Abhay Sapru vs Chitralekha Bukshi

After the judgment in the case was reserved on 28th April, 2008, the aforesaid three C Ms are purported to have been filed. The CM Nos. 11804/2008 & 11805/2008 were for staying the operation of the impugned order dated 7th January, 2008 passed by the learned Single Judge by virtue of which a preliminary decree of partition was passed in respect of the suit property against the Appellant.

The CM No. 11806/2008 was u/s 7 of the Court Fees Act, 1870 read with Sections 148, 149 and 151 of the CPC for taking up the application regarding the payment of ad valorem court fees.

The judgment in the appeal was pronounced in the appeal on 18th July, 2008 and the appeal of the Appellant was dismissed upholding the preliminary decree of partition of the suit property and also recording the concession of the learned senior counsel who had very fairly conceded that as on date only first floor is constructed, therefore, any construction raised by the Respondent No. 1 over and above the second floor and in accordance with the building bye-laws will be shared in equal proportion between the Appellant and Respondent No. 1.

These three C Ms were listed by the Registry on 22nd August, 2008 since the Court did not assemble on that date, the matter was adjourned to 5th September, 2008. On 5th September, 2008 none appeared for the parties, accordingly, in the interest of justice the C Ms were adjourned to be listed on 17th October, 2008.

On 17th October 2008, the learned Counsel for the Respondent was present, although, there was no appearance for the Appellant. After hearing the learned Counsel for the Respondent the orders on the three C Ms were reserved. While the orders on these three C Ms were reserved, the Appellant has filed a fresh application bearing No. 17451/2008 wherein the Appellant has prayed for clarifying the order dated 17th October, 2008, as to how, the judgment has been reserved in the matter on 17th October, 2008, as the matter has been already been decided on 18th July, 2008. It has also been prayed in the CM that on investigation by the learned Registrar General of this Court, be ordered as to why, and upon whose order these C Ms, namely, CM Nos. 11804/2008, 11805/2008 and 11806/2008 were not listed in the months of May and July, 2008.

We have heard the Appellant, who is present today in Court on the application bearing No. 17451/2008. We have also gone through the record. So far as the CM Nos. 11804/2008 to 11806/2008 are concerned, the same do not warrant passing of any order in view of the fact that this Court vide a detailed judgment has already dismissed the appeal of the Appellant and upholding the preliminary decree of partition having been passed against the Appellant by the learned Single Judge.

So far as the present C Ms bearing No. 17451/2008 is concerned, wherein the Appellant has sought clarification as to how the judgment is reserved on 17th October, 2008 while as the same has been pronounced on 18th July, 2008, it seems on account of an inadvertent typographical error, the word ''Judgment'' has been written in the order dated 17th October, 2008 while as the word ''order'' ought to have been on the application bearing CM No. 11804/2008 to 11806/2008 was reserved. The order in these applications was reserved on account of the fact that there was no appearance on behalf of the Appellant and the Court had to go through the record of the case and the application and that is the reason why the order was reserved. To this extent order dated 17th October, 2008 stands clarified.

One of the prayers of the Appellant in CM bearing No. 17451/2008 is that an inquiry into the non-listing of the aforesaid C Ms be directed to be conducted by the learned Registrar General of this Court.

We feel that this is the difficulty which is faced by the Court where a Petitioner or an Appellant appears in person who is not conversant with the procedure of the Court. The Appellant has made certain averments that he had approached certain officials of the Registry who had assured him that the applications have been cleared yet they were not listed. Since the Appellant was conducting the case in person, he ought to have followed the same and got them listed rather than sleeping over the same. In any case, it is too late to pass any order either on the applications 11804/2008 to 11806/2008 or even to order an enquiry into the non-listing of the same. it would be tantamount to flogging a dead horse. The Appellant seems to be in the habit of making wild allegations both oral and as well as in written as we had seen the Appellant doing so even during the hearing of the matter which was conducted by him personally. The stand of the Appellant seems to be cantankerous in nature. We do not find any justification of directing of holding of any inquiry in the matter of non listing of these C Ms.

We, accordingly, dismiss CM No. 17451/2008.