Bhagwati Devi vs Samunder Singh

L.N. Mittal, J.

C.M. No. 9769-C of 2012 :

This is application for condonation of delay of 269 days in refiling the Review Application. Only factual position has been given in the application

that the Review Application was returned by the Registry with some objections including objection regarding court fee. The counsel conveyed the

same to the applicant-appellant, who furnished the requisite court fee and after removing objections, Review Application was re-filed. I have heard

counsel for the applicant-appellant and perused the case file.

Counsel for the applicant-appellant reiterated the version stated in the application. However, no ground, whatsoever, has been pleaded in the

application for condonation of long delay of almost nine months in re-filing the Review Application. Only factual position has been given in the

application that Review Application was returned by the Registry with some objections and the same was re-filed after removing objections

including payment of court fee. It is nowhere mentioned in the application as to why the re-filing was done after delay of almost nine months

excluding the period of 40 days prescribed for re-filing the case. In the absence of any ground, whatsoever, pleaded in the application, the question

of condoning the long delay of almost nine months in re-filing the Review Application does not arise. The application is not only meritless, but is

completely frivolous and is accordingly dismissed with costs of Rs. 5,000/-, to be deposited by the applicant-appellant with the Registry of this

Court within one month, failing which the case shall be listed for this purpose.

C.M. No. 9770-C of 2012 :

This is application for condonation of delay of 125 days in filing the Review Application.

Although strictly speaking, averments made in the application do not make out sufficient cause for condoning the said delay, yet adopting liberal

approach, the said delay is condoned. The application stands allowed accordingly.

RA-RS No. 55-C of 2012 :

Since delay in re-filing the Review Application has not been condoned, the Review Application deserves to be dismissed on this core alone.

However, even on merits, the applicant-appellant cannot succeed.

Regular Second Appeal filed by the applicant-appellant was dismissed in limine by this Court vide judgment and decree dated 02.05.2011. This

Review Application has been filed for review of the said judgment.

I have heard counsel for the applicant-appellant and perused the case file.

Counsel for the applicant-appellant contended that according to the impugned agreement, possession of the suit property was not delivered to

respondent-plaintiff, and therefore, relief of injunction could not be granted to the plaintiff. The contention is completely misconceived. No relief of

injunction has been granted by the lower appellate court to the plaintiff. On the contrary, the suit has been decreed for specific performance of the

agreement. It may also be added that at the time of hearing of the appeal, it was mainly contended on behalf of the appellant that possession of the

suit property was also delivered to the plaintiff at the time of impugned agreement, and therefore, the agreement required compulsory registration in

view of Section 17 (1A) of the Registration Act, 1908, but it is unregistered, and therefore, it cannot be looked into. The contention regarding

requirement of compulsory registration of the agreement was dealt with as the agreement could still be specifically enforced, although protection u/s

53-A of the Transfer of Property Act would not have been available to the vendee. At the time of hearing of the appeal, having argued that

possession of the suit property was also delivered to the plaintiff at the time of agreement, the aforesaid contention does not lie in the mouth of the

applicant-appellant for seeking review of the aforesaid judgment.

Counsel for the appellant also contended that the agreement has been forged and fabricated. However, vide impugned judgment, it has been

held that due execution of the agreement has been fully proved.

Counsel for the appellant also argued that appellant has filed suit against Naseeb Singh - an attesting witness of the agreement and Naseeb

Singh has stated that he shall not interfere in possession of the appellant over the suit property. I fail to comprehend as to how this contention has

any relation to the Review Application. If the appellant has colluded with Naseeb Singh and has obtained a writing from him, it has no bearing on

the rights of respondent-plaintiff in the instant lis.

It is worth mentioning that appellant had also challenged judgment dated 02.05.2011 by filing SLP (S.L.P.) in Hon''ble Supreme Court and the

same has been dismissed. Thereafter, the instant Review Application has been filed. It is correct that technically, even after dismissal of SLP by

Hon''ble Supreme Court, Review Application is maintainable, but since Hon''ble Supreme Court found no error in the impugned judgment of this

Court, and therefore dismissed the S.L.P., there was no occasion for the applicant-appellant to have invoked the review jurisdiction of this Court

by filing this Review Application. The applicant-appellant is gravely abusing the process of this Court by filing this Review Application. No ground,

whatsoever, for review of the impugned judgment is made out within the parameters of Order 47 Rule 1 of the Code of Civil Procedure. On the

other hand, under the garb of Review Application, counsel for the applicant-appellant has re-argued the appeal, which is not permissible. Even on

re-arguing the appeal, counsel for the applicant-appellant could not make out any case for granting any indulgence to the applicant-appellant. Such

frivolous litigation has to be curbed by imposing costs on the applicant-appellant. The Review Application is not only meritless, but is completely

frivolous. Accordingly, the Review Application is dismissed with costs of Rs. 20,000/-, to be deposited by the appellant, with the Registry of this

Court within one month from today, failing which the case shall be listed for this purpose.