Research › Browse › Judgment

Patna High Court · body

1990 DIGILAW 204 (PAT)

Ramawatar Mushhar v. State Of Bihar

1990-05-17

N.PANDEY

body1990
Judgment N.Pandey, J. 1. This writ petition has been filed for quashing the order dated 10.6.1980, contained in Annexure-5 as also the order, dated 18.2.1983, contained in Annexure-6 to the writ petition. 2. Respondent No. 4 Butan Pandey filed an application under Sec. 12 of the Money Lenders Act (hereinafter referred to as the Act) before the D.C.L.R. Bhabua against the petitioners with respect to the land in dispute. The case of respondent No. 4 was that the lands in dispute were mortgaged, through a registered deed dated 25.9.1953. The period of 7 years had elapsed, but the petitioners were not giving delivery of possession of the land. Hence, prayer was made of redemption and delivery of possession in his favour. 3. The petitioners appeared before the D.C.L.R. and objected to the claim of respondent No. 4. The case of the petitioners was that the deed in question was not a mortgage deed rather it was Ekrarnama by way of settlement deed and, therefore, the provision of Sec. 12 of the Act was not attracted. 4. The learned D.C.L.R., after hearing the parties, perused the deed in question and held that the deed in question cannont be construed as a deed of mortgage and, therefore, the provision of Sec. 12 of the Act was not attracted. In the result the proceeding was dropped. 5. Respondent No. 4, instead of preferring an appenl under the provisions of the Act against the order of the D.C.L.R., filed a petition for review of the final order of the D.C.L.R. under which he had rejected the claim of respondent No. 4. On 26.9.1978/24.10.1978 the review petition was heard and the D.C.L.R. came to a conclusion that he had no power to review his earlier order and, therefore, the review petition was rejected. Thereafter another petition for review was filed by respondent No. 4, before the D.C.L.R. on 26.10.1978. On 10.6.1980, the D.C.L.R., after hearing the parties, held that the deed in question was a mortgaged deed and the parties are bound by the stipulation mentioned in the documents and, accordingly, he allowed the review petition. Thereafter, the petitioners preferred an appeal before the Collector, Rohtas, which was finally heard and by order dated 18.2.1983, while dismissing the appeal, learned Collector held that the D.C.L.R. was perfectly justified in reviewing his order. 6. Thereafter, the petitioners preferred an appeal before the Collector, Rohtas, which was finally heard and by order dated 18.2.1983, while dismissing the appeal, learned Collector held that the D.C.L.R. was perfectly justified in reviewing his order. 6. Learned Counsel appearing for the petitioners submitted that the D.C.L.R. had no jurisdiction to review his final order under which he had dropped the proceeding, because there is no provision under the Act, empowering the D.C.L.R. to review his own order. He has further contended that the deed in question was not a mortgaged one; rather it was a deed of settlement, and therefore, the provision of Sec. 12 of the Act was not attracted. 7. On the other hand, learned Counsel appearing for Respondent No. 4 submitted that since the D.C.L.R. in his earlier order had wrongly construed the stipulation of the deed, therefore, the moment error committed by him was pointed out, he was perfectly justified on his part to entertain the review petition and allow the claim of respondent No. 4. However, he could not point out as to whether there is any provision under the Act, giving jurisdiction to the D.C.L.R. to review his own judgment. 8. Thus, the question emerges for consideration as to whether in the facts and circumstances of the particular case, the D.C.L.R. had jurisdiction to review his own judgment. If so whether the impugned order is justified in law. From the plain reading of the provisions of the Act, it is apparent that the Legislatures in their wisdom have not introduced any provision under the Act, giving jurisdiction enabling the D.C.L.R. to exercise the power of review. It is well settled that the power of review is a creation of statute. Unless under the particular Act such power is incorporated, the Court should not generally assume jurisdiction. 9. It would be relevant to point out that the D.C.L.R. in his original order, while dropping the proceeding under Sec. 12 of the Act, had held that from the recital of the document it could not construed that it was a deed of usufructuary mortgage and in the result he dropped the proceeding, holding that the case was not hit by the provision of Sec. 12 of the Act. 10. 10. Under the impugned order, which was passed on review, the D.C.L.R. held that from the stipulation of the deed in question it appeared to him that it was a deed of mortgage and not a deed of settlement, as claimed by the petitioners On the basis of the aforesaid finding, he allowed the claim of Respondent No. 4. 11. From bare reference to the impugned order it appears that the petition for review has been entertained and allowed only on the ground that on reading of the original deed the D.C.L.R. came to a different conclusion which was recorded by him on earlier occasion. In my view this cannot be a ground for review. It is well settled that where two views are possible on the construction of the documents and the judgment adopted one of them, the judgment cannot be reviewed merely because the reviewing court adopted a different view on its interpretation. The D.C.L.R. was not empowered in law to sit over on its own judgment. Since the petitioner succeeds on the basis of the aforesaid consideration it is not necessary to discuss any other matter. 12. Considering the facts and circumstances of the case, I am left with no option but to hold that the impugned order of review, contained in Annexure-5 and the order of the Collector contained in Annexurer-6 are bad in law and, therefore fit to be quashed. 13. In the result, the petition is allowed and the impugned orders, as contained in Annexure-5 and 6, are quashed. However, there will be no order as to costs.