Delhi District Court
Sanjay Baral vs Kalkaji Mandir Sudhar Committee on 31 August, 2013
IN THE COURT OF SH. SONU AGNIHOTRI,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM-GUARDIAN JUDGE,
DISTRICT: SOUTH, NEW DELHI.
MCA No. 30/2012
UNIQUE ID NO. 02406C0209602012
SANJAY BARAL
S/o Sh. Ram Baral,
R/o Dharamshala No. 1,
Near Mata Bhavan,
Kalkaji Mandir, New Delhi. ..........Appellant.
Vs
1. KALKAJI MANDIR SUDHAR COMMITTEE
Through its Mukhya Pujari, Kalkaji Mandir,
New Delhi.
2. SH. DEEPAK BHARDWAJ
R/o Deepak Dharamshala,
Near Ram Piyau, Kalkaji Mandir,
New Delhi.
3. SH. BHAGWAN DAS BHARDWAJ
Main Pujari, R/o Kalkaji Mandir, New Delhi.
4. SH. BABBE BHARDWAJ
R/o Main Gate, Kalkaji Mandir,
Kalkaji, New Delhi.
MCA No. 30/2012 Page No. 1 of 9
5. SH. NEERAJ KALA
R/o Maher Piyari Dharamshala,
Kalkaji Mandir, Kalkaji, New Delhi.
(Deleted from array of parties vide order dated 28.02.2013)
6. SHO,PS: KALKAJI, NEW DELHI. .........Respondents.
DATE OF INSTITUTION : 25.08.2012
DATE OF RESERVING ORDER : 06.07.2013
DATE OF PRONOUNCEMENT : 31.08.2013
ORDER
(31.08.2013) Vide this order, I shall dispose of an application filed by appellant for condonation of delay in filing of appeal.
Relevant facts for disposal of the present application are as follows:-
1. In the application, it is stated that appellant has filed accompanying appeal against Order dated 26.03.2012 passed by Court of Ms. Archana Beniwal, Ld. Civil Judge. It is stated that counsel for appellant did not advice properly and filed an application for modification of Order dated 26.03.2012 which was dismissed on 30.04.2012. It is stated that appellant pursued the case under wrong advice. It is stated that in between appellant changed the lawyer and thus present appeal filed by appellant. It is stated that there is delay of 120 days in filing of MCA No. 30/2012 Page No. 2 of 9 present appeal. It is stated that due to wrong pursuing of remedy and also because appellant had gone to Orissa for his personal work and could not come in time, present appeal could not be filed in time. It is stated that delay in filing of present appeal is neither intentional nor deliberate but because of the reasons stated above. It is stated that impugned Order dated 26.03.2012 is illegal and has caused grave injustice to appellant and is liable to be set aside. It has been prayed to condone delay of 120 days in filing of present appeal in the interest of justice.
2. Replies to the application were filed by respondents no. 1 to 4. Respondent no.5 was deleted from array of parties on request of counsel for appellant on 28.02.2013. None put appearance for respondent no.6 despite service. Respondent no. 1 in its reply has taken certain preliminary objections. It is stated that appellant has not come before Court with clean hands. It is stated that appellant has not disclosed true facts. It is stated that appellant has not annexed any proof in respect of contents of application under reply. It is stated that appellant has not made Mr. Harish Bhardwaj as party to present appeal on whose application Order dated 26.03.2012 was passed. On reply on merits, it is stated that application of appellant which was dismissed on 30.04.2012 was not an application for MCA No. 30/2012 Page No. 3 of 9 modification of Order dated 26.03.2012 but was specific application under Order 39 Rule 1 and 2 CPC which was dismissed on 30.04.2012 after proper hearing and going through facts of the case. It is stated that appellant has not annexed any proof in respect of his going to Orissa and that appellant was always present in proceedings which were going on before Trial Court. It has been prayed to dismiss application in hand with costs.
3. In replies of respondents no. 2 to 4, preliminary objection has been taken that present application has been filed with delay of 115 days and no proper reasons have been given for delay. It is stated that blaming advice of earlier counsel for not filing appeal is not a valid reason but is an insult to entire legal fraternity. On reply on merits, it has been denied that appellant pursued case under wrong advice. It is stated that appellant filed a modification application under Section 151 CPC for modification of Order dated 26.03.2012 with Trial Court and Trial Court after giving proper hearing to appellant and after knowing true facts had rejected application of appellant under Order 39 Rule 1 and 2 CPC in totality vide Order dated 30.04.2012. It is stated that technically it was not a review application but its purpose was to get review Order dated 26.03.2012 and thus infact it was a review application. It is stated that as per Order MCA No. 30/2012 Page No. 4 of 9 47 Rule 7 CPC, Order of Court rejecting review is not appealable and therefore present appeal is barred under Order 47 Rule 7 CPC. It is stated that appellant has filed appeal against Order dated 26.03.2012 which has been merged in Order dated 30.04.2012 which is the final order. It is stated that appellant attended Court Proceedings on 02.07.2012 and it is wrong to suggest that delay was caused due to non availability of appellant in Delhi. It is stated that it appears that appellant is concealing facts in this regard. It has been denied that Order dated 26.03.2012 is illegal order. It is stated that it is settled law that injunction is an equitable relief and Court must see as to whether a person who is a tress-passer can seek assistance of Court for protecting his unlawful possession against owner. It has been prayed to dismiss application with costs.
