UMA DEVI Vs. SHIVRAJ KRISHAN GUPTA AND ORS.

JUDGEMENT

(1.) The petitioner had filed an application under Sections 151 and 152 CPC for correction of the name in the judgment and appointment of Commissioner to determine quantum of mesne profits in terms of order of this Court dated 24th July, 1998. Though vide impugned order dated 15th October, 2012 corrections in the judgment dated 16th September, 2004 were carried out being typographical errors, however no order was passed regarding the prayer of appointment of Commissioner for mesne profit pendent-lite and interest against defendant No.7 who is respondent No.8 in the present petition.

(2.) A brief exposition of facts is that the petitioner filed Suit No.754/1979 before this Court on 9th July, 1979 for partition of property bearing No.795 to 809, Joshi Road, Karol Bagh, New Delhi admeasuring 2081 sq.mts. (2489 sq.yds.) constructed upto single storey. Written statement was filed by the defendants/respondents wherein respondent no.8 herein M/s Panna Lal Girdhar Lal Pvt. Ltd. a wholly owned and controlled company of Vimla Devi defendant No.1 in the suit now represented by L.Rs.i.e. respondent Nos. 1 to 4 herein had a tenancy at Rs. 100/- per month. On 28th April, 1980 a preliminary decree for partition declaring the plaintiff Uma Devi now represented through her L.Rs, i.e. petitioners No.1 and 2, Vimla Devi now represented through respondents 1 to 4, respondent no.5 to 7 holding that each of them had 1/5th share in the suit property. Thereafter the suit proceeded with respect to the alleged tenancy claimed by respondent No.8 herein on the issue i.e. "Whether defendant No.7 is a tenant of one shop, two rooms, common bath room and lavatory?". While dismissing the claim of respondent No.8 herein on 24th July, 1998 this Court vide the judgment dated 24th July, 1998 answered the issue as noted above against respondent no.8 and in favour of plaintiffs/petitioners and held as under:-

(3.) Against the order dated 24th July, 1998, the appeal filed by respondent No.8 herein being FAO(OS) 238/98 was dismissed by the Division Bench on 10th January, 2003. In the meantime, plaintiff Uma Devi died on 31st January, 2003 and her L.Rs. who are petitioners No. 1 and 2 were brought on record. The Special Leave Petition filed by respondent No.8 herein being SLP (Civil) No. 12199/2004 against the order of this Court dated 10th January, 2003 was also dismissed on 3rd September, 2004. In the meantime, the suit was transferred from the original jurisdiction of this Court to the learned Additional District Judge because of the pecuniary jurisdiction and vide order dated 16th September, 2004, a judgment and decree was passed by the learned Additional District Judge after the Local Commissioner was appointed vide order dated 5th December, 2003. Learned Additional District Judge noted the order of this Court while deciding the issue of tenancy of respondent no.8 and noted that this court decided the issue vide judgment dated 24th July, 1998 holding that defendant No.7 failed to prove his tenancy so the claim of defendant No.7 of tenancy in the suit property was rejected and the plaintiff was given liberty to apply for passing of the final decree and that the plaintiff entitled to pendente lite mesne profits and interest against defendant No.7. However, in the judgment finally the learned Additional District Judge noted as under on the basis of which final decree was drawn: