Full Judgment Text
2022:DHC:1859
$~1 (SB)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of Decision: 10 May, 2022
+ RSA 52/2020
PHOOL WATI (DECEASED) THR LRS ..... Appellant
Through: Mr. Sharvan Dev, Advocate.
(M:7703894232)
versus
OM PRAKASH (DECEASED) THR LRS & ANR ..... Respondents
Through: Mr. Nilesh Sawhney with Mr.
Shivam, Advocates (M: 9873176033)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done through hybrid mode.
REVIEW PET. 58/2022
2. The present petition seeks review of order dated 30th November,
2021 on the ground that there are substantial questions of law that have been
raised in the second appeal and the same could have been dismissed only for
non-prosecution and not on merits, due to non-appearance of ld. Counsel for
the Appellant. Reliance is placed on the judgment of the Supreme Court in
Prabodh Ch. Das & Ors. v. Mahamaya Das & Ors. [AIR 2020 SC 178] .
3. Ld. Counsel for the Appellant submits that the substantial questions of
law were set out in the memorandum of appeal and the same deserves to be
considered and decided on merits.
4. On the other hand, ld. Counsel for the Respondents submits that there
is no error apparent on the face of the record which has been shown by the
RSA 52/2020 Page 1 of 6
2022:DHC:1859
Appellant. Hence, the present review petition is not maintainable.
5. A perusal of the present second appeal would show that the appeal
arises out of a preliminary decree of partition dated 28th February, 2018
passed by the ASCJ, Rohini Courts, in respect of property bearing Plot
No.101-A, Malik Pur Village, Near Model Town-I, Delhi-110009. The
operative portion of the said preliminary decree reads as under:
“A) A preliminary decree for Partition is passed
whereby the LRs of plaintiff as well as LRs of
defendant no. 1 are entitled to the extent of 1/ 2 share
each in the undivided suit property i.e. plot bearing No.
101-A, Malikpur Village, Near Model Town-I, Delhi-
110009.
(B) A preliminary decree for rendition of account of
the income of the,suit property i.e. plot bearing No.
101-A, Malikpur Village, Near, Model Town- I, Delhi-
110009 is passed in favour of LRs of plaintiff.
(C) A decree of mandatory injunction is passed in
favour of LRs of the plaintiff against the defendant no.
2 whereby defendant no. 2 is directed to show plaintiff
along with the defendant as the assesee for the house-
tax of the property/plot bearing no. 101-A, Malikpur
Village, Near Model Town-I, Delhi-110009 in its
records.
D) LRs of defendant no, 1 are permanently restrained
from creating any third party interest in the suit
property or even otherwise from ---- with the
possession of the suit property.”
6. As per the above decree, the Plaintiff and Defendant No.1 through
LRs have been held to be entitled to ½ share each of the suit property. The
above decree dated 28th February, 2018 was assailed in first appeal which
was also rejected by the first Appellate Court on 8th November, 2019. The
operative portion of the said order dated 8th November, 2019, reads as
RSA 52/2020 Page 2 of 6
2022:DHC:1859
under:
“17. Now coming to the argument of Ld.Counsel for
the appellant that the Ld. Civil Judge has passed the
decree of rendition of accounts without any evidence
being lead on behalf of plaintiff. It is clarified that the
Ld. Civil Judge has only passed the preliminary decree
for rendition of accounts on the basis of admission qua
the receipt of rent by defendant no.l. The Ld. Civil
Judge has rightly listed the matter for rendition of
accounts for further enquiry.
18. There is no infirmity in the judgment and decree
dated 28.02.2018. The judgment and decree dated
28.02.2018 and findings on all the issues given vide
said judgment is upheld. The appeal being devoid of
any merits is dismissed.”
7. The present second appeal was filed by the Appellant on 4th March,
2020. The matter was listed for the first time on 11th March, 2020. On the
said date, the following order was passed:
“ CM APPL. 9368/2020 (for exemption)
Allowed, subject to all just exceptions.
Application is disposed of.
CM APPL. 9369/2020 (for delay)
The delay of 19 days in re-filing the appeal is
condoned. Application is disposed of.
