R.P.No.1/2008 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Review Petition No.1/2008 in RSA No.132/2004 Date of Decision: May 06, 2010 D.C.KHOSLA ..... Petitioner Through: Mr.Ashish Dholakia, Advocate with Petitioner in person. versus VINOD KUMAR JAIN ..... Respondent Through: Mr.R.K.Jain, Advocate. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. (Oral) 1. Appellant has sought review and recall of the order dated 31st October, 2007 passed in CM Nos. 10347 & 10346 of 2005 in RSA No.132/2004, whereby this Court dismissed the applications of the appellant and declined to condone the delay and set aside abatement of the appeal. 2. Mr. Ashish Dholakia counsel appearing on behalf of the R.P.No.1/2008 Page 2 of 5 petitioner has argued that there is an error apparent on record inasmuch as recording of facts that ‘one of the proposed L.R.s of the appellant took time to take steps to inform his sister about marriage of the counsel who was not available in town’, is contrary to the pleadings on record. He further argued that as regards recording of facts that ‘vakalatanamas had been executed by two advocates’ is also contrary to the record, because vakalatnama for the deceased, though was in joint names, was executed only by one advocate for the appellant, which on demise of the original appellant stood discharged. He further argued that fresh vakalatnama was executed only in favour of Mr.Rana S. Biswas, as is evident from the vakalatnama. He further submitted that appellant had expired on 3rd February, 2005 and the application was required to be filed by 5th May 2005, whereas last date for moving an application for setting aside abatement of appeal was 4th July, 2005 and therefore, period of limitation effectively started running from 4th July, 2005 and the applications were filed on 14th July, 2005 resulting in a delay of nine days only. He has emphasized that during the running period of limitation, there were intervening summer vacations. 3. Mr.R.K.Jain, counsel appearing on behalf of the respondent has countered the arguments of counsel for the petitioner and has submitted that two advocates were representing the appellant and therefore, if one was R.P.No.1/2008 Page 3 of 5 not available because of his marriage; other counsel could have filed the application under Order 22 Rule 3 CPC within the period of limitation. He further emphasized that the application of the petitioner was dismissed on merits and no infirmity or illegality has crept in the order, which needs any review, and that by way of a review petition, petitioner cannot be allowed to build up a defence in his favour, which according to him is based on false and fabricated documents. 4. As regards submission on condonation of delay in filing the petition beyond the period of limitation, it need not be considered in this review petition because, while deciding a review petition, Court is not required to reconsider and decide the applications afresh which were dismissed on 31st October, 2007 vide detailed order considering the merits and submissions of the parties. 5. Vakalatnama filed on record by the petitioner finds mention two names i.e. ‘Mr. Rana Mukherjee’ and ‘Mr. Rana S.Biswas’. True that, appeal was filed by Rana S.Biswas, fact remains that Rana Mukherjee was also actively involved in this appeal. In the opening sheet, along with name of Rana S.Biswas, name of Rana Mukherjee also appears as an advocate for the appellant. R.P.No.1/2008 Page 4 of 5 6. Perusal of the record indicates that affidavit filed by Mr.D.C.Khosla, present petitioner along with CM No.10346/2005 also bears signatures of Rana Mukherjee as the Advocate who identified the petitioner. Similarly an affidavit enclosed with CM No.10347/2005 bears signatures of Rana Mukherjee as the Advocate who identified the deponent. Rana Mukherjee’s name finds mention in all the pleadings and CMs including the appeal filed on behalf of the appellant as well as the petitioner. It is pertinent that in the courier slip, name of Rana Mukherjee appears as ‘sender’ of the notice. These are some of the illustrations highlighted to indicate that Rana Mukherjee was also representing the appellant. Both the advocates are from the same chamber. Simply because Rana Mukherjee’s signature do not appear on the vakalatnama, does not mean that he was not one of the lawyers representing the case of the appellant and the present petitioner. It is also pertinent that perusal of order sheets reflect that many a times Rana Mukherjee had been appearing along with Rana S.Biswas as counsel for the appellant. Nowhere his presence is marked as proxy. 7. Therefore, this Court rightly observed that there are two advocates in the case as is indicated in the vakalatnama and if that is so, another lawyer could prepare the application and file the same. True that, R.P.No.1/2008 Page 5 of 5 there seems to be some typographical mistake when it is recorded in the order ‘Two Vakalatnamas of the Advocates have been filed in the case. There are two Advocates in the case as is indicated in the Vakalatnamas and if that is so another lawyer could prepare the application and file the same.’ Review which is required is only to the extent that the words ‘two’ should not have appeared and needs deletion. Whereas word ‘vakalatnamas’ indicating plural should be ‘vakalatnama’ as single. 7. Under these circumstances, no review is required in the order dated 31st October 2007, as there is no error apparent on the face of record. Clerical mistakes as pointed out above are hereby corrected and the relevant lines as reproduced above, after correction would read ‘Vakalatnama of two Advocates has been filed in the case. There are two Advocates in the case as is indicated in the Vakalatnama and if that is so, another lawyer could prepare the application and file the same.’ 8. Application stands disposed of accordingly. (ARUNA SURESH) JUDGE May 06, 2010 sb