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Paramount Enterprises Ltd. & Others v/s S.D. Surie (D) Thr. L.Rs.

    C.A. No. 6217 of 2012 (Arising out of SLP (C) No. 32319 of 2011)

    Decided On, 31 August 2012

    At, Supreme Court of India

    By, THE HONOURABLE MR. JUSTICE R.M. LODHA & THE HONOURABLE MR. JUSTICE ANIL R. DAVE

    For the Appearing Parties: ----------



Judgment Text

R.M. Lodha, J.

Leave granted.

2. The present Appellants are the Defendant Nos. 1 to 8 in the suit filed by Lt. Col. S.D. Surie (since deceased), now represented by his legal representatives who are Respondent Nos. 1 to 4 in the appeal and shall be referred to collectively as 'plaintiff hereinafter.

3. The original Plaintiff filed a suit for declaration claiming that the alienation and sale certificate of property No. 6, Amrita Shergil Marg, New Delhi was void, illegal and ineffective qua his 1/3rd share in the propert

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y.

4. An application (I.A. No. 516 of 1994) was made by the original Plaintiff seeking amendment in the plaint in 1994 whereby alternative prayer for partition was sought to be added. The application was granted on May 26, 2006. As per the order passed by the Court on May 26, 2006, the amended plaint was to be filed within two weeks therefrom and the Defendant Nos. 1 to 8 were permitted to file their amended written statement within four weeks of the filing of the amended plaint. The fact of the matter is that within two weeks from May 26, 2006, the amended plaint was not filed and it was filed on February 7, 2007. The explanation for delay in filing the amended plaint is that Defendant No. 9 was impleaded and some error crept in the order passed by the Court on May 26, 2006 which was corrected on February 2, 2007.

5. Be that as it may, the Defendant Nos. 1 to 8 did not file the amended written statement within the time granted by the court and also for some time thereafter.

6. On April 8, 2008, the Trial Judge closed the right of the Defendant Nos. 1 to 8 in filing their written statement to the amended plaint.

7. An application (IA No. 3637 of 2009) was made by the Defendant Nos. 1 to 8 under Section 151 of Code of Civil Procedure, 1908 for recalling the order dated April 8, 2008.

8. The Trial Judge in the High Court allowed the above application on September 8, 2009 and directed that the amended written statement by Defendant Nos. 1 to 8 be taken on record on their paying costs of Rs.50, 000/- to the Plaintiff within three weeks therefrom.

9. The order dated September 8, 2009 was challenged by the present Respondent Nos. 1 to 4 in an intra court appeal. The Division Bench of the High Court allowed the appeal on September 19, 2011 and set-aside the order dated September 8, 2009.

10. It is from this order that the present appeal has arisen.

11. The issue regarding the maintainability of intra court appeal was raised by the present Appellants (defendant Nos. 1 to 8) before the Division Bench of the High Court. The Division Bench was, however not impressed by the objection on two grounds: (i) impugned order was in the nature of a review of the order dated 8th April, 2008. A order granting review is an appealable order under Order XLVII Rule 7 of the Code of Civil Procedure and thus appeal was maintainable and (ii) order dated 8th April, 2008 sought to negate valuable rights that had accrued and vested in the Appellants when the Defendant Nos. 1 to 8 did not prefer an appeal against the order dated 8th April, 2008 closing its right to file a written statement to the amended plaint.

12. Even if it be assumed that the order dated April 8, 2008 was appealable but that did not preclude the Defendant Nos. 1 to 8 to make an application for recalling the order under Section 151 of the Code of Civil Procedure , 1908 as they were gravely prejudiced by closure of their right of filing amended written statement. The Trial Judge of the High Court was persuaded to recall the order dated April 8, 2008 in the interest of justice. Once the inherent power was exercised by the Trial Judge under Section 151 of Code of Civil Procedure, 1908, we are afraid in an intra court appeal, there was no justification for interference in the just order that advanced the cause of justice.

13. The Trial Judge in the High Court took 12 years in disposal of the application for amendment in the plaint. After the application was granted, the Plaintiff took more than seven months in filing the amended plaint. The progress in the suit had not taken place after the amended plaint was filed. Though there was some negligence on the part of the Defendant Nos. 1 to 8 in not filing the amended written statement swiftly, the Trial Judge was satisfied that the inconvenience to the Plaintiff could be compensated by award of cost of Rs.50, 000/- and exercised discretion and permitted the Defendant Nos. 1 to 8 to file amended written statement within three weeks. We are afraid, there was no justification at all for the appellate Bench to interfere in an eminently just order.

14. Mr. Ashok Sethi, learned Counsel for the Plaintiff cited the decisions of this Court in Nainsingh v. Koonwargee and Ors., AIR 1970 SC 997; State of U.P. and Ors. v. Roshan Singh (D) by L.Rs. and Ors., AIR 2008 SC 1190 : 2008 (1) SCALE 487 and K.K. Velusamy v. N. Palanisamy, (2011) 4 SCALE 61. However, we find that in the fact situation of the present case, none of the above decisions has any application.

15. For the above reasons, we set-aside the judgment and order dated September 19, 2011 passed by the Division Bench of the Delhi High Court and restore the order of the Trial Judge passed on September 8, 2009. The payment of Rs.50, 000/- shall now be paid by the Defendant Nos. 1 to 8 to the Plaintiff and amended written statement shall be filed within three weeks from today.

16. Appeal is allowed as above with no order as to costs.
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