CHIRANJIV SINGH DANG & ANR. Vs. SUDESH CHOPRA

JUDGEMENT

(1.) I .A. No. 18821/2012 has been filed by the defendant under Section 151 CPC for recalling/setting aside the order dated 24.9.2012 whereunder, the plaintiffs' suit was decreed under Order XII Rule 6 CPC to the extent that the defendant would hand over vacant peaceful possession of the suit premises to the plaintiffs on or before 3.11.2012 and further, she was required to pay arrears of rent/occupation charges @ Rs. 38,160/ - within ten days, under Order XXXIX Rule 10 CPC and for deciding the suit on merits. Along with the aforesaid application, the defendant has filed IA No. 18822/2012 for stay of the operation of the order dated 24.9.2012. The ground taken for seeking recall of the order dated 24.9.2012 is that the previous counsel who was appearing for the defendant, i.e., Mr. Mohinder Kumar Kukreja had submitted on 24.9.2012 that in view of the preliminary objections that were taken in the written statement, he had argued that the applications filed by the plaintiff under Order XXXIX Rule 10 CPC, Order XII Rule 6 CPC and Order II Rule 2 CPC were not maintainable and that the documents executed in respect of the suit premises on 12.2.2009 and the Hire and Maintenance Agreement on the basis of which the present suit has been instituted by the plaintiffs, were forged and fabricated and self -created ones. It is further averred in the application that on 24.09.2012 the counsel for the defendant had submitted to the Court that the defendant did not want to withhold the arrears of rent and was ready to pay the rent "that is legally recoverable from her". However, on account of a "misunderstanding and under some wrong impression of the court", it was recorded in the aforesaid order that the defendant's counsel did not have any objection to passing of the orders of vacating the suit premises under Order XII Rule 6 CPC and further, that the defendant had no objection to the court allowing the remaining two applications that were filed by the plaintiff under Order XXXIX Rule 10 CPC and Order II Rule 2 CPC.

(2.) IN para 9 of the application it is stated that the defendant's counsel had no intention of making the submissions as were recorded in the order dated 24.9.2012 as he had not received such instructions from his client and that the order did not record any statement to the effect that the Learned Counsel for the defendant had received instructions from the defendant to vacate and deliver possession of the suit premises to the plaintiff within one month. Further, it has been stated that no such statement was made in the court to the said effect and nor was there any affidavit of the defendant filed in this respect and that the counsel had not received any instructions from his client to make such statements as have been recorded in the order dated 24.9.2012. It is further averred in para 10 of the application that upon coming to know of the order dated 24.9.2012, the defendant made enquiries from her previous counsel, who informed her that he had not made any such statement, as was recorded in the said order and that the said order came to be passed due to "some misunderstanding or communication gap". Mr. Mohinder Kumar Kukreja, Advocate has also filed an affidavit in support of the present application wherein he has stated as below:

(3.) THAT however, due to some misunderstanding or communication gap the Hon'ble Court passed the order, observing that the defendant has no objection in disposing of the application under Order 39 Rule 10 CPC and Order 11 Rule 2 CPC and Order 12 Rule 6 CPC.