{1 } SB CIVIL SECOND APPEAL NO. 234/2001 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. CIVIL SECOND APPEAL NO.234/2001 DHANNA & ORS. Vs. NEW PINK CITY GRIH NIRMAN SAHAKARI SAMITI LIMITED, JAIPUR DATE OF JUDGMENT: 18.11.2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. N.K. Maloo, for the appellants. Mr. R.K. Agarwal, for the respondent. **** Heard learned counsel for the parties. 2. Plaintiff-respondent instituted a suit for permanent injunction in respect of suit property. The defendants filed their written statement. During pendency of the suit, the defendants moved an application under Order 12 Rule 6 CPC to pass a decree in respect of part of suit property on the basis of admission of the defendants in the written statement. The trial Court allowed the application vide order dated 14.09.1992 and passed a decree under Order 12 Rule 6 CPC in respect of part of suit property. {2 } SB CIVIL SECOND APPEAL NO. 234/2001 3. Being aggrieved with the said order, the revision petition was preferred by the defendants before this Court but the same was dismissed by this Court vide order dated 22.05.1996. Thereafter the defendants preferred review petition before this Court to review the order dated 22.05.1996, whereby the revision was dismissed. 4. During pendency of the review petition before this Court, the defendants/appellants preferred Special Leave Petition before the Hon'ble Apex Court, which was dismissed as withdrawn vide order dated 19.12.1996. 5. Thereafter, this Court vide order dated 17.09.1997 dismissed the review petition. Thereafter, the defendants preferred regular first appeal before the First Appellate Court on 14.10.1997 challenging the decree dated 14.09.1992 passed on the basis of admission in the written statement along with an application under Section 5 of the Limitation Act for condonation of delay. The said appeal was dismissed by the Additional District Judge No.7, Jaipur City, Jaipur vide judgment and {3 } SB CIVIL SECOND APPEAL NO. 234/2001 decree dated 18.01.2001 on merits as well as limitation both. Being aggrieved with the same, the defendants have preferred this second appeal. 6. Submission of learned counsel for appellants is that this Court while dismissing their revision petition vide order dated 22.05.1996, specifically passed the order that the revision is dismissed, not only on merits, but as not maintainable also, therefore, it can not be treated as dismissal on merits alone and, therefore, the First Appellate Court committed an illegality in not considering the factual aspect of the case and only on the basis of order of this Court, wrongly dismissed the appeal on merits. He further submitted that the First Appellate Court also committed an illegality in dismissing the first appeal being barred by limitation. It is submitted that due to wrong advise of Counsel, the defendants preferred revision petition before this Court and again review petition before this Court, therefore, time spent in prosecuting the revision petition as well as review petition ought to have been excluded and delay in filing the appeal should have been condoned. {4 } SB CIVIL SECOND APPEAL NO. 234/2001 7. Per contra, learned counsel for the respondents contended that the First Appellate Court was fully justified in dismissing the first appeal of defendants being barred by limitation as well as on merits, both. It is contended that this Court considered the merits of the case and upheld the order of the trial Court dated 14.09.1992 on merits. He contended that his objection before this Court while opposing the revision petition was that first appeal before the Appellate Court was maintainable, therefore, revision ought not to have been filed, therefore, this Court also dismissed the revision petition as not maintainable. 8. He further contended that thereafter the defendants preferred review petition before this Court to review the order dated 22.05.1996 dismissing the revision petition and during pendency of that review petition, the defendants preferred a Special Leave Petition before the Hon'ble Apex Court, which was dismissed as withdrawn and later on, this Court while dismissing the review petition vide order dated 17.09.1997, again reiterated that revision petition was dismissed on merits also. {5 } SB CIVIL SECOND APPEAL NO. 234/2001 9. He further contended that order dismissing the review was not assailed by the defendants before the Hon'ble Apex Court, therefore, order dismissing the revision petition as well as review petition, both, attained finality and this Court cannot sit over the aforesaid judgments of this Court. The order of this Court passed earlier could have been assailed only before the Hon'ble Apex Court. So far as order dated 22.05.1996 is concerned, a Special Leave Petition was also preferred but the same was dismissed as withdrawn. He, therefore, contended that there is no merit in this second appeal and the same deserves to be dismissed. 10. I have considered the submissions of learned counsel for both the parties and examined the impugned judgment passed by the First Appellate Court as well as earlier orders of this Court dated 22.05.1996, 17.09.1997 and the order of Hon'ble Apex Court dated 19.12.1996. 11. The plaintiff/respondent instituted the present suit on the basis of agreement to sale in respect of land in dispute. The {6 } SB CIVIL SECOND APPEAL NO. 234/2001 defendants filed their written statements in the trial Court. The plaintiff moved an application under Order 12 Rule 6 CPC in the trial Court that since defendants have admitted execution of agreement in respect of part of land, therefore, at least to that extent a decree be passed in favour of the plaintiff. The trial Court allowed the application and passed a decree under Order 12 Rule 6 CPC in favour of plaintiff in respect of part of land on the basis of admission of the defendants in the written statement. 