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1992 DIGILAW 150 (CAL)

Parijan Bibi v. Sk. Jan Mohammad

1992-04-08

J.N.Hore

body1992
Judgment 1. THIS is an application by the appellants under Order 47 Rule 1 of the Code of Civil Procedure for review of the judgment and decree passed by me in S. A. No. 744 of 1977 on 28-2-89. 2. RESPONDENT-O. P. No. 1 filed Title Suit No. 442 of 1964 before the second court of Munsif, Contai for declaration of title and for recovery of possession by removing the structure constructed by the defendants on l he suit land which appertains to plot nos. 285 and 286 and the middle portion of plot no. 287. Plaintiff claimed title to the disputed property by virtue of purchase from one Narendra Patra by a registered Kobala dated 17-3-63. Narendra Patra in his turn purchased the same from Ruman Bibi and two others who got the suit property exclusively in their share by the virtue of a final decree passed in a suit for partition. The defendants contests the suit by filing a written statement in which it was pleaded, inter alia, that Ruman Bibi did not execute the Kobala dated 2-8-62 in favour of Narendra Patra as alleged by the plaintiff and the plaintiff did not derive any right title and interest in the suit property by his alleged purchase from Narendra Patra. It was the defence case that Ruman bibi was dead at the time of execution of the Kobala on 2-8-62. This plea had to be given up at the time of trial since Ruman Bibi was examined by the plaintiff as P. W. 1. The Trial Court held that the sale in favour of Narendra Patra, predecessor-in-interest of the plaintiff was void in as much as Ruman Bibi, one of the vendors, was then a minor. Accordingly the Trial Court dismissed the suit. The lower Appellate Court overruled the finding of the Trial Court that the sale by Ruman Bibi and two others, in favour of Narendra Patra by a registered kobala dated 2-8-62 (Ext. 1) was are on the ground that the age of Ruman Bibi was not an issue and it was not the defence case that Ruman Bibi was a minor at the time of the execution of Kobala. 1) was are on the ground that the age of Ruman Bibi was not an issue and it was not the defence case that Ruman Bibi was a minor at the time of the execution of Kobala. The learned Subordinate Judge was of the opinion that in the facts and circumstances of this case it was extremely unreasonable to come to a finding on the basis of an arithmetical calculation regarding the age of Ruman Bibi at the time of the execution of the document merely relying upon her statement in the cross-examination that she was 25 years old on the date of deposition on 1975. The learned Subordinate Judge held that the plaintiff acquired title to the disputed property and the defendants had no manner of right, title and interest in the same. He, therefore, allowed the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit. 3. THE only point that was urged before me at the time of hearing of the second Appeal was that the learned Subordinate Judge committed an error in reversing the finding of the learned Munsif that Ruman Bibi was a minor at the time of execution of Kobala (Ext. 1); and consequently the sale was void in view of the evidence of Ruman Bibi herself that she was 25 years old on the date of deposition in 1975. It was contended that this finding of the learned subordinate Judge suffered from perversity and illegality in as much as on her own showing Ruman Bibi was a minor in 1962 when Ext. 1 was executed by her. This contention was not acoepted by this Court and the appeal was dismissed affirming the judgment and decree of the lower Appellate Court. The appellants seek to review the said judgment and decree passed by me and rehear the appeal on the ground that there was error apparent on the face of the record. 4. MR. Bagchi, learned Advocate for the petitioner-appellants has contended that though no specific plea was taken by the defence that Ruman bibi was minor at the time of the execution of the Kobala by her and no issue was framed in this regard, still the statement of Ruman Bibi (P. W. 1) regarding her age in the cross-examination shows that she was incompetent to execute the document in 1962. As this is apparent on the face of record, the review petition should be allowed and the second appeal should be reheard. Mr. Bhunia, learned Advocate for the respondent-Opposite Party, contends, on the other hand, that this is not a proper ground of review under Order 47 Rule 1 of the Code of Civil Procedure. In my opinion, the contention of Mr. Bagchi is devoid of substance and must be rejected. There is no substance in the review petition which is entirely a misconceived one. The point raised before me was elaborately considered in my judgment under review. Relevant portion of the judgment may be quoted as follows: - "its was nowhere alleged within the four corners of the written statement that Ruman Bibi was a minor at the time of the execution of the sale deed. The only ground on which the sale deed executed by ruman Bibi and others in flavour of Narendra Patra, the predecessor in interest of the plaintiff was challenged is that Ruman Bibi did not execute the document at all. It was the defence case that Ruman Bibi was dead at the time of the execution of the Kobala and in support of it the defendants produced an extract from the death register. This defence had to be given up at the time of trial inasmuch 'is Ruman bibi was examined by the plaintiff as PW 1 who proved execution of the document by her. So the minority of Ruman Bibi was not at issue at all. The defendants could not be allowed to take a new plea at the time of trial and cross-examine Ruman Bibi on the point of her age. As no plea