Raj Dulari & Ors. v. Surinder Kaur & Ors.

1. This order shall dispose of an application filed by the defendant No.12 seeking review of the order dated 07.05.2010 passed in IA Nos.13253/2009 & 12187/2009.

2. Briefly stated the facts as given in the order dated 07.05.2010 are that the suit relates to the property owned by late Sh.Gurbaksh Singh. It was the case of the plaintiffs that when Sh.Gurbaksh Singh died on 10.11.1961, he had left behind a registered Will dated 26.04.1960. This Will was got probated {Probate Case No.1/1962} and the suit property 2014:DHC:2648 bearing No.D-16, Niazmuddin (East), New Delhi was got mutated in favour of the grand sons who were the beneficiaries under the Will. The children of the daughters of the late Sh.Gurbaksh Singh were excluded. The property was subsequent thereto sold to the applicant/defendant No.12 namely BDR Builders and Developers Pvt. Ltd. This court at the time of issuing summons had restrained the defendants from parting with possession or creating third party rights in respect of the suit property which order continued to be in operation till the IA No.12187/2009 (u/O

3. Before deciding these two applications, the defendant No.12 who was the builder and the purchaser of the suit property had stated that he was a bona fide purchaser of the suit property from the beneficiaries namely the grand sons of late Sh.Gurbaksh Singh in terms of his Will which was got probated from Alwar where the testator had died. He had also stated that although the present suit was filed by the children of the daughters of late Sh.Gurbaksh Singh, they had also simultaneously filed a petition for revocation of the probate granted by the Alwar court and the defendant No.12 being a bona fide purchaser had given a statement that they are prepared to furnish an undertaking to the effect that any prospective purchaser to whom the property would be sold will be duly informed about the pendency of the case so that the purchaser is not taken by surprise about the pendency of the present matter. This statement was made by Sh.Harish Malhotra, the learned senior counsel appearing for the defendant No.12, on instructions from the defendant No.12. The learned senior counsel for the defendant No.12 also stated that in order to dispel the fear of the plaintiffs, he was ready to furnish an undertaking to the effect that any prospective purchasers etc. would be informed about the pendency of the present suit.

4. When the order dated 07.05.2010 was passed by this court disposing of the IA No.12187/2009 (u/O 39 R 1 & 2 CPC) and IA No.13253/2009 (u/O 39 R 4 CPC), the former application was disallowed and the order of stay was vacated on the ground that the interest of the plaintiffs was sufficiently protected by the undertaking filed by the defendant No.12 that they would not create any third party interest in respect of the construction which was built on the suit property after obtaining the sanctioned plan. The IA No.13253/2009 (u/O 39 R 4 CPC) was accordingly allowed and the stay granted vide order dated 18.09.2010 stood vacated. The para 16 of the order dated 07.05.2010 wherein this was recorded reads as under: “16. This court had already directed the defendant No.12 to file the affidavit which has been done and wherein the defendant No.12 has undertaken that he will not create any third party interest in respect of the construction which was built on the suit property without obtaining the permission of the court, therefore, it sufficiently protects the interest of the plaintiff. Accordingly, I feel that the ex parte ad interim order dated 18.09.2010 should be vacated and the defendant No.12 be permitted to raise the construction subject to the undertaking given by him which is accepted. So far as the present suit is concerned, the proceedings of the case are adjourned sine die without liberty to the plaintiffs to revive the same as and when they are able to obtain an order of revocation of grant of probate which will enable them to proceed ahead with the present suit. The application bearing no.IA No.12187/2009 under Order XXXIX Rules 1 & 2 CPC is dismissed and the application bearing IA No.13253/2009 under Order XXXIX Rule 4 CPC is allowed.”

