if after hearing the application under Order 39 Rule 2A CPC on merits, the Roster Bench comes to a conclusion that the said application is not maintainable, any order passed in the said application, would not survive.
8. In view of the aforesaid, the present review petition is dismissed as withdrawn.
The main legal point established in the judgment is that the maintainability of an application under Order 39 Rule 2A CPC should be raised before the appropriate forum, in this case, the Roster Bench....
The rejection of an application under Order 26 Rule 9 of CPC is revisable under Section 115 of CPC if it decides a right between the parties.
Finality of orders and implementation of Settlement Agreements
The filing of a statutory appeal after an order is passed may impact the consideration of an application for recall of the order.
A review petition can be allowed if an application for additional evidence was overlooked, constituting an error apparent on the record.
The main legal point established in the judgment is the maintainability of a review petition and the requirement for examination on its own merits, as guided by the provisions of Order 47 Rule 1 CPC ....
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