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2007 DIGILAW 1151 (DEL)

SHAM SUNDER v. B. K. MANCHANDA

2007-05-28

J.P.SINGH

body2007
( 1 ) THIS Review Petition under Section 114 of the Code of Civil procedure has been filed to modify/review the order dated 29. 7. 2005 passed by this Court. ( 2 ) I have heard Ms. Maninder Acharya, learned counsel for the review petitioner/applicant. ( 3 ) LEARNED counsel for the applicant submits that the order is not borne out from the record and some apparent errors have crept in the said order. My attention has been drawn to para No. 2 of the order and it is pointed out that plaintiff No. 1 is the equal and exclusive owner of half of the property no. 17/44, Tilak Nagar, New Delhi comprising 100 Sq. Yds. and the plaintiff No. 2 is the exclusive owner of other half of property No. 17/44 (A), Tilak Nagar, New delhi also comprising 100 Sq. Yds. whereas in the said para in first line on Page 2 defendant No. 1 and 2 have been mentioned as exclusive owners of the other half. e. , 17/44 (B), Tilak Nagar, New Delh. ( 4 ) PERUSAL of the order shows that it is a typographical mistake and stands corrected in the last three lines of the same para where it is mentioned that the plaintiffs (I may mention here that the plaintiffs are husband and wife) became respective owners of two built up portions of the entire property No. 17/44a and 17/44b, Tilak Nagar, New Delhi, total comprising 200 Sq. Yds. So the typographical error on page-2 line 1 stands explained. It is however clarified that on page-2 line 1 it should have been plaintiff No. 1 is the owner of half of property No. 17/44 and plaintiff No. 2 is the owner of other half of the property No. 17/44. (Mark A and B were used just for identification. I may mention here that this typographical slip is not germain to the main grievance of the applicant. ( 5 ) IT is further argued that defendant No. 1 sold her half share to plaintiff No. 1 and defendant No. 2 sold his half share to plaintiff No. 2 (I may mention here that the defendants are also husband and wife ). ( 6 ) LEARNED counsel for the applicant has vehemently argued that the sale deeds are admitted by the defendants, therefore a decree should have been passed straightaway under Order XII Rule 6 CPC. ( 6 ) LEARNED counsel for the applicant has vehemently argued that the sale deeds are admitted by the defendants, therefore a decree should have been passed straightaway under Order XII Rule 6 CPC. This is the main grievance of the applicant. The learned counsel submits that at this stage the licence deeds alleged by the defendants should not be looked into because the plaintiffs are not relying upon the said disputed facts and only a partial decree is sought and the trial court should have passed the decree and ordered the defendants to hand over possession of the properties to the plaintiffs on the basis of the sale deeds. There is also a dispute about the application of the Limitation Act. ( 7 ) LEARNED counsel is aggrieved due to the observations regarding a separate oral agreement and a different consideration and has submitted that any oral agreement is hit by Section 91 and 92 of the Indian Evidence Act. Learned counsel has also in a way challenged other observations made in the order and has concluded the arguments by submitting that the cost of Rs. 20,000/- is on the higher side. ( 8 ) I am of the view that except for the typographical error mentioned and rectified above there is no other error apparent on the face of the record. The plea regarding Section 91 and 92 of the Indian Evidence Act has already been dealt with. It is already indicated in the order that nothing said therein will tantamount to expression of opinion on the merits of the case. I had passed a detailed order dealing with all the contentions and had found the petition to be frivolous and vexatious. ( 9 ) CONSIDERING all the facts and circumstances I do not find any merit in the application for review of the order on merits. However the cost is reduced to Rs. 10,000/ -. If the cost of Rs. 20,000/- has already been deposited rs. 10,000/- be refunded to the petitioner and if not deposited, then the same be deposited within two weeks and the receipt be placed on this file. Copy of this order be sent to the Secretary, Delhi High Court Legal Services Committee. It is again stated that nothing said herein will tantamount to expression of opinion on the merits of the case.