of minority of Ruman Bibi was taken by the defence, the evidence with regard to her age could not be looked into and the learned Subordinate Judge was right in holding that the learned munsif committed an error by relying on the statement of PW 1 in the cross-examination regarding her age. In Siddik Mohamed Shah vs. ML Saran and Ors. , reported in AIR 1930 Privy Council 57, the Privy council 1 has held that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. In Siddik Mohamed Shah vs. ML Saran and Ors. , reported in AIR 1930 Privy Council 57, the Privy council 1 has held that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. The appellant cannot, therefore, be allowed to rely upon the statement-of PW 1 regarding her age in support of the plea of minority which was never taken by the defendants in the written statements. Moreover Exhibit 1 does not go to indicate that Ruman Bibi was minor at the time of execution. Ruman Bibi came forward to support the plaintiffs claim as plaintiffs witness and has not put forward any claim adverse to the interest of the plaintiff. She is an illiterate village woman. In these facts and circumstances, her bald statement in the cross-examination that she was 25 years old at the time of the deposition cannot be taken too literally for the purpose of determining her age precisely. She could not have personal knowledge about the date of her birth and her testimony does not disclose how she has derived her knowledge about her age it is quite likely that her testimony in this regard was based on confusion or conjecture. There is no other evidence by any competent person as to her age. In these circumstances, the learned subordinate Judge was right in not placing much reliance upon the statement of PW 1 with regard to her age. The finding of the learned subordinate does not suffer from any illegality or perversity, and there is no substance in the appeal. " 5. THE above will clearly show that there is no mistake or error apparent on the face of record. In the garb of review the appellants really challenge the correctness of the decision. In the case of M/s. Northern India Caterers (India)Ltd. Vs. Lt. Governor Delhi AIR 1980 Supreme Court 674, the Supreme Court has held that a party is not entitled to seek a review of a judgment merely for the purpose of a rehearing and a fresh decision of the case. The normal principal is that a judgment pronounced by the Court is final, and the departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. The normal principal is that a judgment pronounced by the Court is final, and the departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. In a civil proceeding, an application for review is entertained only on any of the grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of any error apparent on the face of the record. But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. The Supreme Court in Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma and others, AIR 1979 SC 1047 pointed out that the power of review inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. This power of review, however, has its own limitations. It was observed that this power may be exercised on discovery of new and important matter of evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could mot be produced by him at the time when the order was made. This power may also be exercised where some mistake or error apparent on the face of the record is found. It may also be exercised on any analogous ground. It cautioned that review is not permissible on the ground that decision was erroneous; on merits. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the Subordinate Court. 6. TO be a proper ground for review there must be some discovery of new and important matter or evidence which in spite of exercise of due diligence eluded the applicant's knowledge on could not be produced by him at the time when the decree was passed or order was made. An application for review can also be allowed on account of some mistake or error apparent on the face of the record or for arty other sufficient reason. An application for review can also be allowed on account of some mistake or error apparent on the face of the record or for arty other sufficient reason. A review is permissible only on the grounds specified above as included under Order 47 Rule 1 of the Code of civil Procedure. The expression "sufficient" occurring in Order 47 Rule 1 would only be read as meaning sufficient on the ground at least analogous to those specified in the rule (Chajju Ramvs. Neki, 49 LA 144; M.M. Cathlicos vs. MP. Athanasius, AIR 1954 SC 526 ; Anath Bandhu Basak vs. Raghunath Adhikari 88 CWN 804). The ground of review as urged by the appellant-petitioners does not conform to the rules under Order 47 Rule 1. It does not show any error apparent on the face of the record. The effect on the statement of Ruman Bibi in the cross-examination that she was aged 25 years on the date of her deposition was considered elaborately by me in the judgment and its was held that in the absence of plea of minority the statement could not be looked into in order to ascertain her age which was not at all an issue in the suit. It was also held hat this bald statement, by an illiterate village woman in cross-examination who could not have personal knowledge could not be taken too literally and no reliance could be placed upon it in the absence of any evidence of a competent person. By this review application the appellants really challenge the finding of this Court on merits and urge this court to sit in appeal against its own decision which is not permissible in law. The application for review is accordingly dismissed. Application dismissed.