Full Judgment Text
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Decided on:13 May, 2019
+ C.R.P. 96/2019
MOHD RAFAT KHAN ..... Petitioner
Through: Petitioner in person
versus
M/S TECHINFO SOLUTIONS PVT LTD & ORS. ..... Respondent
Through: None.
CORAM:
HON’BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
%
1. The revisionist has challenged a judgment dated 15.03.2019 by
which the Trial Court has dismissed his application for recall of an order
dated 14.09.2017 (by which he had withdrawn an application for review of
a judgment dated 28.09.2016), and allowing his application for refund of
excess court fees, but without interest thereupon.
2. The revisionist filed a suit in the year 2013, against the respondents
herein, claiming damages on account of defamation and distress. The
defamation alleged by the revisionist included statements made by the
respondents in the course of legal proceedings. The suit was dismissed by a
judgment of the Trial Court dated 28.09.2016 holding that, to the extent the
revisionist relied upon statements contained in written statements and other
pleadings filed by the respondents, they were entitled to absolute privilege.
The Trial Court also held that the suit of the plaintiff was barred by
limitation.
C.R.P. 96/2019 Page 1 of 6
3. The revisionist filed an application for review of the aforesaid
judgment, which was dismissed as withdrawn by an order dated 14.09.2017
with the following observations:
“Applicant submits that he does not want to proceed
with the present application U/O 47 Rule 1 r/w Section 114,
151 & 152 CPC for review of judgment dt. 28.09.2016 as he
intends to approach Hon’ble Delhi High Court against the
said judgment as such he be allowed to withdraw the present
application. Separate statement of applicant recorded to this
effect.
In view of the statement of applicant, the application
U/O 47 Rule 1 r/w Section 114, 151 & 152 CPC for review of
judgment dt. 28.09.2016 stands dismissed as withdrawn.
At this stage, applicant submits that his another
application u/Section 151 CPC for return of extra court fee
paid by him is also pending for disposal.
Put up the matter for consideration on said application,
on 1.11.2017.”
The statement of the revisionist, recorded in Court on 14.09.2017,
was as follows:
“14.09.2017
Statement of Mohd. Rafat Khan, s/o Mr.Mohd. Zaheer Khan,
r/o A 64, Ashoka Enclave II, Sector 37 Faridabad.
On SA:
I do not want to proceed with the present application
u/O 47 Rule 1 r/w Section 114, 151 & 152 CPC for review of
judgment dt. 28.09.2016 as I indent to approach Hon’ble Delhi
High Court against the said judgment. I may be allowed to
withdraw the present application.
RO & AC
Sd/- Sd/-
(Applicant) ADJ-02: Dwarka Courts
New Delhi/14.09.2017”
C.R.P. 96/2019 Page 2 of 6
4. After withdrawal of the review application, the revisionist
approached this Court under Article 227 of the Constitution, challenging
the judgment dated 28.09.2016. The said petition [CM(M) 1439/2017] was
dismissed by the following order dated 13.03.2018:
“The civil suit (Suit No.516800/2016) of the petitioner
against the respondents instituted on 15.01.2013 for recovery
of damages of Rs.19,72,000/- on account of defamation and
distress was dismissed by the additional district judge (ADJ)
by judgment dated 28.09.2016 on the basis of findings
returned on two issues (issues nos. 4 and 6) treated as
preliminary issues, they including the question of limitation, it
having been held that the suit was barred by limitation.
The petitioner has sought to challenge the judgment
dated 28.09.2016 of the trial court by the present petition
invoking the supervisory jurisdiction of this court under Article
227 of the Constitution of India.
The question of propriety of filing the present petition
under the writ jurisdiction in the face of statutory remedy of
regular appeal arose. By order dated 18.12.2017, the
petitioner, who claims to be a law graduate conversant in law
insisting on representing his case, was asked to address the
court on the issue of maintainability. He has submitted brief
submissions which have been taken on record. He relies on
Jagdamba Industries vs. Krishan Pratap, ILR (2011) II Delhi
122, the focus of his arguments being that the trial court has
fallen into error by treating disputed questions of facts as
preliminary issues and has failed to adjudicate upon the other
issues.
