Uttarakhand High Court
Bihari D Chhabaria vs Mohan Das Disciple Of Swami Uttam Das ... on 21 May, 2015
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Review Application (MCC 324/2015)
In
First Appeal No. 14/2011
Bihari D. Chhabaria,
..... Plaintiff/Appellant
Versus
Mohan Das Disciple of Swami Uttam Das Udasin
And 8 Others.
....Defendants/Respondents
None for the plaintiff/appellant.
Mr. Rajendra Dobhal, Sr. Advocate assisted by Mr. Nikhil Singhal,
Advocate for the review applicant/defendant/respondent no. 1.
May 21, 2015
Hon'ble Servesh Kumar Gupta, J.
By the present review application, it has been submitted that this Court has adverted the view as regards to the nature of the property, whether it is a trust or otherwise.
This argument is totally baseless for the reason that no such view in the judgment dated 5.5.2015 has been expressed. Only the rival contentions with the word "claim" have been stated in such judgment. Both parties made their respective claims as regards the nature of property. It does not mean that the Court has indicated its view.
As regards the finding on the question of ad valorem Court Fee on the total market cost of the property is concerned, such issue was a core issue before the Court because the plaint was rejected only on that ground. So, without rendering its opinion in that regard, the setting aside of the Court's orders dated 6.1.2011 and 17.2.2011 would not have carried any meaning.
As regard the ground (e) that this Court committed an error in holding that the suit was rejected under Order VII Rule 11(b) of the Civil Procedure Code, 2 whereas the plaint of the appellant/plaintiff was rejected under Order VII Rule 11 (c) of the Code, the Court expresses that such mistake was only typographical one and such will not affect adversely the substance of the judgment.
It was ultimately argued that a Civil Miscellaneous Application No. 4650/2013 moved by the appellant on 10.5.2013 was also pending and the prayer was made in that regard in the pleadings of the appeal, but such application has not been considered.
The Court had not considered the said application for the reason that such application was "not pressed" by the appellant. It is pertinent to mention that by moving of such application, the appellant wanted to delete the relief of possession from the defendant no. 1 Mohan Das, but that application and such relief itself loose the significance and relevance after the appointment of the receiver over the property in question and that is why the Court, in so many words, has said that the possession of the receiver is the possession of the Court. That being the situation, the property will be deemed in the possession of the Court and in case the plaintiff succeeds, then he has not to claim such possession from the defendant no. 1, but the Court itself will give the possession of the property in question, if so desired. So, this application was rightly not pressed and there was no need to adjudicate upon that application.
In case the suit is dismissed, then Mr. Mohan Das will be at liberty to approach this Court for regaining the possession of the property in question.
The review application stands rejected.
(Servesh Kumar Gupta, J.) Prabodh 3