5. The present application has been filed by the defendant No.12 seeking review of para 16 of the order dated 07.05.2010 on the ground that in the said para, what has been recorded is that the defendant No.12 has given an undertaking that they would seek the permission of the court before creating a third party interest in respect of the suit property. It is stated that there is an error apparent on the face of the record because the defendant No.12 never gave an undertaking to the said effect, but only gave an undertaking to the effect that they would inform the prospective purchaser about the pendency of the present suit and not seek a permission of the court and hence the present review application has been filed by them seeking necessary correction in para 16 of the order dated 07.05.2010.

6. As against this, the learned counsel for the plaintiffs has contested this application for review vehemently by contending that there is no error apparent on the face of the record. In this regard, he has stated that the plaintiffs had raised an objection to the language of the undertaking wherein it was observed by the plaintiffs that the defendant No.12 was surreptitiously trying to sell the property and defeat the rights of the plaintiffs using objectionable language in the undertaking wherein only intimation was sought to be given by the defendant No.12. Despite this, the court consciously in order to balance the equities passed an order directing the defendant No.12 to obtain the permission from the court before selling the suit property. It is, therefore, too late in the day now to change this condition imposed vide order dated 07.05.2010 of seeking permission of the court before creating any third party interest in respect of the construction which was built on the suit property to the condition that the defendant No.12 should only intimate the prospective purchaser about the pendency of the suit and hence the present application deserves to be dismissed.

7. The plaintiffs have also stated that once a final view has been expressed, the same cannot be reviewed by referring to the undertaking.

8. I have carefully considered the submissions made by the respective sides and gone through the order dated 25.01.2010 as well as the order dated 07.05.2010. Prima facie, I find force in the contention of the learned counsel of the learned counsel for the defendant No.12 that there is an error apparent on the face of the record. This error is that the court was conscious of the fact in not granting the stay or rather vacating the stay granted in favour of the plaintiffs and against the defendants on the ground that the interest of the plaintiffs was sufficiently protected by the undertaking given by the defendant No.12. Therefore, the court purposely made reference to the undertaking as the document which was singularly protecting the interest of the plaintiffs and in the said document what was stated by the defendant No.12 was not seeking permission from the court before transacting the property, but only intimating the prospective purchaser about the pendency of the suit in respect of the suit property so that in future the said prospective purchaser is not in a position to take the plea that he was taken by surprise or he has to consider himself bound by the orders of the court in the instant suit. This, in my considered opinion, is an error apparent on the face of the record and, therefore, needs to be corrected. I do not expect the minute hair splitting being done by the learned counsel for the plaintiffs that there is no error apparent on the face of the record and the order dated 07.05.2010 cannot be reviewed. I, therefore, feel that para 16 of the order dated 07.05.2010 must read as follows as there was an error apparent on the face of the record in mentioning that the defendant No.12 would seek permission of the court before creating any third party interest in respect of the construction which was built on the suit property instead of recording that the said defendant would intimate the prospective purchaser about the pendency of the present suit. “16. This court had already directed the defendant No.12 to file the affidavit which has been done and wherein the defendant No.12 has undertaken that he is ready to furnish an undertaking to the effect that any prospective interest which maybe created during the pendency of the case, will be after due intimation about the pendency of the case. Therefore, it sufficiently protects the interest of the plaintiff. Accordingly, I feel that the ex parte ad interim order dated 18.09.2010 should be vacated and the defendant No.12 be permitted to raise the construction subject to the undertaking given by him which is accepted. So far as the present suit is concerned, the proceedings of the case are adjourned sine die without liberty to the plaintiffs to revive the same as and when they are able to obtain an order of revocation of grant of probate which will enable them to proceed ahead with the present suit. The application bearing no.IA No.12187/2009 under Order XXXIX Rules 1 & 2 CPC is dismissed and the application bearing IA No.13253/2009 under Order XXXIX Rule 4 CPC is allowed.”

9. For the reasons stated above, the application of the defendant No.12 is allowed. CS(OS) No.1775/2009

1. List before the court for framing of issues on 25.08.2014. V.K. SHALI, J MAY 19, 2014