Sarojanmati Devi v. Yasoda Devi — 1981 DIGILAW 332 (ALL)

JUDGMENT I.B. Singh, Member. - This review application dated September 8, 1969 is against the judgment and decree of this court of May 29, 1969 relating to second appeal No. 316 of 1968-69, Gorakhpur. 2. This application was admitted for hearing on June 26, 1970. On August 5, 1971 a compromise, entered into between Smt. Sarojanmati Devi and Smt. Yasoda Devi, was filed in this court and in this compromise it was prayed that the review application dated September 8, 1969 might be disposed off in terms of the compromise. 3. The compromise application filed in connection with the review application gave rise to certain legal problems. The then learned Member Sri M. Samiuddin vide his reference order dated January 22, 1973 referred three questions for the decision to a larger Bench as according to him the points raised involved a substantial question of law. 4. The learned Member of the larger Bench Sri M. Zaheer, M. Samiuddin and B.K. Misra by their order dated October 10, 1972 answered the three questions mentioned below referred to them as follows :- Questions :- 1. Whether a review petition in a second appeal, which has been finally disposed of, would reopen the entire question and subject matter of the appeal before the disposal of the review petition so as to enable the parties to settle their disputes and adjust the suit and the appeal through a compromise? 2. Would this also in effect not amount to reopening of the entire subject-matter of the second appeal already disposed of enabling the parties to reach a settlement without any orders on the review petition? 3. Whether such a course of action would be permissible in accordance with the provisions of Order XXIII Rule 3 read with Section 141 of the Code of Civil Procedure? Answers :- 1. The Board must express its satisfaction that the order under review requires to be rescind,varied or altered before it can go into any other extraneous matter like a compromise. 2. It is only when the review application is to be disposed of on such lines that the subject-matter of the suit and the second appeal would be considered to have been re-opened. 3. 2. It is only when the review application is to be disposed of on such lines that the subject-matter of the suit and the second appeal would be considered to have been re-opened. 3. The provisions of Order XXIII Rule 3 read with Section 141 of the Code of Civil Procedure would come into play after the Board has taken action as indicated in the answers to question Nos. 1 and 2 above. 5. After the above decision by the larger bench the review application was put up before a Division Bench consisting of learned Members Sri S. Mubarak Hasan and Sri H.N. Agarwal. 6. Sri H.N. Agarwal did not enter into the merits of the review application. He was of the view that since the Board had admitted the review application for hearing hence it should be deemed that the Board had decided to rescind or vary or alter the judgment and decree under review. He, therefore, held that the review application subject to the concurrence of this learned colleague might be decided in terms of the compromise. According to him this was perfectly a legitimate course for deciding the controversy between the parties. 7. The learned Member Sri S. Mubarak Hasan heard the review application on merits and he was of the view that the review application should be dismissed. 8. Because of the difference of opinion between the two Members a larger bench consisting of 3 Members was constituted to hear the matter. 9. In the recent Full Bench case of the Hon'ble High Court of Judicature at Allahabad in Sakal Singh and others v. Smt. Devi and another, fully reported in 1979(5) A.L.R. page 383 in replying the question bracketed below held : "Does a mere admission of a review application and issue of a rule therein disturb the finality of the judgment in a suit or appeal and reopen and review that suit or appeal?" "It may be pointed out that Section 5(2)(a) of the Act contemplates suits or proceedings pending before any Court or authority, whether of the first instance or of appeal, reference or revision. It does not contemplate a review petition. But if by the admission of the review application, the proceedings in the second appeal are revived then the position would be different. It does not contemplate a review petition. But if by the admission of the review application, the proceedings in the second appeal are revived then the position would be different. It goes without saying that a review is not the same thing, as or a substitute for an appeal. The proceedings for review and appeal differ in many particular. The primary intention of a review is the reconsideration of the subject of the suit by the same Judge under certain conditions while an appeal is a rehearing by another Court or Tribunal. Secondly, a point which may be good ground for an appeal may not be a good ground for an application for review, e.g. an erroneous view of evidence or of law is no ground for a review though it may be does not of necessity reopen questions already decided between the parties. The matter in issue is reopened when the application for review is allowed while in the case of an appeal, the matter is reopened as soon as the appeal is admitted. Order 47, C.P.C. contemplates three stages in a review petition. It is open to the Court to reject the review application if it finds that no ground for review has been made out. It may issue notice to the other side before passing a final order on the review application and then, after hearing the parties the Court may dismiss the application for review or it may allow. If the application for review is dismissed, the matter ends there. If the application for review is allowed then the order sought to be reviewed may either be modified or set aside. Till the previous order passed in the second appeal is set aside the proceeding in the second appeal are not reviewed. They are reviewed only when the review petition has been allowed. It is only when the review application is allowed that the second appeal is reviewed and not otherwise. Mere admission of a review application does not reopen the second appeal or the suit because the admission of a review application only means that the Court is tentatively satisfied about the merits of the case, but still after hearing both the parties, the Court, may again reaffirm its earlier judgment and reject the review application. Mere admission of a review application does not reopen the second appeal or the suit because the admission of a review application only means that the Court is tentatively satisfied about the merits of the case, but still after hearing both the parties, the Court, may again reaffirm its earlier judgment and reject the review application. It is only when the review