Delhi District Court
Gurpal Singh vs Charan Inder Pal Singh on 14 August, 2007
1
IN THE COURT OF SMT. ASHA MENON, ADJ,
TIS HAZARI COURTS, DELHI.
SUIT NO. : 381/2004
IN THE MATTER OF:-
Gurpal Singh ....Plaintiffs
Versus
Charan Inder Pal Singh ....Defendant
ORDER
This order will dispose of an application under Section 114 read with Order 47 Rule 1 CPC for review/ recall of the order dated 09.12.2006.
The brief facts as are relevant for the disposal of the present application are that this is a suit involving two brothers where one brother being the plaintiff Gurpal Singh has sought recovery of possession of property no. H-21, Kailash Colony, First Floor from the defendant Charan Inder Pal Singh and has also sought mesne profits. Issues have already been framed in this case and in fact the plaintiff has examined himself as witness in 2 this case by filing his affidavit and tendering the affidavit and documents on the record. This witness is to be cross examined by the defendant.
It was at this point of time that an application was filed by the defendant under Order 11 Rule 1 & 2 CPC. After the plaintiff filed his reply and after hearing the parties on 10.10.06, my Ld. Predecessor dismissed the application with cost of Rs. 2,000/- vide orders dated 09.12.2006.
The present application has been moved on 02.01.2007 seeking the review/ recall of the order dated 09.12.2006. Reply to this application has been filed by the plaintiff and I have heard the arguments of both counsels. It has been observed by a division of bench of our own Hon'ble High Court reported in ''P.U.R. Polyurethane Products (P) Ltd. Vs. Geeta Bhargava and Ors. 2006 (92) DRJ 83 (DB)'' that there was no provision in the CPC that permitted an application for ''recall'' to be filed. The provision of section 114 CPC read with order 47 CPC did not provide for such recall and neither could the omnibus provision of section 151 be pressed into service 3 when there was specific provisions in the CPC governing the filing of review petition. That being the position the application presently under consideration is to be treated as one for review of the order dated 09.12.2006.
The scope for review is extremely limited, though the Ld. Counsel for the defendant has sought to submit otherwise. A review is possible only if there was a discovery of new and important matter or evidence which was not within the knowledge of the applicant or there was some mistake or error apparent on the face of the record or for any other sufficient reason. The words ''any other sufficient reason''has to be interpreted analogously to the other reasons, namely discovery of new facts or evidence and mistake apparent on the face of the record. The words ''any other sufficient reason'' cannot broaden the scope of review to such an extent so as to make the hearing one of appeal.
In the present case, the application sets out in the grounds, that there was an error of law and facts while not 4 pleading what was ''anyother sufficient reason''for review. Thus, while the application refers to error of law as well as facts apparent on the face of the record, Ld. Counsel has chosen to submit that the scope of the review could not be limited to only this aspect and that for ''any other sufficient reason'' the Court could review the orders dated 09.12.2006. Such a plea divergent from the grounds taken cannot be entertained.
Be that as it may, after a careful reading of the application and the written submissions I am of the considered view that there is no error apparent on the face of the record which calls for review. Neither is there any sufficient cause disclosed calling for the review of the order dated 09.12.2006.
The allowing of interrogatories is a matter of discretion of the Court. The Court has discussed in detail the reason for exercising this discretion in the present case. The observance of the Ld. Predecessor regarding a written statement that had been filed by the defendant in another suit between the same parties is a reference to determine where or not the interrogatories were to be allowed, and is not to decide the suit. 5
In the circumstances, the mere observation of an admission in the written statement that was filed in some other proceedings will not constitute an error apparent on the face of the record. The Court has not returned a final finding. On the other hand it has merely disposed of the application under Order 11 Rule 1 & 2 CPC. In any case even if interrogatories had been allowed unless and until that part of the interrogatories were included in the evidence, there would have been no occasion for the Court to have returned a finding there upon. In the present case observations on the photo copy of the written statement do not amount to a final finding and the Court is still to decide the case on merits.
Once the Court has exercised its discretion in dismissing the application for interrogatories, it is not open to me to consider whether that order was correct or not or whether the reasons given were sufficient or not or even whether the interrogatories have been properly or improperly appreciated. Such pleas are available only when the matter is taken in appeal as they call for a re appreciation of the material. The 6 scope of review is not equivalent to that appeal and grounds available in an appeal are not available in a review. Thus the detailed submissions made both in the application as well as in the written arguments need not detain us.
Finally, coming to the question of imposition of costs considering the fact that several applications have been brought on record by the defendant over a period of time, the observation of my Ld. Predecessor regarding the delay caused and the imposition of the costs call for no review.
The application is accordingly disposed of. The case is now fixed for payment of costs and for cross examination of PW-1. To come up for this purpose on 24.09.07. Announced in the open court on this 14 day of August,2007.
(ASHA MENON)/ ADDL. DISTRICT JUDGE, DELHI.