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VIJENDER SINGH vs STATE & ORS

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 20.09.2024
Judgment pronounced on: 04.10.2024
+ FAO 523/2018
VIJENDER SINGH …..Appellant
Through: Mr. Sunil Choudhary, Mr. Lalit Kumar, Mr. Praveen Singh, Advs.

versus

STATE & ORS …..Respondents
Through: Mr. C. Mohan Rao, Sr. Adv. with Mr. R.S. Mishra, Mr. Lokesh Sharma, Mr. A.K. Pandey, Mr. Anand Mishra, Mr. S.K. Singh and Mohd. Umar Saifi and Mr. Nitesh Verma Advs. for R-3.

CORAM:
HON’BLE MS. JUSTICE SHALINDER KAUR

J U D G M E N T

Review Pet. 218/2024—filed by R-3 for review of judgment dt. 05.02.2024, CM APPL. 31402/2024—60 days delay in filing review application, CM APPL. 31401/2024—stay, CM APPL. 50138/2024 filed by R-3 for additional documents.

1. The present review petition under Section 114 of the Code of Civil Procedure, 1908 (“CPC”), filed by the applicant/respondent no. 3, emanates from the judgement dated 05.02.2024 passed by this Court in first appeal being FAO No. 523/2018 titled as “Vijender Singh vs. State & Ors.”, whereby the order dated 26.04.2018 passed by the learned Additional District Judge (“ADJ”), Saket Court, New Delhi was set aside and the probate of the Will was allowed, subject to payment of the requisite stamp duty and fee to be paid by the non-applicant (“original appellant”).
2. The review petition has been preferred by the original respondent no. 3 (“applicant”) against the non-applicant, who was the original appellant in the aforementioned first appeal.
3. Mr. C. Mohan Rao, learned Senior Counsel for the applicant submitted that the judgement passed by this Court on 05.02.2024 is liable to be reviewed as there are patent errors on the face of record. He submitted that while dismissing the FAO No.523/2018, this Court has erroneously allowed the probate of a Will dated 04.04.2007 while setting aside the order dated 26.04.2018 passed by the learned ADJ vide which the probate petition was dismissed on the ground that the execution of Will dated 04.04.2007 is surrounded with suspicious circumstances.
4. He submitted that this Court wrongly held that the execution of Will dated 04.04.2007 has been correctly proved in accordance with Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 without giving thoughtful consideration to the evidence available on record. He, therefore, prayed that the judgment dated 05.02.2024 be reviewed and consequently, be set aside.
5. In response to the submissions as raised hereinabove, Shri Sunil Chaudhary, learned counsel for the non-applicant, at the outset, sought dismissal of the review petition by submitting that the review petition is not maintainable as the applicant has not approached this Court with clean hands and has suppressed material facts from this Court. The learned counsel brought to the notice of this Court, the grounds taken in the application filed with the review petition seeking condonation of delay to contend that the reasons stated for delay is that the applicant is more than 70 years of age, suffering from old age ailments and is persistently not keeping well, thus, he became late in contacting his lawyer in providing instructions for filing the present review petition.
6. He submitted that the applicant, before filing of the present review petition, had filed a Letters Patent Appeal (“LPA”) being LPA No.253/2024 before the learned Division Bench of this Court, which was dismissed on the ground of maintainability.
7. He further submitted that after the said fact was placed on record by the non-applicant vide a reply dated 08.08.2024, opposing the review petition, the applicant filed an additional affidavit bringing on record the fact regarding filing of the LPA No.253/2024, however, he still concealed the fact of filing the Special Leave Petition (“SLP”) before the Hon’ble Supreme Court which was dismissed in limine on 13.05.2024, against the judgement of this Court dated 05.02.2024 in FAO No. 523/2018. Subsequently, he placed on record the said judgment of the Hon’ble Supreme Court vide which the SLP was dismissed. He submitted that the advocate and applicant were well aware and were in contact of each other as the same advocate, who has filed the application seeking review had filed the LPA No. 253/2024. Moreso, the applicant had duly signed affidavits and Vakalatnama in the said LPA on 06.03.2024. He, therefore, submitted that the grounds taken by the applicant in not filing the present review petition in time is shrouded with suspicion as he failed to show any sufficient cause which prevented him from filing the present petition within time. Thus, on this ground alone, this petition is liable to be dismissed as the applicant is trying to mislead the Court by concealing material facts from this Court and by raising false grounds in his application seeking condonation of delay. He, thus, submitted that the review petition is not maintainable being barred by limitation.
8. Furthermore, the learned counsel submitted that by filing the present review petition, the applicant has made an attempt to re-argue the merits of the said FAO which is impermissible under Section 114 of CPC. He submitted that it is a settled position of law that review of an order/judgment is open, inter alia, if there is a mistake or an error apparent on the face of the record which is not the case in the present matter. He, therefore, prayed that the review petition be dismissed.
