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Judgment
Heard on the review application (MCC No. 443/2017) and the delay condonation application (CLMA No. 5300/2017) supported with the affidavit. Delay of 23 days in filing the review application is hereby condoned on the grounds stated in the affidavit.
These applications have been presented by Smt. Kavita Kothari seeking the review of the judgment and order of this court dated 23.3.2017 praying for setting asidal of such order and in alternate it has been prayed that such order should be modified to the extent of directing the parties to maintain the status quo over the disputed property qua nature and possession.
Having heard the learned counsels Mr. Siddhartha Singh on behalf of the review applicant as well as Mr. Tarun Lakhera on behalf of the plaintiff/appellant, it transpires that initially an original suit no. 84/2012 was instituted by Shri Navneet Karnwal against Shri Dinesh Kothari as well as Shri Jasveer Singh seeking the prohibitory injunction against them, restraining them not to interfere in the peaceful possession of Mr. Karnwal over the property nos. 61 & 61/1.
The case of Mr. Navneet Karnwal was that such property came in his possession pursuant to registered agreement to sale dated 02.6.2012 by Shri Jasveer Singh, the original owner of the property. Mr. Singh settled the total consideration of Rs. 1.35 crore, whereagainst 0.45 crore (viz. 45 lakhs) were given by Mr. Karnwal to Mr. Jasveer Singh. The learned Trial Court rejected the application 6C2 refusing to pass any interim injunction vide order dated 31.3.2016, which was challenged in the appeal no. 271 of 2016 before this court.
After hearing the learned counsels of the parties, this court passed the order dated 23.3.2017 under review, whereby the appeal was disposed of passing the restrainment order against the defendants from interfering with the possession of Mr. Navneet Karnwal and the parties were further restrained from creating any third party interest or encumbrance over the disputed property in any manner whatsoever. Such order was passed on the premise that although any document, whereby title or right on the immovable property is created, is required to be registered under Section 17 of the Registration Act, but the court should not remain in oblivion of the fact what is pervading in the society all around entailing that the practice and exercise by the sellers is to receive part of the consideration from the prospective purchaser without issuing any receipt therefor, and without executing any registered agreement to sale.
Smt. Kavita Kothari, though is the wife of the respondent Shri Dinesh Kothari and he was being represented by his Advocate before this court while passing the impugned order under review but, the fact remains that she has the distinct and separate identity from her husband and she purchased the property in question from
Shri Dinesh Kothari, who was the power of attorney holder conferring rights on him to execute the sale deeds by Shri Jasveer Singh for property no. 61 and by Smt. Parvinder Kaur, wife of Shri Jasveer Singh for property no. 61/1 and that is why an application was moved by Mr. Karnwal on 14.9.2016 seeking the amendment in the pleadings. By such amendment Shri Karnwal sought the impleadment of Smt. Kavita Kothari as a necessary party and such amendment was allowed by the order dated 08.12.2016.
That apart, in such amendment application, two registered sale deeds, executed on 25.01.2016 by Shri Dinesh Kothari as a power of attorney holder, were also challenged and the cancellation of both these sale deeds were also sought. Such amendment was also allowed by the same order dated 08.12.2016.
Therefore, the fact is clear that Shri Karnwal was well aware about the impleadment of Smt. Kavita Kothari as a necessary party in the whole litigation as well as the execution of the sale deeds in her favour pertaining to the property in question but, no step was taken by Shri Karnwal for impleading Smt. Kavita Kothari in the appeal no. 271/2016 before the court. He did not brought it into notice of this court regarding the execution of the two sale deeds as indicated above by Shri Dinesh Kothari (although her own husband but as a power of attorney holder of the original owner Shri Jasveer Singh and his wife Smt. Parvinder Kaur) while these facts were well within his knowledge and that is why he had got his plaint of O.S. No. 84/2012 amended before the Trial Court
So, this review application has been moved by Smt. Kavita Kothari and the learned counsel on her behalf has vehemently stressed the opening word of Order 47 Rule 1 which deals with the subject review in the Civil Procedure
Court. These opening words are "any person considering himself aggrieved".