Pertinent to note the decision in Jagdamba Industries
(supra) was rendered on an appeal presented under Section 96
of the Code of Civil Procedure, 1908 (CPC). The contentions
about propriety of treating questions of fact (assuming the
submissions of the petitioner in this regard are correct) as
preliminary issues and leaving the other issues unaddressed
can also be adjudicated in the course of regular appeal under
C.R.P. 96/2019 Page 3 of 6
Section 96 CPC which, given the fact that the suit stands
dismissed, is the appropriate remedy.
The petition and the application filed therewith stand
dismissed with above observations.”
5. However, instead of filing an appeal against the judgment dated
28.09.2016, the revisionist approached the Trial Court for recall of the order
dated 14.09.2017 and restoration of his application for review. In the said
application for recall, the revisionist has contended that he had withdrawn
the review petition on account of the observations of the Court hearing the
review application that court fees have to be paid in excess of ₹2, which,
according to the revisionist, was the court fee payable.
6. By the impugned order, the Trial Court has recorded that at the time
the review application was dismissed, the statement of the revisionist was
recorded that he did not wish to proceed with it. The Trial Court has also
noticed the aforesaid order dated 13.03.2018, passed by this Court, wherein
it has been specifically observed that the proper remedy for the revisionist
would be to file a regular appeal against the judgment dated 28.09.2016.
The Trial Court has held that the application for recall was also filed
beyond the time prescribed by the Limitation Act, 1963. In addition to these
observations, the Trial Court has also considered the revisionist’s
contentions (although the said contention is not borne out of the order dated
14.09.2017) that he had withdrawn the review application in view of an
observation of the Court hearing the same that he would have to pay court
fees equal to one-half of the fees leviable on plaint or the memorandum of
appeal.
C.R.P. 96/2019 Page 4 of 6
7. Having heard the revisionist in person, I am of the view that the
application for recall of the order dated 14.09.2017, filed by the revisionist,
was itself misconceived. Having approached this Court, under Article 227
of the Constitution, and this Court having dismissed the said petition on the
ground that the issues raised ought to be raised by him in the course of a
regular appeal, the revisionist ought to have taken recourse to that remedy
instead of seeking to revive the review application, which he had already
withdrawn. The order of the Trial Court dated 14.09.2017 and the
statement of the revisionist recorded on that day do not make reference to
any controversy regarding the court fees payable in an application for
review, but record the revisionist’s statement that he intended to approach
this Court against the judgment dated 28.09.2016. The revisionist did just
that and his petition was dismissed on 13.03.2018. It is not open to the
revisionist to thereafter raise an argument that his review application had
been withdrawn on an erroneous appreciation of the legal position. This
ground raised by the revisionist is, therefore, rejected.
8. The second prayer prayed by the revisionist is for award of interest
on the amount of excess court fees which was directed to be refunded by
the impuged judgment. The revisionist filed an application on 10.03.2014,
for refund of excess court fees of ₹ 39,950/- in accordance with the Court
Fee (Delhi Amendment) Act, 2012, which was struck down by the
judgment of this Court dated 09.10.2013 in W.P.(C) 4770/2012 ( Delhi High
Court Bar Association and Anr. vs. Govt. of NCT of Delhi and Anr. ). By the
impugned judgment, this application was allowed but no interest has been
ordered upon the excess court fees.
C.R.P. 96/2019 Page 5 of 6
9. The revisionist is unable to point out any provision of the statute by
which interest is payable on excess court fees. In fact, the application dated
10.03.2014 made by the revisionist for this purpose also did not contain any
such prayer. In view of the aforesaid, this ground of revision is also
rejected.
10. In view of the aforesaid, the revision petition is dismissed. However,
it is made clear that the revisionist is at liberty to challenge the judgment
dated 28.09.2016 by way of a regular appeal which will be considered on
its own merits, subject to satisfaction of the Court on the point of limitation.
Dasti.
PRATEEK JALAN, J
MAY 13, 2019
‘j’/s
C.R.P. 96/2019 Page 6 of 6