12. The said order/decree was challenged by the defendants before this Court in S.B. Civil Revision Petition No.884/1992. It appears that one another order under Order 14 Rule 5 CPC was also passed by the trial Court in the same suit and the said order was also challenged in S.B. Civil Revision Petition No.605/1992. This Court vide its detailed order dated 22.05.1996, dismissed both the revision petitions filed by the defendants and affirmed the order/ decree dated 14.09.1992 passed by the trial Court in the suit under Order 12 Rule 6 CPC. Paras 11 and 14 of the order of this Court dated {7 } SB CIVIL SECOND APPEAL NO. 234/2001 22.05.1996 are reproduced as under:- “11. Perusal of para 18 of the written statement filed by the defendant in reply to the suit reveals that the defendant has clearly acknowledged his signatures on the sale agreement. The said agreement is duly signed by both the parties in the presence of attesting witness, hence in my considered opinion, it is not open to the petitioner to challenge either the vires of the aforesaid agreements nor it is open to him to controvert or resile from admission made by him duly acknowledging the receipt of consideration amount of Rs. 8,27,500/- in lieu of sale of the land in question and further it is not open to him to take a contrary stand in view of the fact that he has also admitted that sale consideration was utilised by him. Perusal of the documents and the evidence tendered on the record further reveals that in view of the offer and its acceptance coupled with the payment of sale consideration of the amount as referred to above a duly valid, binding and subsisting contract had come into operation between the parties and both the parties were bound to honour the same and it was not open to either of the party to resile from its terms. From the pleadings of the parties on the record it is evident that payment of sale consideration of Rs. 8,27,500/- in lieu of sale of the land in question was duly made by the Samiti by payee's account cheques drawn on a Nationalised Bank and the amount was duly credited to the account of the defendant and having once acknowledged the receipt of the amount and utilised the same to his own advantage, it is not open to him to later on agitate by way of revision petition before this {8 } SB CIVIL SECOND APPEAL NO. 234/2001 court that the said payment was not made to him or that the payment has been made against his consent. In my considered opinion all these please are shame, vague and illusory which have been purposely advanced with a view to wriggle out of the valid binding and enforceable agreements of sale as referred to above. 14. I have heard learned counsel for the parties at length and have also examined their rival claims and contentions and also examined relevant documents placed on the record of the trial court which was summoned by this court. In my considered opinion there is no illegality, impropriety or jurisdictional error committed by the learned trial court in passing the impugned orders dated 3.3.1992 and 14.9.1992, as referred to above. Revision petitions have no merit and the same are consequently rejected being not maintainable. Parties are left to bear their own costs.” 13. The defendants/appellants filed two review petitions i.e. S.B. Civil Review Petition Nos. 81/1997 and 92/1997 before this Court on 01.06.1996 to review the common order dated 22.05.1996 passed in both the revision petitions. During pendency of the review petitions, the defendants filed two petitions for Special Leave to appeal(Civil) No.24201-24202/96 before the Hon'ble Supreme Court challenging the order dated 22.05.1996 in S.B. Civil Revision Petition Nos. 605/1992 and 884/1992. The Hon'ble Supreme Court upon {9 } SB CIVIL SECOND APPEAL NO. 234/2001 hearing the Counsel, dismissed the Special Leave Petitions as withdrawn vide order dated 19.12.1996, which is reproduced as under:- “Upon hearing counsel the Court made the following O R D E R The special leave petitions are dismissed as withdrawn.” 14. Thereafter both the review petition Nos. 81/1997 and 92/1997 were also dismissed by this Court vide detailed order dated 17.09.1997. Last two paras of the order dated 17.09.1997 passed by this Court in S.B. Civil Review Petition No.92/1997 in S.B. Civil Revision Petition No.884/1992 with regard to decree passed under Order 12 Rule 6 CPC are reproduced as under:- “On merits , I am of the view that no fresh ground has been taken by the petitioner in this review petition which has not earlier been dealt with or decided by this Court by the impugned order dated 22.5.96. The only ground on which the learned counsel for the petitioner has assailed the impugned order is to the extent that the trial court vide its impugned order partly decreed the suit against the petitioner and which is still pending before the trial court. He further states that the question with regard to the jurisdiction of the Civil Court is also yet to be decided and the fact with regard to the vires of the agreement executed between the parties has also been challenged by the petitioner before the trial {10 } SB CIVIL SECOND APPEAL NO. 234/2001 court and the suit is still pending. Keeping in view the facts and circumstances of the case, I am of the view that the present review petition is not maintainable and the same is consequently dismissed. The trial court is directed to expeditiously dealt with and decide the suit pending before it. However, the observation made hereinabove, will not come in the way of the trial court while finally deciding the suit.” 15. The above facts and orders passed by this Court as well as Hon'ble Supreme Court make it abundantly clear that the impugned decree dated 14.09.1992 passed by the trial Court was upheld by this Court vide order dated 22.05.1996 in S.B. Civil Revision Petition No.884/1992. The said order of this Court was challenged before the Hon'ble Supreme Court by way of petition for Special Leave to Appeal and the same was also dismissed as withdrawn by the Hon'ble Supreme Court vide order dated 19.12.1996. 