4. I have heard arguments addressed by respective counsels and perused judgments filed on behalf of parties.
5. Certified copy of Order dated 26.03.2012 passed by Trial Court has been filed by appellant on record. Vide this Order, Trial Court vacated ad-interim ex-parte injunction granted in favour of plaintiff vide Order dated 19.03.2012 on an application of Mr. Harish Bhardwaj filed under Order 1 Rule 10 read with Section 151 CPC. Photocopy of Order dated 30.04.2012 has MCA No. 30/2012 Page No. 5 of 9 been filed by respondent no. 1 on record (genuineness of copy not disputed on behalf of appellant during course of arguments on the application). Trial Court in Order dated 30.04.2012 with regard to application of appellant under Section 151 CPC read with Order 39 Rule 1 and 2 CPC has observed that it is submitted that an ad-interim ex-parte injunction be granted to plaintiff and Order 26.03.2012 be modified as the said order was passed by this Court in view of the Navratra Festival. Trial Court in Order dated 30.04.2012 further observed that it is clarified that ad-interim ex-parte injunction granted to plaintiff by Order dated 19.03.2012 stood vacated in view of the submissions made on behalf of defendants and it was vacated in totality and not only for the period of Navratras.
6. From perusal of Order dated 19.03.2012 filed by appellant on record, it is evident that an ad-interim ex-parte injunction was granted in favour of appellant/plaintiff and against respondents/defendants and respondents were restrained from dispossessing appellant and his family members from shop in question till next hearing. This ad-interim ex-parte injunction was vacated on application of Mr. Harish Bhardwaj filed under Order 1 Rule 10 CPC vide Order dated 26.03.2012. Appellant filed an application under Section 151 CPC read with Order 39 Rule 1 and 2 CPC which was taken up for hearing by Trial Court on MCA No. 30/2012 Page No. 6 of 9 30.04.2012 and from observations of Trial Court as mentioned in last para, it appears that review of Order dated 26.03.2012 was sought by appellant vide application which was dismissed by Trial Court on 30.04.2012 (though application was filed by appellant under Section 151 read with Order 39 Rule 1 and 2 CPC but from observations of Trial Court, it appears that review of Order dated 26.03.2012 was sought by appellant through this application).
7. Order 47 Rule 7 CPC bars appeal from an Order rejecting review. I restrain myself from further commenting upon application of appellant filed before Trial Court under Section 151 read with Order 39 Rule 1 and 2 CPC which was dismissed by Trial Court vide Order dated 30.04.2012 as at present I am not dealing appeal on merits but discussion done in earlier part of this Order was necessary to clear mist with regard to present appeal.
8. In application at hand, appellant has himself stated that he was not advised properly and he filed an application for modification of Order dated 26.03.2012 which was dismissed on 30.04.2012. Pleadings of appellant in this regard clearly show that his application which was dismissed by Trial Court on 30.04.2012 was an application for review of Order dated MCA No. 30/2012 Page No. 7 of 9 26.03.2012 in purport and content whatever its heading may be. A litigant being aggrieved of an Order passed by Court has two remedies generally i.e. remedy of review and remedy of appeal. It is well settled that when remedy of review has already been availed, remedy of appeal is barred. From pleadings of appellant in application at hand, it appears that appellant has already availed remedy of review against Order dated 26.03.2012 and remedy of appeal is barred under Order 47 Rule 7 CPC. Appellant cannot take the plea that he was wrongly advised. Appellant in his application has mentioned that he pursued case under wrong advice and present appeal has been filed after appellant changed the lawyer. Tomorrow in case appellant is not successful in application at hand, he might again change his lawyer and file revision before Hon'ble High Court of Delhi stating therein that he was not properly advised. There will be no end in this regard. If such pleas are considered and allowed, there will be no certainty with regard to interim order/final order of a Court and a litigant may always take this plea before Court of higher jurisdiction. Therefore this plea of appellant is not tenable particularly in the circumstances when appellant has not filed anything on record that he made a complaint against his previous counsel with regard to wrong advice being given to him. Further appellant has not annexed any proof with regard to he going to Orissa and for what purpose. The plea taken by MCA No. 30/2012 Page No. 8 of 9 appellant in this regard appears to be vague which cannot be accepted.
9. Appellant has filed judgments in cases titled as "Poonam & Ors. Vs. Harish Kumar & Anr. 2012 (1) CCC 426 (SC); Om Prakash Mishra Vs. Union of India through General Manager, Northern Railway Head Quarters, Baroda House, New Delhi & Ors. 2012 (1) CCC 225 (Allahabad); Bhausaheb s/o Hiraman Mokale & Ors. Vs. Laxman Shankar Gaikwad 2012 (1) CCC 533 (Bombay)" but these judgments are of no help to appellant as facts and circumstances of present case are quite different from facts and circumstances of the cases mentioned above.
10. In view of my discussion in various preceding paras, I am of the opinion that appellant has failed to explain delay of 120 days in filing of present appeal and application filed by appellant is liable to be rejected. Application of appellant is accordingly dismissed. Present appeal as a result of dismissal of application of appellant for condonation of delay in filing appeal also stands dismissed. File be consigned to Record Room.
Announced in open Court on 31.08.2013 Sonu Agnihotri JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
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