9. In rebuttal, Mr. Rao, submitted that there is hardly any delay in filing the review petition. The LPA preferred by the applicant on 06.03.2024 was disposed of on 02.04.2024 as being not maintainable. He submitted that the SLP filed before the Hon’ble Supreme Court was dismissed in limine on 13.05.2024, the present review petition was filed on 21.05.2024, therefore, there is barely a delay of 10 days which ought to be condoned. He further pointed out that non-mentioning of filing of the LPA or SLP is not a material fact in the circumstances of the present case which in no manner affects the merits of the present review petition, thus, the non-applicant has incorrectly mentioned before this Court regarding concealment of material facts by the applicant.
10. Reliance has been placed on the following judgements in support of the above submissions:-
i. Indian Oil Corporation Ltd. Vs. State of Bihar & Others: (1986) 4 SCC 146;
ii. Sri Ram Builders vs. State of Madhya Pradesh: (2014) 14 SCC 102;
iii. Rajender Singh vs. Lt. Governor, Andaman & Nicobar Islands and Others: (2005) 13 SCC 289.
iv. Khoday Distilleries Ltd. vs. Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal: (2019) 4 SCC 376.
v. Janki Narayan Bhoir vs. Narayn Namdeo Kadam; (2003) 2 SCC 91.
11. Having considered the submissions of the learned counsel for the parties, perused the record and the decisions cited by learned senior counsel, to begin with, it may be apposite to note the contentions made in respect of the application seeking condonation of delay of 60 days in filing the review petition.
12. The law of limitation being a substantive law, the petition seeking review is to be filed within a stipulated time limit. Filing a petition for review within a period of limitation is the rule and condonation of delay is an exception. It is settled position of law that length of delay is not material but the reasons stated thereof for condonation of delay are. Thus, the reasons should not only provide sufficient explanation for condonation of delay but should also be genuine. The power of discretion to condone the delay is to be exercised judicially and by recording reasons.
13. The reason stated by the applicant is not only flimsy but also shows that he has not been candid in his approach. Not only the factum of preferring the LPA No.253 of 2024 is concealed, even though the same was dismissed as being not maintainable, but at the same time, the reasons stated for condonation of delay in preferring the present review petition is not at all acceptable. This Court is of the view that the applicant has signed and affirmed the affidavits and Vakalatnama for preferring the LPA on 06.03.2024, which was listed on 02.04.2024, thus the ground pleaded in the application for condonation of delay that “respondent no.3 could not file present review petition within prescribed period of limitation as he is more than 70 years of age and is suffering from old age ailments and not keeping well for ever as such he became late in contacting his lawyer in providing instructions for filing the present review petition” lacks bonafide. Moreover, nothing stopped the applicant to fairly inform this Court that he had preferred the LPA and then was waiting for disposal of the SLP, as such the present review was not filed, but that is not the case here.
14. It is to be noted that apart from considering the number of days which is material, the conduct of the party which causes delay is also of paramount significance. This being the factum, this Court is of the view that the applicant has not set out any acceptable ground for the purpose of condoning the delay of 60 days. The applicant does not deserve indulgence in as much as the averments made by him in the petition and supporting affidavit do not inspire confidence and lack complete disclosure of facts. This apart, it has been brought to the notice of this Court that the SLP preferred against the judgment dated 05.02.2024 of this Court was dismissed in limine on 13.05.2024. Regrettably, this Court does not find any merit in the submissions placed on behalf of the applicant and application seeking condonation of delay, therefore cannot be sustained.
15. Despite the dismissal of the application seeking condonation of delay, even otherwise, the entire conspectus of arguments advanced by the applicant is that the judgment is erroneous, which admittedly is outside the purview of review. This Court finds that the applicant has merely attempted to re-argue the matter which is not permissible, as Section 114 CPC cannot be made a springboard to assail the findings of the order as in an appeal. The decisions relied upon by learned senior counsel, being on the factual context of respective cases are not applicable to the present case.
16. On due consideration of the above, no ground is made out to review the judgment dated 05.02.2024. The pending applications are dismissed. No order as to cost.

SHALINDER KAUR, J.
October 04, 2024 /ab/KM

FAO 523/2018 Page 7 of 7