16. In these circumstances, when the earlier order of this Court dated 22.05.1996 has attained finality and further Special Leave Petition filed against this order was dismissed as withdrawn by the Hon'ble Supreme Court on 19.12.1996, then if any order passed {11 } SB CIVIL SECOND APPEAL NO. 234/2001 by this Court on merits of the case with regard to order/decree dated 14.09.1992 or 22.05.1996, then it will amount to review of earlier order of this Court, which is not permissible at this stage, particularly, when review petition against that order has also been dismissed by this Court way back on 17.09.1997. 17. Apart from above, it is relevant to mention that first appeal filed by the defendants has also been dismissed on the ground of limitation vide impugned order/decree dated 18.01.2001. The appeal before the First Appellate Court was filed on 14.10.1997 challenging the judgment and decree dated 14.09.1992 passed under Order 12 Rule 6 CPC, therefore, there was a delay of 5 years and one month in filing the first appeal. The explanation of defendants in the application under Section 5 of the Limitation Act is that due to wrong advise of Counsel, they preferred revision before this Court and review petition thereafter, therefore, the said period ought to have been excluded while counting period of limitation and delay ought to have been condoned in filing the appeal. {12 } SB CIVIL SECOND APPEAL NO. 234/2001 18. The delay of 5 years and one month cannot be said to be a small delay. There are three different period of delay in filing the appeal before the First Appellate Court; first is, time spent in prosecuting the revision petition before this Court against the order dated 14.09.1992, second is, time spent in prosecuting the review petitions from 01.06.1996 to 17.09.1997 before this Court to review the order dated 22.05.1996 passed in revision petition, and third is, time consumed between passing of order dated 14.09.1992 and filing of revision petition before this Court, dismissal of revision petition and filing of review petition before this Court and after dismissal of review petition on 17.09.1997 till the date of filing of the appeal i.e. 14.10.1997. 19. The order dated 22.05.1996 passed by this Court clearly reveals that an objection was raised about maintainability of the revision petition,but still revision petition was not withdrawn with liberty to file appeal before the First Appellate Court but the revision petition was pressed on merits. Therefore, it cannot be said that appellants bonafidely prosecuted their revision petition {13 } SB CIVIL SECOND APPEAL NO. 234/2001 on wrong advise of the Counsel. Not only this, but even after dismissal of the revision petition on 22.05.1996, first appeal was not preferred before the First Appellate Court immediately. Again review petition was preferred before this Court to review the order dated 22.05.1996 and not only this, but Special Leave Petition was also filed before the Hon'ble Supreme Court. In these circumstances, delay of 5 years and one month in filing the appeal before the First Appellate Court cannot be said to be bonafide, in the facts and circumstances of the case. 20. It is further to be noted that even name of Advocate has not been mentioned in the application under Section 5 of the Limitation Act who advised the defendants to file revision petition and review petition before this Court, nor his/their affidavit(s) have been filed in support of the application for condonation of delay. The order dated 22.05.1996 and 17.09.1997 passed by this Court would show that two different Advocates appeared before this Court in revision petition and review petition. In these circumstances, I find that First Appellate {14 } SB CIVIL SECOND APPEAL NO. 234/2001 Court was fully justified in recording the finding that no sufficient cause has been shown for condonation of delay in filing the first appeal before it. The First Appellate Court was fully justified in rejecting the appeal on limitation also. 21. The impugned order/decree dated 14.09.1992 was passed by the trial court under Order 12 Rule 6 CPC on the basis of admission of defendants in written statement about part of land. The First Appellate Court, while dismissing the appeal of the defendants on merits as well as limitation, has affirmed the findings of the trial Court. The question of admission of defendants in the written statement with regard to part of land is purely a question of fact in the facts and circumstances of the present case and there is concurrent finding of fact by both the Courts below, which cannot be interfered with by this Court in second appeal under Section 100 CPC. No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine. (NARENDRA KUMAR JAIN),J. /KKC/ {15 } SB CIVIL SECOND APPEAL NO. 234/2001 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B.CIVIL MISC. STAY APPLICATION NO.1116/2001 IN S.B. CIVIL SECOND APPEAL NO.234/2001 DHANNA & ORS. Vs. NEW PINK CITY GRIH NIRMAN SAHAKARI SAMITI LIMITED, JAIPUR DATE: 18.11.2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. N.K. Maloo, for the appellants. Mr. R.K. Agarwal, for the respondent. **** Since the main appeal itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed. (NARENDRA KUMAR JAIN),J. /KKC/