application has been allowed that the second appeal or the suit is reopened and then it can be said that the judgment is put in jeopardy. Besides, the omission of the word 'review' in sub-section (2) of Section 5 of the Act is not accidental, but it is a designed one. The reason is that the power of appeal, reference or revision is to be exercised by the higher Court but the power of review is to be exercised only by the Court which had decided the case on the grounds contemplated by Order 47, Rule 1, C.P.C. The purpose of abatement under Section 5 of the Act is that the matter can be adjudicated by the consolidation authorities afresh. If the matter has already been decided by a competent Court, that would not be re-opened. When an appeal is pending then the suit itself will be deemed to be continuing because the appeal is only a continuation of the suit. But this is not the position in respect of a review application. Normally, the judgment once signed cannot be touched by the Judge of Tribunal and it is not only when the conditions contemplated by Order 47, C.P.C. are satisfied then and then alone, the order can be set aside or modified by the same Court and till the review application is allowed is not put in jeopardy. In the instant case, as only the review application had been admitted and had not been allowed, therefore the pendency of the review application will not result in the abatement of the suit because the suit had already culminated into a decree by the second appellate court." 10. Thus now it is well settled that mere filing of a review application and its admission does not reopen the lis and the appeal does not become pending unless the review application is allowed and the appeal is reheard. Thus now it is well settled that mere filing of a review application and its admission does not reopen the lis and the appeal does not become pending unless the review application is allowed and the appeal is reheard. Therefore a review application cannot be decided in terms of the compromise which can be allowed on specific grounds provided by the statute and on no other grounds. A compromise might not fulfil any of the conditions on which a review application can be allowed. 11. Before entering into the merits of the review application we would like to observe that there was no necessity for constituting a larger bench consisting of 3 Members. There was a difference of opinion between 2 Members of the Division Bench. The matter should have been referred to a 3rd Member for his decision instead of referring it to a larger bench of 3 Members. This being observed, so that it may not lead to wrong precedent of referring a latter to a larger bench or 3 Members could be decided according to the practice of the Board and procedure binding on Board by a 3rd Member. This is the procedure in vogue also in the Hon'ble High Court. We are supported in this view of ours by 1955 R.D. 42, 1957 R.D. 217 and Old Rules 170 and 190 of the Revenue Cour Manual and by the decision of Review No. 63-63-A of 1977-1978/Dehradun Kamal Nain Sharma v. Jagat Kishore, decided on 11.7.1982. 12. Now we come to the merits of the review application. A number of grounds have been taken in the review application but the learned counsel for the applicant advanced only one argument before us in his support. The learned counsel submitted that the appeal of Smt. Sarojanmati Devi was dismissed by the then learned Member Sri C.M. Nigam because according to him the claim of applicant was barred by section 49 of the U.P. Consolidation of Holdings Act. The learned counsel contended that there was no plea to the affect that the claim of Smt. Sarojanmati Devi or her pleas were barred by S. 49 of the U.P. C.H. Act. No such point was argued before the learned Member. The learned Member suo moto carved out a new case for which Smt. Sarojanmati Devi got no opportunity to rebut for defend. No such point was argued before the learned Member. The learned Member suo moto carved out a new case for which Smt. Sarojanmati Devi got no opportunity to rebut for defend. The judgment of the learned Member Sri C.M. Nigam shows it is not correct to argue that the question regarding bar of Section 49 C.H. Act was not raised during the arguments while the learned Member was hearing the appeals. There were 3 appeals arising out of the same suit and they were heard and disposed off together. The impugned judgment and decree passed by Sri Nigam shows that the question relating to Section 49 of the C.H. Act was taken up by the parties themselves while challenging the rights of Smt. Malti Devi who had filed the other two appeals. It is, therefore, not possible for us to believe that the finding of the learned Member was a bolt form blue for Smt. Sarojanment Devi consolidation had in fact intervened. Secondly, the worst that could be said against the impugned judgment and decree would be that the learned Member had wrongly applied law. Wrong application of law is not a ground for review. It is not an error apparent on the face of the record, which could be made a foundation for a review. Even a wrong opinion expressed is no ground for a review. 13. There were 3 appeals. These appeals were decided by a common judgment by the learned Member on May 29, 1969. The appeals Nos. 271 and 272 filed by Smt. Malti Devi were allowed holding that Smt. Malti Devi had share in the disputed land. Appeal No. 316 was dismissed in which the present review application had been filed. The decisions in appeals Nos. 271 and 272 have become final. The affect of decision in aforesaid two appeals of Smt. Malti Devi is that she is a co-tenure-holder of the disputed land along with Smt. Yasoda Devi. The decision of the appeals Nos. 271 and 272 of 168-69 had not been challenged. If the present review application which has been moved in connection with appeal No. 316 of 1968-69 were to be allowed it would have the effect of upsetting the decisions in appeals Nos. 271 and 272, for it would be required to hold that Smt. Malti Devi was co-tenure-holders with Smt. Sarojanmati Devi in place of Smt. Yasoda Devi. If the present review application which has been moved in connection with appeal No. 316 of 1968-69 were to be allowed it would have the effect of upsetting the decisions in appeals Nos. 271 and 272, for it would be required to hold that Smt. Malti Devi was co-tenure-holders with Smt. Sarojanmati Devi in place of Smt. Yasoda Devi. Since the decision in the two appeals of Smt. Malti Devi have become final therefore the above mentioned change cannot be allowed. For this reason too the review application of Smt. Sarojanmati Devi in appeal No. 316 cannot be allowed. 14. In view of the above, we are of the opinion that this review application has got no force and is liable to be dismissed, hence it is hereby dismissed. Parties shall bear their own costs.