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Nirmala Devi Vs. Gopal Krishan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 7 of 1979
Judge
Reported in21(1982)DLT326; 1982RLR207
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17 - Order 47, Rule 1; Limitation Act, 1908 - Sections 5
AppellantNirmala Devi
RespondentGopal Krishan and ors.
Advocates: V.B. Andley,; Bajinder Mathur and; D.N. Nijhawan, Advs
Cases ReferredIn Jai Jai Ram Manohar Lal v. National Building Material Supply
Excerpt:
.....in the trial court as well as in the first appellate court, was instructed to make necessary application for obtaining the certified copies of the two orders and the grounds of appeal, that shri malhotra had no clerk, that he died and the whereabouts of his old record were not known, that the petitioner went to her counsel on 7th may, 1980 to enquire about the possibility of the revision petition being heard at anearly date when it transpired that the certified copies of the said orders dated 31st august, 1978 and 28th october, 1978 had not been filed that the petitioner's son subhash chandra made enquiries from the copying agency on 8th may, 1980 and came to know that there was no application pending for obtaining the certified copies of the said orders alleged to have been made..........set up by the proposed amendment. the trial court by order dated 28th october, 1978 accepted the review application and granted leave to the plaintiff to amend the plaint as proposed. the subordinate judge observed that the said full bench judgment in sarup singh (supra) and another judgment in m/s. ex. servicemen enterprises (p) ltd , (supra) were not brought to hii notice and thereforee the question of applying his mind to the said law had not arisen. the trial court after referring to the said two judgments reviewed its earlier order dated 31st august, 1978. the defendants i and 2 filed an appeal before the senior sub judge who by the impugned order reversed the order of the trial court, holding that the trial court violated the provisions of order 47 rule 1 of the code in granting.....
Judgment:

Sultan Singh, J.

(1) The petitioner by this revision petition under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') challenges the judgment and order of the Senior Sub Judge dated 30th November, 1978 reversing the order of the Subordinate Judge dated 28th October, 1978, granting her leave to amend the plaint after reviewing his earlier order dated 31st August, 1978.

(2) Briefly the facts are that Jodha Ram had three sons, namely, Partap Chand, Gopal Krishan (defendant No. 1) and Satpal (defendant No. 2). Smt.NirmalaDevi, plaintiff-petitioner is the widow of Partap Ghand. House No. 36-A and B, Block No. 80 in Malviya Nagar, New Delhi was allotted to her in 1951 by the Housing and Rent Officer, Delhi on payment of Rs. 20.00 per month as rent. She had been paying rent and eventually on payment of Rs. 9,782-31 towards the cost, interest, rent, ground rent arrears etc. the President of India executed a registered lease deed dated 28th May, 1968 in respect of the plot of land and also executed a registered Deed of Conveyance in her favor for the structure standing on the said plot. The plaintiff thus claims herself to be the lessee of the plot and owner of the building standing thereon. Gopal Krishan and Satpal (defendants I and 2) are alleged to be in occupation of the property as licensees under the plaintiff. Defendants I and 2 filed a suit in December, 1969 against the plaintiff for an injunction not to disturb their possession except in due course of law which suit was dismissed on 10th April, 1978 by the trial court but an appeal i pending.

(3) The plaintiff in May, 1970 filed the suit for mandatory injunction against defendants I and 2 to vacate portion of the said property in their occupation .and not to interfere with her possession. Defendants I and 2 in their written statement dated 11th August, 1970 besides other defenses pleaded that the suit in the present form was not maintainable, that her suit was really a suit for possession) that she was liable to pay ad valorem court fee on the value of the property. This suit was stayed on 27th February, 1971 in view of the earlier suit for injunction filed by defendants 1 and 2.

