Devender and Others vs Vinman Construction Pvt. Ltd. and Others

Rajiv Narain Raina, J.—The application to advance the date of hearing is allowed. The matter is taken on board for final disposal by consent. Heard the learned counsel for the parties.

This petition has been filed under Article 227 of the Constitution of India against an interim order passed ex parte on 2.3.2013 by the learned Additional District Judge, Gurgaon in an appeal against the order of the learned trial Court dated 1.3.2013 allowing the application of the plaintiff under Order 39 Rule 1-2 read with Section 151 CPC. This petition has been filed after one year and 3 months of the passing of the order. Since the order is only interim and does not determine rights of the parties, the petition is premature.

This Court in CR No. 646 of 2014; Jasvir Singh v. M/s. Curo India Pvt. Ltd. and others has held that even in a petition under Article 227 of the Constitution of India, the question of limitation, delay and laches can well arise and the limitation prescribed in erstwhile jurisdiction under Section 115 CPC still remains a light house for proceeding under Article 227 of the Constitution of India. Therefore, the parties are expected to explain the delay in approaching the Court before they are entitled to be heard on interim orders. It was held by this Court in the aforesaid case as under:-

"Though there is no limitation prescribed in presenting a revision petition under Article 227 of the Constitution of India but the question of delay and laches remains alive just as it is in the jurisdiction exercised by this Court under Article 226 of the Constitution. In the erstwhile jurisdiction exercised by this Court under S. 115 CPC the prescribed period of limitation for filing revision petition was 90 days without sufficient cause shown thereafter any further delay had to be explained by showing sufficient cause seeking condonation of delay. Consequent upon the amendment carried out in the CPC effective from 01st July, 2002 such petitions are filed under Article 227 and I see no common law reason why the rigours of limitation under S. 115 CPC should not remain a lighthouse for entertaining petitions under Article 227. There should at least be an explanation for delay and it cannot be taken for granted that this Court would ignore principles of delay and laches and yet intervene in the matter after one year and four months."

There is neither an application for condonation of delay nor any averments available on record explaining reasons why it took one year and 3 months for the petitioner to approach this Court against the order passed by the lower appellate Court.

Be that as it may, the question still remains that the petition is after all only against an interim order. The petitioner had sufficient time to have impressed upon the lower appellate Court that ex parte stay of the order of temporary injunction passed by the trial Court was not appropriate in this case. This shows that the petitioner still has to approach the lower appellate Court and make an appropriate application in the appeal and pray that the appeal itself may be heard at an early date.

No ground for interference much less under Article 227 of the Constitution is made out against the order dated 2.3.2013. The issue of mortgage and redemption of mortgage are open to be canvassed in the appeal.

Mr. Bali has referred to a Full Bench decision of this Court in Ram Kishan and Others Vs. Sheo Ram and Others, where it is held that no period of redemption is fixed and mortgagees do not become owners by prescription. Once a mortgage always a mortgage and remains always redeemable. For the aforesaid reasons, the petition is dismissed with the liberty aforesaid.