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2013 DIGILAW 1976 (ALL)

Ajay Goyal v. Satya Prakash Goyal

2013-07-30

PRAKASH KRISHNA, VIPIN SINHA

body2013
JUDGMENT Prakash Krishna and Vipin Sinha, JJ. Ref: Civil Misc. Recall Application No. 367950 of 2012 Heard Sri Chetan Chatterjee, Advocate in support of the present recall application filed under Section 151 C.P.C. read with section 141 of C.P.C.. The said application is accompanied with another application filed under Section 5 of the Limitation Act. 2. By means of the recall application, the applicant Smt. Pooja Garg, widow of late Sachin Garg wants to recall the judgment dated 18.10.2012 passed by a Division Bench of this Court after full contest. 3. The background facts may be noticed in brief: Original Suit No. 57 of 1999 was instituted by Satya Prakash Goel in respect of property known as property bearing Municipal No. 2/2406/214, Chandra Nagar, Saharanpur against Ajay Goel, Vinay Goel and Chandra Prakash Goel on the allegations that the defendants have unauthorizedly taken possession of the property in dispute. The suit was contested by them. Before the trial court, on the pleadings of the parties, number of issues were struck. Ultimately, the trial court by its judgment and decree dated 3rd March, 2012 decreed for recovery of possession by evicting the defendants and for recovery of damages @ Rs.3,000/- per month. The matter was carried in appeal in above appeal before this Court. The appeal after hearing the counsel for the parties, has been dismissed by the judgment dated 18.10.2012. 4. Present application has been filed by Smt. Pooja Garg for recall of the judgment passed in First Appeal principally on the ground that the property in dispute is her ancestral property. It was purchased by her predecessor by registered sale-deed dated 23rd May, 1934 by late Sri Lala Chandrabhan who died in the year 1990. She claimed herself owner and landlady of the property n question. It has been further stated that M/s Kumar & Company was the tenant of the property in question and after death of late Lala Chandrabhan who had let out the property, she became the owner and landlady thereof. In support of the application, she has filed photostat copies of the counterfoils of the rent receipts for the period of 1st April, 2010 to 30th April, 2012. On hearing the rumour that some decree has been passed against Ajay Goel and others, she came to know about the above litigation and filed the application for recall of the order. 5. On hearing the rumour that some decree has been passed against Ajay Goel and others, she came to know about the above litigation and filed the application for recall of the order. 5. At the very out set, a query was put to Shri Chetan Chatterjee, Advocate through whom the present application has been filed with regard to its maintainability. He submits that the application is maintainable under Section 151 of C.P.C. 6. In reply, learned counsel for the respondent submits that the application is not maintainable as Smt. Pooja Garg was not a party in the litigation and secondly, nothing was pending before this Court when the application was filed. 7. Considered the respective submissions of the learned counsel for the parties. 8. We are of the opinion that filing of present application is nothing but an abuse of process of the Court. Learned counsel for the applicant could not substantiate his argument that in a decided case, an application under Section 151 of C.P.C. like the present one can be filed. The only contention urged by him that the decree obtained by Satya Prakash Goel is collusive decree as plaintiff and defendants of the suit are admittedly uncle and nephews. The said argument has no substance as the suit and appeal were hotly contested. The suit was filed in the year 1999 and was contested by the defendants tooth & nail. The appeal before this Court was also contested by the parties. Except for making a bald statement that decree is collusive one, no material was placed before us to show that the decree is collusive one. Merely, the parties are relatives, it will not make a decree collusive. 9. In addition to above, we find that very heavy court fees amounting to Rs.1,66,083.00 has been paid in filing the appeal. Had there been any collusion, there was no occasion for the defendants to file the appeal challenging the decree passed by the court below. 10. The court cannot loose sight of one fact that the present application was filed as a device to see that the decree in the appeal is not prepared. The appeal was decided by the judgment dated 18.10.2012 but the office has not prepared the decree in pursuance thereof. 10. The court cannot loose sight of one fact that the present application was filed as a device to see that the decree in the appeal is not prepared. The appeal was decided by the judgment dated 18.10.2012 but the office has not prepared the decree in pursuance thereof. When the explanation was called from the office, it was reported by the office that immediately on receipt of the recall application, first appeal section called the record from decree section. The decree section, therefore, could not prepare the decree. We noticed that the case was listed on earlier occasions but it could not be taken up due to illness slips of the counsel for the applicant. All these circumstances do show as a matter of fact that the judgment-debtor and Pooja Garg are in collusion. Pooja Garg has been set up by the judgment-debtor so that there may be delay in execution of the decree. It will not be out of place to mention here that in the judgment itself this Court has noticed strong observations made by the Apex Court in Indian Council for Enviro - Leal Action Vs. Union of India, 2011 JT (8) SC 375; V. Chandrasekaran and another v. The Administrative Officer, JT 2012 (9) SC 260; and Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114 . 11. Before parting with the case, we direct the Registrar General to hold an enquiry as to why the decree in appeal could not be prepared within a reasonable time. It shall be open for him to depute any other officer of Registry for this purposes. He will take appropriate action against the erring officer. 12. We may place on record the fact that Smt. Pooja Garg has already filed a suit being Suit No. 854 of 2012, Pooja Garg v. Satya Prakash Goel & others in respect of property in dispute wherein she has valued the property at Rs.33,600/- while in the suit between Satya Prakash Goel v. Ajay Goel & others, the property has been valued at Rs.22,08,563/- and the court fees of Rs.1,66,083/- has been paid. This is also indicative of the fact that the judgment-debtor and Pooja Garg are hands in glove. 13. This is also indicative of the fact that the judgment-debtor and Pooja Garg are hands in glove. 13. Prima facie, it is unbelievable that the present applicant came to know passing of the judgment of this Court in the year 2012 and had no knowledge about the suit instituted in the year 1999. 14. The observations made herein with regard to collusion in between judgment-debtor and the present applicant, is tentative one for the purposes of disposal of present application. By way of clarification, it may be added that the said issues, if so raised, shall be considered in the light of the evidence by the trial court uninfluenced by any observation made herein above. 15. We do not find any merit in the application. The application is dismissed with cost of Rs.10,000/- payable by the applicant to the decree holder. The said amount shall be deposited within a period of one month before the court below in Suit No. 854 of 2012, Pooja Garg v. Satya Prakash Goel & others. In case, the applicant Smt. Pooja Garg fails to deposit the aforesaid amount within the aforesaid period, further proceedings in the aforesaid suit shall remain stayed.