He has further drawn the attention of this court that beside any person all other persons who feel themselves aggrieved by the order under review, which was not within their knowledge, can come forward before the court seeking the review of such order. So, this review application has not been moved by any of the party who were in the array of the appeal preferred by Shri Navneet Karnwal.
It has been submitted by the learned counsel of the review applicant that after execution of the sale deeds dated 25.01.2016 infact, she is in the possession of the whole property in question which is being displayed by the number of photographs presented with the review application (Annexure-4).
Besides, after purchasing of such property she is paying the electricity bills and bills of Jal Sansthan, which have been issued by concerned offices.
In addition to, after purchase of such property she applied for mutation in the Nagar Palika, Rishikesh. Notices were sent by the executive officer and mutation was affected in her name (Annexure-3).
Fortiori, when her possession was interfered with by Shri Karnwal at the strength of the order of this court dated 23.3.2017, she moved an application to the Sub- Divisional Magistrate, Rishikesh, requesting his indulgence and seeking protection.
The SDM called the report of Nayab Tehsildar wherein it was found that the property in question is a two- storied building, which was purchased by Smt. Kavita Kothari as have been indicated above and after purchase of such property, she let out the first storey of such building
to the four tenants namely Tulsi Prasad, Preeti Vishnoi, Krishna Mohan and Sanjeev Kumar, by way of executing the lease deeds in favour of each and such four lease deeds have been filed along with the review application.
Therefore, it is abundantly clear that the property in question is not in the possession of Mr. Navneet Karnwal and the impugned order dated 23.3.2017 was passed unwitting of this fact because Shri Karnwal did not implead Smt. Kavita Kothari as a necessary party in this appeal as he did in the original suit.
In other words, the full facts remain concealed before this court which could have been best revealed by Shri Karnwal. Although, Shri Dinesh Kothari was also the respondent no. 1 in the appeal but, he too could not reveal such facts for the reasons best known to him
Now, I come to the legal position, which have been highlighted by the Hon''ble Apex Court in its own judgment '' Gangadhara Palo vs. Revenue Divisional Officer & another '' reported in 2011 (113) RD Page 273.
In the present controversy, the order of this court dated 23.3.2017 was challenged by Shri Dinesh Kothari by way of filing the SLP no. 11719/2017 and the Hon''ble Apex Court vide order dated 21.4.2017 dismissed the same by passing the following order:
"Heard learned Senior Counsel appearing for the petitioners. We find no reason to entertain this special leave petition, which is, accordingly, dismissed. However, we request the Trial Court to expedite hearing of the suit pending before it. Pending application (s), if any, stands disposed of." 17. It was argued by the learned counsel of the review applicant that the Hon''ble Apex Court has not disclosed any reason to dismiss the SLP, therefore, the law laid down in the precedent of Gangadhara Palo case is applicable in the matter. Paragraph 8 & 9 of such judgment of the Hon''ble Apex Court are worthy to be reproduced as under:
"8. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.
The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court."
In my opinion since no reason has been highlighted by the Hon''ble Apex Court while dismissing the SLP hence, this review petition is entertainable and it is specially more for the reason that the full facts were not before this court while passing the order dated 23.3.2017, which was primarily the duty of Shri Navneet Karnwal-the appellant/plaintiff because he was seeking the relief from
the court. So, he was under the bounded duty to disclose that Smt. Kavita Kothari had been impleaded on the amendment application moved by him on 14.9.2016 and by the order of the learned Trial Court dated 08.12.2016 wherein, he has also challenged the two sale deeds in favour of Smt. Kavita Kothari.
The Court is not inclined to enter into the controversy regarding the validity of these sale deeds because it will affect the findings of the learned Trial Court but the fact remains that the property in question is not in the possession of Shri Navneet Karnwal and it is in the direct as well as constructive possession of Smt. Kavita Kothari. Therefore, I find it appropriate reason to review my order dated 23.3.2017 and it is hereby modified to the extent that both the parties shall maintain the status quo, qua nature and possession of the property in question till the original suit no. 84/2012 is adjudicated by the learned Trial Court.
LCR be sent back.