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1991 DIGILAW 816 (RAJ)

Ramji Lal Chiranji Lal v. Ram Charan

1991-10-22

I.S.ISRANI

body1991
JUDGMENT 1. - Two petitions for review/recall of the orders dated November 10, 1989 in Writ Petition No. 4937/89, by which the writ petition was dismissed in limine and stay order dated December 8, 1989, which was granted in Writ Petition No. 4419/89 have been filed. Since both the review petitions are inter-connected, they are disposed of byone order. The order dated November 10, 1989 was passed by Hon'ble the Acting Chief Justice Shri M.C. Jain as he was then and by me and the other order dated December 8, 1989 was passed by Hon'ble Justice Shri G.K. SHARMA as he was then and by me. Both the above mentioned Judges are no more attached with this Court. 2. It is submitted by Mr. SC Bhandari, learned Counsel that these review petitions should be heard by a Division Bench and not by Single Judge since the orders were passed by Division Bench of this Court. The learned Counsel has referred to Rule 64 of the Rajasthan High Court of Judicature Rules, 1952 (for brevity 'the Rules, 1952') and Rules 5 of Order 47 of Civil Procedure Code. I have carefully considered the provisions referred to by the learned Counsel. A bare reading of Rule 64 will show that when "an application for review of a judgment is filed the same shall be placed before the Judge or Judges by whom such judgment was delivered. I have carefully considered the provisions referred to by the learned Counsel. A bare reading of Rule 64 will show that when "an application for review of a judgment is filed the same shall be placed before the Judge or Judges by whom such judgment was delivered. If such Judge or Judges or any one or more of such Judges be no longer attached to the Court or one of them, are or is precluded by absence or other cause for a period of six months next after the application, from considering the decree or order to which the application refers, the application shall be laid before the Chief Justice who shall with due regard to the provisions of Rule 5 of Order 47 C.P.C. arrange for a Bench for the hearing and disposal of such application." Rules 5 of Order 47 C.P.C. provides that "when an application for review of an order was passed by more than one Judges, they continue to be attached to the Court at the time when application for review is presented, such application shall be heard and decided by such Judge or Judges or any of them shall hear the application, but no other Judge or Judges shall hear the same." So far as the present petitions are concerned, Hon'ble Shri M.C. Jain and Hon'ble Shri G.K. Sharma are no more attached with this Court. In Maji Mohan Kanwar and Ors. v. The State of Rajasthan and Anr., AIR 1967 Rajasthan 264 a Division Bench of this Court held that "if the decree or order sought to be reviewed is passed by a Division Bench consisting of two Judges and if both of them continue to be attached to the Court, then the application for review must be heard by both of them. If only one of the two Judges continues to be attached to the Court and the other one has retired, or is no longer attached to that Court for any other reason, then the application should be heard by the Single Judge, who continues to be attached to that Court. If only one of the two Judges continues to be attached to the Court and the other one has retired, or is no longer attached to that Court for any other reason, then the application should be heard by the Single Judge, who continues to be attached to that Court. It cannot be heard by other Judges nor by the same Judge sitting with another Judge who was not a party to the original decree or order sought to be reviewed." In view of the above order of a Division Bench of this Court, I do not find any force in the preliminary objection raised by the learned Counsel which is, therefore, dismissed. 3. It is submitted by learned Counsel for the petitioner that Revenue Board partly allowed the appeal of the petitioner regarding two Khasras and the appeal of the petitioner regarding remaining two Khasras was rejected. It is submitted that petitioner filed DBCWP No. 4937/89, which was dismissed in limine by order under view. It is submitted that the non-petitioners also filed DBCWP No. 4419/89 against the same order passed by Revenue Board. In this writ petition direction for issue of notice was given on December 8, 1989 by a Division Bench consisting of Hon'ble Justice Shri G.K. Sharma as he was then and by me. An order was also passed on the same date staying the operation of the order of Revenue* Board mentioned above, regarding Khasra Mos 105/1 and 272/2. It is submitted that since both these writ petitions were filed against the same order of Revenue Board it was mandatory to have heard both the petitions at the same time as laid down by Rule 113 of Rules 1952. It is further submitted that petitioner had filed a caveat bearing No. 2151 on 16.3.1989 and notice of this caveat was also given to the opposite parties as also to their counsel by registered post. An affidavit to this effect has been filed. However, the petitioner came to know about filing of the writ petition by the non-petitioners for the first time on January 20, 1990 when the stay order Anx. 6 was served upon him. An affidavit to this effect has been filed. However, the petitioner came to know about filing of the writ petition by the non-petitioners for the first time on January 20, 1990 when the stay order Anx. 6 was served upon him. It is submitted that contradictory orders have been passed as the order of Revenue Board has been upheld while dismissing the writ petition filed by the petitioner whereas the same has been stayed in the writ petition filed by the non-petitioners regarding two Khasras mentioned above. 