SURJEET MALHAN Vs. JOHAN TINSON & CO.

JUDGEMENT

(1.) In CMP Nos. 72 and 73 of 1998, the applicants are the respondents -defendants 1 to 3 whereas non - applicants are the plaintiff and Performa respondent -defendant. Hereinafter the parties are referred to as defendants, plaintiff and Performa -defendant in this judgment. In Civil Miscellaneous Petition No. 72 of 1998 under Section 152 read with Section 151 of the Code of civil Procedure, the defendants have prayed for rectifying the judgment dated 14.11.1996 passed in RFA No. 230 of 1985 by Division Bench of this Court to the effect that instead of 1500 shares it should read 900 shares and in another CMP No. 73 of 1998 for staying the deposit of 600 shares in the Registry of this Court as per order dated 12.3.1998 passed by the learned Single Judge of this court in Execution Petition No. 6 of 1997. Replies and rejoinders to these applications have also been exchanged. Both the applications came to be decided by a Division Bench of this Court on 21st December, 1999. The learned Judges have recorded their dissenting judgments. Ms. Justice Kamlesh Sharma, J. rejected both the applications whereas Mr. Justice Surinder Sarup, J. (since retired) allowed them. It is in these circumstances that these applications have been placed before this Bench for decision by order of the Honble the Chief Justice.

(2.) Earlier, these applications were disposed of by this Court on 30.12.1998 observing that the Supreme Court was seized of the matter pertaining to 600 shares in Civil Appeal No. 637 of 1998 and it would not be proper to pass any order on these applications. 600 shares, which were lying in deposit in the Registry of this Court pursuant to order of the Division Bench dated 1.4.1998 were also ordered to be handed over to the counsel for the plaintiff. Against the impugned order dated 1.4.1998, the defendants filed SLPs. (Civil) No. 1417 and 1418 of 1999 in the Supreme Court which were granted and converted into Civil Appeals No. 732 and 733 of 1999, which were allowed by order dated 8.2.1999 extracted by Ms. Justice Kamlesh Sharma, J. In her judgment.

(3.) I do not consider it necessary to repeat the long drawn out facts of this case which have been exhaustively dealt with by Ms. Justice Kamlesh Sharma, J. Suffice it to say that admittedly, two separate civil suits Nos. 1 and 2 of 1973 respectively were laid in this Court by the plaintiff and Performa defendant, who is her husband for declaration and permanent as well as mandatory injunction. After trial, ultimately, both the suits were dismissed by a common judgment of learned Single Judge dated 4.3.1985. However, while the suits were pending trial, the learned Single Judge passed order dated 1.6.1984, which has been reproduced in its entirety in paragraph 23 of the judgment by Ms. Justice Kamlesh Sharma, J. The operative part of that order is to the effect that on the prayer made by the learned counsel for the plaintiff and taking into consideration the various circumstances of the case, the learned Single Judge was of the view that the suit qua 600 ordinary shares was likely to fail on legal and technical defects and, as such, in view of various circumstances and specially in view of the fact that the learned counsel for the defendants had also accepted the prayer of the plaintiffs counsel, the plaintiff was allowed to withdraw the suit qua 600 ordinary shares which were in the name of Smt. Surjeet Malhan jointly with others with liberty to file fresh suit on the same cause of action if otherwise permissible under the law.