Delhi District Court
Shri Deepak Verma & Ors vs Smt. Asha Verma & Ors. ........ ... on 6 October, 2018
IN THE COURT OF SHRI SANJAY SHARMAI
ADDL. DISTRICT JUDGE - 02 (EAST DISTRICT)
KARKARDOOMA COURTS : DELHI
Misc. No. 160/2017
Shri Deepak Verma & ors. ............ Applicants/Defendants
Versus
Smt. Asha Verma & ors. ........ Nonapplicants/Plaintiffs
O R D E R :
This order shall dispose of an application under Section
114 CPC filed by the applicants Shri Deepak Verma and Smt. Poonam
Verma who were defendant No. 1 and 2 in the main suit, seeking
review of the impugned order dt. 11.1.2017. An appropriate reply to
the said application was preferred by the nonapplicants/plaintiffs to
which the applicants filed a rejoinder.
2. In brief the facts giving rise to the present application are
that the nonapplicants Smt. Asha Verma, Smt. Suman Verma and
Smt. Mona Verma (plaintiffs) filed a suit for partition, possession and
permanent injunction against the applicants and Smt. Kamla Verma in
respect of the suit property bearing No. 46/110A, West Azad Nagar,
near Chhachi Building, Krishna Nagar, Delhi, measuring 90 sq. yards,
as well as Shop No. 11/125 (old), New No. 212, Plot No. 30, Private
No. 10, Main Road, West Azad Nagar, Delhi110 051, measuring 9 X
Misc. No.160/2017 Page 1 of 8
20 sq. feet (hereinafter referred to as the suit properties). It was
pleaded in the suit that the said properties belonged to late Shri Ram
Prasad Verma who was their absolute owner and who died intestate on
21.10.2002. The plaintiffs are the real sisters of applicant/defendant No. 1 Shri Deepak Verma while nonapplicant No. 4 Smt. Kamla Verma who was defendant No. 3 in the main suit, is the mother of the said plaintiffs and defendant No. 1 and motherinlaw of defendant No.2. One other daughter of late Shri Ram Prasad Verma namely Smt. Pushpa Verma was not arrayed and impleaded in the suit as a party.
3. The suit was contested by the defendants therein. However, during the pendency of the suit, the parties arrived at a family settlement which was formally recorded in the form of a Family Settlement Deed. The same was filed in the Court and on the basis of the said settlement deed, statement of all the parties to the suit and the Ld. Counsel for the defendants Ms. Radha Parihar - Advocate, the suit was finally disposed of as settled, vide order dt. 17.4.2004.
4. Thereafter, an application was filed by the plaintiffs of the said suit namely Smt. Asha Verma, Smt. Suman Verma, Smt. Mona Verma as well as defendant No. 3 Smt. Kamla Verma and the remaining daughter Smt. Pushpa Verma who was not impleaded in the main suit, under Section 151 CPC, wherein it was alleged that the non applicants in the said application i.e. Shri Deepak Verma and his wife Smt. Poonam Verma (who are applicants in the present application) Misc. No.160/2017 Page 2 of 8 have violated the terms and conditions of the family settlement dt. 15.3.2014 and were not abiding the terms contained therein and further that they were not giving the rightful share to the applicants in terms of the said settlement. The application was duly replied by the non applicants, raising objections under Section 47 CPC as well.
5. Another application was filed by the same very applicants, i.e. plaintiffs No. 1 to 3, defendant No. 3 and Smt. Pushpa Verma under Section 152/153 CPC for amending the order/judgment dt. 17.4.2014 and for making corrections in the Settlement Deed dt. 15.3.2014, submitting therein that inadvertently the Ld. ADJ while passing the final order, failed to direct preparation of the decree sheet and that the name of the father of the parties was wrongly mentioned in the compromise deed as Ram Swaroop Sharma instead of Ram Prasad Verma which was sought to be corrected.
6. Both the said applications were decided and disposed by the Ld. Predecessor of this Court vide the impugned order dt. 11.1.2017. It was directed in the said order that a decree sheet be prepared in terms of the settlement arrived at between the parties as per Deed of Family Settlement Ex.C1 and further directed that the name of the father of the parties by read as Ram Prasad Verma in the said Family Settlement Deed Ex.C1 in future and for all purposes. On these very grounds, the application under Section 151 CPC was dismissed.
Misc. No.160/2017 Page 3 of 87. I have heard SN Kureel - Ld. Counsel for the applicants, Shri CL Rahi - Ld. Counsel for nonapplicants and have also perused the records of the case.
8. At the outset, it may be stated that the application is quite ambiguous as it is not clear on what count review has been claimed and what is the error apparent on record in the impugned order which is sought to be reviewed. In any case, on a scrutiny of the application and adverting to the arguments of Ld. Counsel for the applicants, the grounds on which the impugned order is sought to be reviewed and deciphered, are being dealt with as under :
i) That the application earlier filed by the non applicant under Section 152/153 CPC was time barred having been filed on 22.7.2016 while the judgment was pronounced accepting the family settlement, on 15.3.2014.