4. It is submitted by Mr. G.K. Garg, learned Counsel for the non-petitioners that Rule 113 is not applicable to the writ petitions. It is also submitted that neither he nor the non-petitioners received any notice of the caveat said to have been filed by the petitioner. Unless this had been done, the filing of caveat has no effect. It is pointed out that no postal receipts of the notice having been sent by registered post have been produced on record. It is also submitted that no contradictory orders have been passed, since the writ petition filed by the non-petitioners is yet to be disposed of. It is also submitted that petitioner could have applied for vacating the interim stay order, but this has not been done and instead this application for review has been filed, which does not lie. 5. A bare reading will show that Section-I of the Rules, 1952 deals with civil-revisions and appeals from appellate orders. Rule 113 is regarding connecting of cases. It provides that it will not be necessary to file any application for connecting cases arising out of same decree, judgment or order. It further provides that when any other cases are sought to be connected a properly stamped application shall be presented to the Registrar after giving notice to the advocates for all the other parties to such cases. Any party desiring to contest the application may file an objection within ten days. If no application has been filed, the Registrar may pass orders on the application. If an objection has been filed, the same shall be listed before the Court for orders. It is clear that Rule 113 deals with civil revisions and appeals from appellate orders. Any party desiring to contest the application may file an objection within ten days. If no application has been filed, the Registrar may pass orders on the application. If an objection has been filed, the same shall be listed before the Court for orders. It is clear that Rule 113 deals with civil revisions and appeals from appellate orders. The matter under consideration is regarding writ petitions that were filed against the order of Revenue Board and this order of Revenue Board is not an appellate order. Therefore, this rule is not applicable to the writ petitions as contended by the learned Counsel for the petitions. The learned Counsel placed reliance on Shri Krishan Gopal v. Haji Mohammed Muslim and Ors., AIR 1969 Delhi 126 . This was a matter regarding Second Civil Appeal, in which, cross-objections had been filed. It was held that the cross-objections have to be heard when the appeal is heard and as a general Rule the Court is expected to dispose of both the appeals and the cross-objections together by one judgment. This authority, is, therefore, of no help to the petitioner. The learned Counsel has also drawn my attention to order of this Court dated October 4,1988 passed in Civil Misc. Petition No. 238/87. The appeal was filed by the petitioner against the judgment dated December 22, 1979 passed by Additional District Judge No 1, Jaipur City, Jaipur. Against the same judgment State also filed an appeal. The appeal filed by the State was heard and exparte judgment was passed, by which, the appeal of the State was accepted while the other appeal filed by petitioner Rani Kiran Kumari remained unheard and un-decided. The main argument raised on behalf of petitioner was that on an application filed, the Hon'ble Acting Chief Justice had passed order to connect both the appeals. The other appeal was also listed on the same day in the cause list i.e. December 15,1986, but the names of the advocates were not mentioned. In this background the exparte judgment was recalled. As is clear from the facts mentioned above this was also regarding civil appeal and not regarding the writ petitions. Therefore, this order is also of no help to the petitioner. In this background the exparte judgment was recalled. As is clear from the facts mentioned above this was also regarding civil appeal and not regarding the writ petitions. Therefore, this order is also of no help to the petitioner. Sub-rule (3) of Rule 159 of the Rules 1952 deal with the filing of caveat, which interalia lays down that "the caveator shall-forth with after lodging his caveat, give notice thereof to the appellant, petitioner or applicant, as the case may be, if the appeal, petition or application has been lodged. Section 148A CPC provides redgarding right to lodge a caveat. Sub-section (2) provides that 'where a caveat has been lodged under Sub-section (1), the person by whom the caveat has been lodged (hereinaftf-r referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under Sub-section (1)." As already stated by learned Counsel for non-petitioners no notice was received either by him or by his clients regarding filing of caveat. The petitioner has also not produced either postal receipts of having sent the notice of caveat by registered post nor any acknowledgement due receipts have been filed. These documents are expected to be in possession of the petitioner. Therefore, no reliance can be placed on his affidavit filed in this regard when no documentary evidence which is in possession of the petitioner, has been produced.The learned Counsel for the petitioner placed reliance on Jairam v. Gopiram (3), in which it was held by a Division Bench of this Court the "where a mistake or error of law is not merely in the exposition of the law relevant to case, but is a more radical error and amounts to completely ignoring a positive rule of law, such error of law is one on the face of the record and is sufficient to satisfy the conditions of Order 47 Rule 1 CPC. As already stated above, no positive rule of law has been ignored while passing the order under review. This judgment is, therefore, of no help to the petitioner. 6. I, therefore, do not find any force in either of the review petitions, which are, therefore, dismissed with no order as to costs.Review Dismissed. *******