RSA 52/2020 & CM APPL. 9367/2020 (for stay)
The Caveator is present.
Let the trial court record of Suit No.59892/2016
titled Om Prakash Through LRs & Anr. v. Smt.
Phoolwati Through Her Legal Heirs & Anr. and RCA
No. 38/2018 titled Smt. Phoolwati Through LRs v. Om
Prakash Through LRs & Anr. be summoned.
In the meantime, the restraint order restraining
the Appellant from alienating or parting with
possession of the property shall continue to operate.
The said order would also apply qua Respondent No.
RSA 52/2020 Page 3 of 6
2022:DHC:1859
1/Plaintiff.
The Trial Court proceedings shall remain stayed
as the present appeal is against the preliminary decree
of partition.
List on 24th August, 2020.”
8. Thereafter, the Trial Court record was received by this Court. On 17th
August, 2021 none appeared for the Appellant. On 30th November, 2021
again none appeared for the Appellant. The Court was also informed that by
the time the present second appeal was listed before this Court, a final
th
decree had already been passed on 26 February, 2020. In the said final
decree, the Trial Court had considered the Local Commissioner’s report on
the issue of partitioning the property by metes and bounds. On the said issue,
the Defendants themselves suggested certain modifications. Since the
Defendants had themselves suggested modifications and the Court was not
informed of all these facts on the date when the matter was listed for the first
time, this Court was of the opinion that no substantial question of law would
arise in the present second appeal. Once the final decree of partition was
passed and the Appellant was suggesting modes of partition, the second
appeal challenging the preliminary decree was itself rendered infructuous.
9. Accordingly, the second appeal was rejected on both grounds i.e., that
the subsequent developments showed that the Defendants had partly agreed
to the Local Commissioner’s reports and suggested modifications, and
secondly, that there were no substantial questions of law arising out of the
present second appeal.
10. In the judgment in Prabodh Ch. Das (supra) , the matter had been
listed for hearing on several dates and High Court had decided to hear the
appeal on merits. The relevant portion of the said judgment is extracted
RSA 52/2020 Page 4 of 6
2022:DHC:1859
hereinbelow:
“It is evident from the materials on record that the
appeal was listed for hearing several times. When the
matter was taken up for hearing on 21.01.2015,
learned counsel for the appellants/defendants was not
present to argue the matter and no request was made
on his behalf. Therefore, the High Court proceeded to
decide the appeal on merits itself. After consideration
of the materials on record, the High Court dismissed
the appeal on merits.”
11. In Kirpa Ram (Deceased) through Legal Representatives & Ors. V.
Surendra Deo Gaur & Ors. [AIR 2021 SC 57] , the Supreme Court has held
as under:
“23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High Court
if it is satisfied that the case involves a substantial
question of law. The substantial question of law is
required to be precisely stated in the memorandum of
appeal. If the High Court is satisfied that such
substantial question of law is involved, it is required to
formulate that question. The appeal has to be heard on
the question so formulated. However, the Court has the
power to hear appeal on any other substantial question
of law on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the Appellants
are found to be arising in the case, only then the High
Court is required to formulate the same for
consideration. If no such question arises, it is not
necessary for the High Court to frame any substantial
question of law. The formulation of substantial
question of law or reformulation of the same in terms
of the proviso arises only if there are some questions of
law and not in the absence of any substantial question
of law. The High Court is not obliged to frame
RSA 52/2020 Page 5 of 6
2022:DHC:1859
substantial question of law, in case, it finds no error in
the findings recorded by the First Appellate Court.”
12. In the present case, the substantial questions of law were yet to be
even framed in the matter. The second appeal was not yet admitted. The
dismissal of the second appeal took place prior to the framing of the
substantial questions of law.
13. Under such circumstances, this Court does not find any reason to
entertain the present review petition. The same is, accordingly, dismissed.
14. The present order, however, shall not affect the Appellant’s rights in
th
the appeal against the final decree of partition dated 26 February, 2020,
which is stated to have been filed by the Appellant.
PRATHIBA M. SINGH
JUDGE
MAY 10, 2022
dj/ad
th
(corrected & released on 12 May, 2022)
RSA 52/2020 Page 6 of 6