9. Even if this plea is accepted, I find no infirmity in the order since preparation of a decree sheet is mandatory whenever a suit is finally decided. In cases of compromise/settlement, a decree is required to be prepared in terms of the settlement under Order 23 CPC. Thus, it was only a procedural lapse for which no application was even required and therefore, the relief was rightly allowed. Secondly, the name of the father of parties was required to be corrected vide the said application which was also done in the impugned order. Again, I find no infirmity in the impugned order while allowing the said request as it was only a clerical error and the Court could have done it suo moto or Misc. No.160/2017 Page 4 of 8 on being orally pointed out by any of the parties since there was no dispute regarding the name of the deceased. Hence, for either purposes, no application was required and therefore, there is no question of limitation.
ii) It was submitted by Ld. Counsel for the applicants that while passing the impugned order the Ld. Predecessor failed to consider the plea raised by the applicants in their reply to the application under Section 151 CPC which were also objections under Section 47 CPC that late Shri Ram Prasad Verma had already executed a Will dt. 12.10.2000 in favour of applicant No. 1 Shri Deepak Verma and further that the suit property was not a self acquired property of late Shri Ram Prasad Verma but an ancestral property.
10. These two facts are self contradictory. In case, the suit property was ancestral, Shri Ram Prasad Verma could not have executed any Will of his undivided share unless it was partitioned. It is nobody's case that any partition of the suit property had ever taken place. Further, if any Will was executed by him in favour of Shri Deepak Verma on 12.10.2000, then why he entered into the family settlement, put his signatures thereupon and affirmed the Family Settlement Deed Ex.C1 by his statement on oath before the Court on 22.3.2014. He never raised any objection at that stage nor took the plea before the Court of any fraud or forgery to the effect that his signatures were obtained on the said Deed fraudulently, as argued by Ld. Counsel for the applicants. He also did not mention before the Court about the Misc. No.160/2017 Page 5 of 8 said Will while making the statement on 22.3.2014. Hence, the Ld. Predecessor rightly did not consider the said ground in the impugned order.
11. It is also worth mentioning that if applicant Shri Deepak Verma was aggrieved by the execution of the Family Settlement Deed Ex.C1, he should have moved a petition under Order 23 Rule 3 CPC but he kept silent and waited till the nonapplicants filed the application under Section 151 CPC and chose only to raise objections under Section 47 CPC therein, that too on 28.1.2016, although the said Family Settlement Deed was executed on 15.3.2014 and he made the statement before the Court, accepting the said settlement on 22.3.2014. Hence, no interference in the impugned order on that count is required.
iii) It was also submitted by Ld. Counsel for the applicant that in objections under Section 47 CPC, the applicants had also raised a plea that Shri Ram Prasad Verma died on 21.10.2002 and the amendment in Section 6 of the Hindu Succession Act, 1956 came into force on 09.9.2005 thereby granting equal share to the daughters in the coparcenary property and therefore, in the instant case the daughters were not entitled for any share.
12. Irrespective of the said legal position, once all the family members arrived at a mutual settlement through a family settlement Misc. No.160/2017 Page 6 of 8 deed, this aspect was not required to be considered. Had the suit reached its just conclusion, only then this plea could have been raised but once all the parties to a suit settled their dispute amicably, this legal aspect was meaningless.
13. The law regarding review is clear and well settled. In Inderchand Jain (dead) through LRs Vs. Moti Lal (dead) through LRs (2009) 14 Supreme Court Cases 663, the Hon'ble Apex Court relied upon the judgment in Board of Control for Cricket in India Vs. Netaji Cricket Club (2005) (4) SCC 741, wherein it was held that : "Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the fact of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason".
14. Ld. Counsel for the applicants has failed to point out any error apparent on the face of the impugned judgment or discovery of a new and important piece of evidence.
15. In Parsion Devi Vs. Sumitri Devi reported as (1997) 8 SCC 715, the Hon'ble Supreme Court of India after discussing the judgments in various previous pronouncements held that : "Under order 47 Rule 1 CPC a judgment may be open to review interalia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to Misc. No.160/2017 Page 7 of 8 exercise its power review under Order 47 Rule 1 CPC. In exercise of jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remember has a limited purpose and cannot be allowed to be "an appeal in disguise".
16. Hence, this Court finds no error apparent on the face of the record of the impugned order dt. 11.1.2017 and the grounds for review agitated by the applicants in the present review application have no merits. Hence, I find no ground to interfere in the impugned order or review the same. The application is, dismissed and disposed of accordingly.
File be consigned to the Record Room.
ANNOUNCED IN OPEN COURT Digitally signed by SANJAY SANJAY SHARMA Location: Delhi ON 6th day of October 2018 SHARMA Date: 2018.10.06 15:34:59 +0530 (SANJAY SHARMAI) Addl. District Judge02 (East) Karkardooma Courts, Delhi. Misc. No.160/2017 Page 8 of 8