(4) On 24th February, 1977 the plaintiff however moved an application for leave to amend her plaint alleging that in a suit for mandatory injunction against the defendants she was not entitled to recover possession and thereforee wanted to convert her suit into a suit for possession and mesne profits. The application was filed on the basis of a Full Bench judgment of this court, in Re ; Sarup Singh v. Daryodhan Singh, : AIR1972Delhi142 (F.B.) wherein it has been held that a decree for injunction against a licensee was normally to be executed in accordance with Order 21 rule 32(1) & (3) of the Code and that the decree-holder was not entitled to obtain possession from the judgment debtor under rule 32(5) of Order 21 of the Code. The defendants resisted this application. It was dismissed by the trial court by order dated 31st August, 1978 mainly on the ground that the plaintiff had not brought on record the Full Bench ruling of the High Court referred to by him in the application. The plaintiff filed an application dated 4th September, 1978 under Order 47 rule 1 of the Code for the review of the said order alleging that the said Full Bench judgment was not brought to the notice of the court by its staff which resulted in illegality and mistake apparent on record, that according to the judgment in Re : A.K. Gupta & Song v. Damodar Valley Corporation, : [1966]1SCR796 and M/s. Ex. Servicemen Enterprises (P) Ltd. v. Sumey Singh Air 1976 Delhi 56, the court ought to have allowed the amendment of the plaintiff, that there was neither change in the cause of action nor a new case was sought to be set up by the proposed amendment. The trial court by order dated 28th October, 1978 accepted the review application and granted leave to the plaintiff to amend the plaint as proposed. The Subordinate Judge observed that the said Full Bench judgment in Sarup Singh (Supra) and another judgment in M/s. Ex. Servicemen Enterprises (P) Ltd , (Supra) were not brought to hii notice and thereforee the question of applying his mind to the said law had not arisen. The trial court after referring to the said two judgments reviewed its earlier order dated 31st August, 1978. The defendants I and 2 filed an appeal before the Senior Sub Judge who by the impugned order reversed the order of the trial court, holding that the trial court violated the provisions of Order 47 rule 1 of the Code in granting leave to amend the plaint. The appellate court held that taking a mistaken view of law by the court is not a ground for review and the allegation that staff of the court did not produce the law reports before the Sub Judge at the time of writing order was vague. Hence this revision.

(5) Learned counsel for the contesting respondents 1 and 2 has raised a preliminary objection that the revision petition is barred by time. The petitioner filed an application (C.M. No. 1809 of 1980) under Section 5 of the limitation Act alleging that the impugned order was passed on 30th November, 1978, that Mr. Dhan Raj Malhotra, Advocate, counsel for the petitioner-plaintiff in the trial court as well as in the first appellate court, was instructed to make necessary application for obtaining the certified copies of the two orders and the grounds of appeal, that Shri Malhotra had no clerk, that he died and the whereabouts of his old record were not known, that the petitioner went to her counsel on 7th May, 1980 to enquire about the possibility of the revision petition being heard at anearly date when it transpired that the certified copies of the said orders dated 31st August, 1978 and 28th October, 1978 had not been filed that the petitioner's son Subhash Chandra made enquiries from the Copying Agency on 8th May, 1980 and came to know that there was no application pending for obtaining the certified copies of the said orders alleged to have been made by Mr. Dhan Raj Malhotra, Advocate, that the petitioner on 9th May, 1980 made a fresh application for obtaining the certified copies of the said orders which were ready on 13th May, 1980, that she contacted her counsel on 14th May, 1980, that 15th and 16th May, 1980 were taken by the counsel in preparing the application for condensation of delay and 17th and 18th May, 1980 were Saturday and Sunday respectively and that she was prevented by sufficient cause from filing the certified copies of the said orders earlier. The certified copies were filed on 19th May, 1980. Under these circumstances the condensation of delay is claimed by the petitioner. The respondents in reply submit that the petitioner did not act at all with due deligence, that the negligence on the part of her counsel who was an agent of the petitioner is her negligence. It is admitted by the respondents that Shri Dhan Raj Malhotra, Advocate was counsel for the petitioner in the lower courts. He submits that filing of the certified copy of the order of the trial court along with the revision petition was also essential. From the certified copy of the impugned order dated 30th November, 1978 it is clear that Shri Dhan Raj Malhotra, Advocate, had made an application on 1st December, 1978 for obtaining the certified copy of the said order and the grounds of appeal which were ready on 7th December, 1978. These certified copies were filed along with the revision petition on 22nd December, 1978 by Shri V.B. Andley, counsel turn the petitioner. It is admitted at the bar that Shri Dhan Raj Malhotra, Advocate died on 10th December, 1978. This revision came up for admission on 9th January, 1979 when it was admitted and it was ordered that the certified copies of the ordcri may be filed when obtained. According to the petitioner she had instructed Shri Malhotra her previous counsel to obtain the certified copies of the relevant documents. But now it appears that these copies are not avail- able. It is not known whether Mr. Malhotra had made an application for obtaining the certified copies of the orders dated 31st August, 1978 and 28th October, 1978 of the trial court. He is unfortunately dead. The petitioner had instructed him. She cannot be made to suffer on account of the act of her previous counsel who is no more. She was always under the impression that her previous counsel had done whatever was required to be done in law. She had filed the present suit in 1970 and on 7th May, 1980 she approached her counsel for expediting the hearing of the revision petition and she came to know that the certified copies of the trial court orders were not on record. After enquiries from the copying department she made an application on 9th May, 1978 for obtaining certified copies and filed the same along with an application for condensation of delay. The short question is : Whether the delay in filing the certified copy of the trial court order dated 28th October, 1978inthiicourt on 19th May, 1981 should becondoned. Aninnocent litigant cannot be allowed to suffer injustice for the fault of his Advocate. (See: Rafiq and another v. Munshilal and another, : [1981]3SCR509 . The Supreme Court in Ramlal and others v. Rewa Coalfields Ltd., : [1962]2SCR762 has observed that the words 'sufficient cause' in Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the litigant. In the instant case, nothing can be imputated to the petitioner. She instructed her previous counsel to obtain the certified copies who actually applied for the certified copy of the order of the first appellate court. It is however not known and one cannot be certain whether Mr. Malhotra made an application for obtaining certified copies of orders of the trial court. In the ordinary course I would believe that he must have made such an application and the same is now not available. The petitioner made enquiry from the copying agency and there is no such application. Failure to make an application for obtaining a copy of the trial court's order may be a lapse of Mr. Malhotra but the petitioner cannot be made to suffer for his lapse if there was any. In KuldipSingh v. Krishan Kumar, : AIR1974Delhi111 certified copy of the judgment of the trial court was misplaced by the lawyer's clerk and delay was condoned. In Narain Das v. Kundan Sugar Mills, 1973 Raj. Reporter 139 the Division Bench has observed that there was no fixed or hard rule for condensation of delay and if there was no ulterior or oblique motive and late filing is not a device then delay should be condoned. It was also observed that the delay may be condoned if the copy gets misplaced and lost and another has to be obtained. In the instant case there is no ulterior or oblique motive and the late filing of the trial court order is not a device at all. I am, thereforee, of the view that the delay in filing the certified copies of the trial court's order dated 31st August, 1978 and 28th October, 1978 in the circumstances of this case should be condoned. I condone the delay accordingly.

