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1977 DIGILAW 221 (PAT)

Kirat Rai v. Guneshwar Rai

1977-12-05

LALIT MOHAN SHARMA

body1977
Judgment Lalit Mohan Sharma, J. 1. This is an application filed by the appellant in S. A.598 of 1971 for reviewing my judgment dated 12.7.1974 dismissing the appeal. 2. The suit out of which this matter arises was filed by the opposite parties nos.1 to 5 for a declaration of their title to and recovery of possession in respect of 14 dhurs and 7 dhurkis of land, being the northern portion of plot no.2034 fully described in the plaint. The case is that immediately north of this land are plot nos.2035 and 2036 ; plot no.2035 belonging to the defendants 1 and 2nd party and plot no.2036 to the defendant 3rd party ; and that they trespassed over the suit land. The suit was dismissed by the trial court and the plaintiffs appealed. During the pendency of the suit, at the trial stage, defendent no.2 being the defendant second party, died and his heirs were substituted, one of them being Smt. Sushila Devi who was impleaded in the court below as the respondent no.7. According to the case of the petitioner, Smt. Sushila Devi as also Narayan Rai, defendant no.7 in the trial court and respondent no.12 in the lower appellate court and no step for substitution was taken. The appeal was heard and allowed. The petitioner, who was defendent no.3 and respondent no.8 in the lower appellate court, filed Second Appeal no.593 of 1971. He impleaded Smt. Sushila Devi and Narayan Rai as the respondent nos.12 and 16 respectively. An application under section 151 of the Code of Civil Procedure was filed in the second appeal on the 11th May, 1972 stating about the death of the respondents and further mentioning the names of their heirs. It was also alleged that the appellant did not know about the facts of these deaths and then the service report on these respondents mentioning the fact was placed on the Lawzima Board, the appellant was informed by his Counsel in the high Court. It was asserted that the appeal in the lower appellate court had abated. On the 16th May 1972 the application was placed for orders and Mr. Justice Sarwar Ali directed notice of the application to be isued. An ordered processes etc. were filed and notices were issued fixing 30-8-1972 as the date for showing cause. It was asserted that the appeal in the lower appellate court had abated. On the 16th May 1972 the application was placed for orders and Mr. Justice Sarwar Ali directed notice of the application to be isued. An ordered processes etc. were filed and notices were issued fixing 30-8-1972 as the date for showing cause. The application was placed for final orders on 5.10.1972 when the names of the respondents 12 and 16 were directed to be expunged in accordance with the application. When the second appeal was placed for hearing before me on the 12th July, 1974, the learned counsel for the appellant failed to notice the point which he had raised in the application about the statement of the appeal in the lower appellate court. The appeal was passed on merits and was dismissed. On the 12th August, 1974, the present application for review was filed. 3. It has been contended on behalf of the appellant petitioner that the fact about the death of Sushila Devi and Narayan Rai during the pendency of the appeal in the lower appellate court was on the records of this case along with the further fact that their heirs had not been impleaded and on the very judgment under appeal the point regarding the abatement of appeal in the court below arose. The argument is that the dismissal of the appeal without a consideration of this question amounts to an error apparent on the face of the record. On behalf of the plaintiffs, Mr. Ramakant Verma contended that since the point was not raised on behalf of the appellant, it was not the duty of the Court to have considered and decided it and, in that view, the judgment cannot be assailed. It is not incumbent upon the court to examined the entire records of the case for discovering whether an additional point, not urged on behalf of the appellant, arose is an appeal. The correctness of the judgment had to be decided on the basis of the points raised on behalf of the appellant and since the question now urged was not pressed, the judgment of this court is not open to review. Reliance was placed on the decision in Mst. Ayesha Bai V/s. Daleep Singh, (AIR 1961 Rajsthan,186 ). 4. The correctness of the judgment had to be decided on the basis of the points raised on behalf of the appellant and since the question now urged was not pressed, the judgment of this court is not open to review. Reliance was placed on the decision in Mst. Ayesha Bai V/s. Daleep Singh, (AIR 1961 Rajsthan,186 ). 4. The statements of fact mentioned in the application dated 11th May, 1972 and supported by an affidavit were not challenged as incorrect when order were passed in the second appeal on their basis and these statements have not been denied even now before me. It must, therefore, be presumed that the persons concerned died and the case was pending before the appellate court. The plaintiffs prayed for a decree against all the defendants and after the dismissal of their suit in the trial court, they wanted the appellate court to pass such a decree which was actually passed in the final judgment given by the Court. In the circumstances, it cannot be, and has not been, contended that the heirs of the deceased respondents in the court below were not necessary parties. A serious question about the effect of the abatement of the appeal in the court below arose for the decision in the second appeal. In view of a string of decisions of this Court as applicable in the situation, the order dismissing the appeal could not have been passed. The error in the judgment is apparent on the face of the record of the second of appeal inasmuch as the necessary statements of fact made in the application and accepted as correct by the earlier orders passed in the case expunging the names of the deceased respondents were already on the records of the appeal. The only question which remains to be answered is whether the review application should be dismissed on the ground that the point was not pressed by the appellant. 5. The grounds mentioned in Order 47, Rule 1 of the Code of Civil procedure are, (ij the discovery of new and important matters of evidence, (ii,)a mistake or an error apparent on the face of the record and (iii) any other sufficient reason which has been interpreted as a reason analogous to those specified. 5. The grounds mentioned in Order 47, Rule 1 of the Code of Civil procedure are, (ij the discovery of new and important matters of evidence, (ii,)a mistake or an error apparent on the face of the record and (iii) any other sufficient reason which has been interpreted as a reason analogous to those specified. In so far as the discovery of new and important matters of evidence is concerned, there is a further requirement that the applicant should prove the exercise of due diligence in not discovering or producing it earlier, so far as the second ground, that is, an error apparent on the face of the record is concerned, it has not been made conditional by the rule on the applicant pressing the question as the time of the hearing. The applicant is not required even to prove the exercise of due diligence at the time of hearing of the matter as a excuse for omission to raise a particular point. A case for review is made out as soon as there is an error apparent on the face of the record. The question as to how the error occurred is not relevant In the case of Mt. Jamuna Kuer V/s. Lal Bahadur, (AIR 1950 FC 131)it was held that if there is such an error, whether the error occurred by reason of the Counsels mistake or it crept in by oversight on the part of the Court, is not a circumstances which can affect the exercise of jurisdiction of the court to review its decision I, accordingly, hold that the review application cannot be dismissed on this ground. In the case before the Rajasthan High court in Mst. Ayesha Bai V/s. Daleep Singh, (supra), an appeal which should have been heard by the District Court was heard and disposed of by the High court and while rejecting the application for review, the High Court pointed out that there was no lack of jurisdiction in the High Court inasmuch as it could transfer the appeal under section 24 of the Code of Civil Procedure. The principle of that decision does not appear to be applicable to the case before me. 6. In the result, I allow this application and recall my judgment delivered in S. A.598 of 1971 on 12.7.1974. The principle of that decision does not appear to be applicable to the case before me. 6. In the result, I allow this application and recall my judgment delivered in S. A.598 of 1971 on 12.7.1974. The result is that the second appeal is restored to its file and will be placed for disposal in due course. Application Allowed.