(6) The next question is: Whether the trial court was justified in allowing amendment of the plaint after reviewing its earlier order. From the facts, it is apparent that the plaintiff filed the present suit prior to the Full Bench judgment in the case of Sarup Singh (Supra) where it has been held that the decree-holder of a decree for mandatory injunction against a licensee is not entitled to obtain dispossession of the judgment debtor by issue of a warrant of possession. The plaintiff had originally filed the suit for mandatory injunction but approached the court to grant her leave to amend the plaint with a view to convert her suit of mandatory injunction into a suit for possession and mesne profits. The Law Report containing the Full Bench judgment, according to the counsel for the petitioner, was left with the staff of the trial court and it appears that when the Subordinate Judge was writing the order dated 31st August, 1978 the staff did not bring the same to his notice. During the course of arguments it transpired that the Law Report containing the said Full Bench judgment was left with the reader of the court and somehow the said judgment was not noticed by the trial court. The court in the order dated 31st August, 1978 has made an observation that the ruling of the High Court referred to by the counsel for the plaintiff had not been brought on record. In other words, it means that the trial court was conscious of the Full Bench judgment but as the Law Report was not available to it the same was not taken into consideration and the court did not apply its mind. Moreover the trial court referred to the Supreme Court judgment in A.K. Gupta & Sons (Supra) and in spite of that refused leave to amend the plaint. Order 47 rule I of the Code reads as under :

'(1)Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed (e) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order'.

Under this rule any person considering himself aggrieved by an order from which no appeal is allowed may apply for review of the order in the following cases:

(I)on the ground of the discovery of new and important matter which was not within his knowledge or could not be produced by him at the time when the order wai passed; or

(II)on account of some mistake apparent on the face of the record; or

(III)for any other sufficient reason.

(7) In Sri Karutha Kritya Rameswaraswami Varu v. B. Ramalinga Raju and others, : AIR1960AP17 it has been held that failure to notice and give effect to binding authority because of failure of counsel to draw the attention of a judge to such an authority can be said to constitute an error apparent on the face of the record and that a failure to give proper effect to decisions cited is equally an error. In The Selection Committee for Admission to the Medical awl Dental College, Bangalore v. M.P. Nagaraj, Air 1972 Mys 44 it has been observed that the decision of a court by overlooking a decision of the Supreme Court which is binding on all courts constitutes an error apparent on the face of the record justifying review of the decision contrary to the decision of Supreme Court. The trial court in the instant case overlooked the said Full Bench decision of this court. There was thus error apparent on record and the trial court was justified in reviewing its order. In B. Raju Betten v. N.M.K. Appa Rao and others, (1974) 87 Law Wee 707 certain affidavits were placed before the court even before the passing of the original order but the court due to inadvertence did not refer to them. Subsequently, the party applied for review and it was held that there was sufficient justification for review. In Natesa Naicker v. Sambanda Chettiar, Air 1941 Mad 918 it has been observed that if by oversight the Judge has gone wrong by not refering to the legal authority it is a ground for review within the category of an error apparent on the face of the record. It has been further observed that where the original order which has been reviewed is demonstrably wrong, the appellate court will not interfere with that review order even though the basis or reasoning on which the original order has been reviewed is open to criticism. In the instant case, the trial court did not apply its mind to the Full Bench judgment in the case of Sarup Singh (Supra) and the first appellate court was not justified in reversing the order of the trial court passed on review. The first appellate court has observed that the trial court violated the provisions of Order 47 rule 1 of the Code but it is not so. The trial court did not apply its mind to the Full Bench judgment contained in the Law Report which was delivered by the plaintiff's counsel to its reader. There was thus an error apparent on record. It is well known that all subordinate courts have no independent law library for reference of the judgments cited at the bar. The Bar members leave the cited Law Reports with the staff of the court and the judicial officer at the time of writing judgment takes the help of such Law Reports. In the instant case it appears that the staff of the court who was entrusted with the Law Reports by the plaintiff did not bring to the notice of the Judge the books left by the counsel. The trial court thereforee was justified in reviewing its earlier order. The first appellate court was wrong in holding that the trial court violated the review provisions contained in Order 47 rule 1 of the Code.

(8) The late question is : Whether the amendment allowed is justified. As already stated, the plaintiff initially filed the suit for mandatory injunction requiring the defendants to vacate the property in their occupation and not to interfere with the plaintiff's possession. In view of the Full Bench judgment the plaintiff seeks to claim the relief of possession on the basis of title. The facts constituting the title of the plaintiff have already been pleaded. The proposed amendment by the plaintiff is nothing but a different or additional approach to the facts already on the record with a view to obtain material relief of possession. The defendants in their written statement pleaded that the suit in the present form was not maintainable and that in fact it was a suit for possession. In view of the Full Bench judgment in the case of Sarup Singh (Supra) it is just and proper for the plaintiff to obtain a decree for possession instead of a decree for mandatory injunction. In A.K. Gupta & Sons (Supra) it has been observed by the Supreme Court that if the amendment does not constitute addition of a new cause of action or raise a new case but amounts to no more than a different or additional approach to the facts already on the record, the amendment will be allowed even after the expiry of the statutory period of limitation. The expression 'new cause of action' in this context means, a new claim made on a new basis constituted by new facts and 'new case' means a new set of ideas. In the instant case, as already observed, there is no new idea and there arc no new facts. The facts constituting the title of the plaintiff on the basis of allotment letter of 1951, lease deed of 1968 and conveyance deed of 19b8 have already been pleaded in the plaint. What is now claimed is a decree for possession instead of a decree for mandatory injunction. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, 1969 (1) S.S.C.869 the Supreme Court has observed that, however, negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. In Smt, Batni and others v .Shri Tej Singh, the plaintiff - instituted a suit for mandatory injunction requiring the defendant to remove his goods from the property and restraining him from interfering with his possession. The defendant objected to the form of the suit. The plaintiff sought amendment of the plaint by adding an alternative prayer that even if the defendant was a trespasser he should be granted a decree for possession. The amendment was allowed. The trial court originally instead of dismissing the application for leave to amend by order dated 31st August, 1978 ought to have allowed leave to amend the plaint but for one reason or the other it did not apply its mind and thereforee the application for leave to amend was dismissed. But on review the trial court after applying its mind reversed its previous order. In these circumstances, the first appellate Court erred in reversing the order allowing review application. The first appellate court has observed that the order rejecting the amendment application could have been agitated by the plaintiff before the appellate court in an appeal against the final decree. This is not a correct approach. If the subordinate Court has committed an error which has been set right on review, it must be maintained, instead of directing the litigant to wait up to the final decision in the case and then agitate the matter before the appellate court. If the impugned order of the first appellate court is allowed to stand it would occasion failure of justice. The plaintiff, as already stated, has pleaded all the facts constituting her title to the suit property. If amendment is not allowed she would suffer irreparable injury. She will not be able to obtain possession even if the suit for mandatory injunction is decreed. and costs.

(9) I, thereforee, set aside the judgment and order dated 30th November, 1978 of the Senior Sub Judge and restore the order dated 28th October, 1978 passed by the trial court reviewing its earlier order dated 31st August, 1978 and allowing the plaintiff leave to amend the plaint. No ord order dated 31st August, order as to


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