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1999 DIGILAW 730 (GUJ)

LILABEN v. RAJENDRABHAI R. GURJAR

1999-12-03

D.C.SRIVASTAVA

body1999
D. C. SRIVASTAVA, J. ( 1 ) THIS is an application for review of the order passed by me in Civil Revision Application No. 321 of 1998. ( 2 ) SHRI J. T. Trivedi, learned counsel for the applicant and Shri H. R. Prajapati who was representing the applicant in the aforesaid Civil Revision Application were heard. The order sought to be reviewed reads as under:-"shri H. R. Prajapati, ld. counsel for the revisionist states that the parties have settled the matter outside the court and in view of the settlement he may be permitted to withdraw this revision. The revision is accordingly dismissed as withdrawn. Interim relief stands vacated. " ( 3 ) THE above order was passed on 14. 10. 1998. It is this order which is sought to be reviewed through this application. ( 4 ) THE first point for consideration is whether the review application is maintainable on the facts of the case or not. The application is styled as application for review. The grounds of review are contained in Order 47 Rule 1 of C. P. C. Under this provision, review can be granted only on three grounds. The first is that where discovery of new and important matter or evidence has been made by the party applying for review which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order was made. Secondly on account of some error or mistake apparent on the face of the record and thirdly for any other sufficient reason. The words `any other sufficient reason had been interpreted to mean, any reason analogous to the earlier two grounds, namely, discovery of new and important matter or evidence which was not available when the order was passed or when there is error apparent on the face of the record. ( 5 ) IT is to be noted that the impugned order was not passed on merits of the case. On the other hand in view of the settlement of the dispute amongst the parties outside the court, the learned counsel for the revisionist stated that the revision may be permitted to be withdrawn. Shri H. R. Prajapati had filed the revision. He had also filed vakalatnama on behalf of the revisionist-applicant. On the other hand in view of the settlement of the dispute amongst the parties outside the court, the learned counsel for the revisionist stated that the revision may be permitted to be withdrawn. Shri H. R. Prajapati had filed the revision. He had also filed vakalatnama on behalf of the revisionist-applicant. Therefore, it is obvious that the order sought to be reviewed was not passed after hearing the counsel for the parties nor factual controversy or legal controversy was decided in the impugned order. It is thus an order simply permitting the revisionist to withdraw the revision. There is, therefore, no question of any error or mistake on the face of the order sought to be reviewed or on the face of the record inasmuch as the record was not examined and there was no occasion to examine the record at the time of passing the order in question on 14. 10. 1998. ( 6 ) IT is also not a case where review is sought on the ground of discovery of any new or important material evidence or fact which was not within the knowledge of the applicant when the order was passed. Consequently on the second ground also no review can be granted. ( 7 ) THE last ground is also not available because any other sufficient reason should be interpreted as reasons analogous to the earlier two reasons. Thus, out of the three grounds contemplated for review none of the grounds is attracted in the instant case, hence review cannot be granted. ( 8 ) SHRI J. T. Trivedi however contended that the impugned order may be set aside and the Civil Revision Application No. 321 of 1998 be restored. This prayer cannot be accepted because the application under consideration is not a restoration application. The revision was not dismissed in default, hence on the provisions analogous to order 9 Rule 9 of C. P. C. no restoration can be granted. ( 9 ) SHRI J. T. Trivedi, however, contended that review is permissible and maintainable and in support of his contention he has referred to two cases before me. ( 10 ) THE first case is of Devendra Nath Vs. Ram Rachpal AIR 1926 OUDH 315. This case is apparently distinguishable on facts. Here a compromise decree was passed. ( 9 ) SHRI J. T. Trivedi, however, contended that review is permissible and maintainable and in support of his contention he has referred to two cases before me. ( 10 ) THE first case is of Devendra Nath Vs. Ram Rachpal AIR 1926 OUDH 315. This case is apparently distinguishable on facts. Here a compromise decree was passed. An application for setting aside compromise decree was moved on the ground that the compromise was not filed by a person having authority to make or present the compromise. Since authority of the person making and presenting compromise was challenged it was held that under inherent powers contained under Section 151 or under section 153 of the C. P. C. or under the powers of review, such compromise could be set aside. In the case before me, no compromise was filed before me in the Civil Revision. On the other hand, in view of the settlement arrived at between the parties outside the court that a request was made by Shri Prajapati to withdraw the Civil Revision Application. The court was therefore not required to ascertain what were the terms of settlement arrived at between the parties outside the court on the basis of which the revision was sought to be withdrawn. On mere statement of Shri H. R. Prajapati, the revision could be permitted to be withdrawn. ( 11 ) THE other case referred to by Shri Trivedi was Onkar Bhagwan Vs. Gamna Lakhaji and Co. AIR 1933 Bombay 205. Here also the facts were altogether different. The decree on the basis of compromise was passed. Appeal was preferred against that decree. In appeal, the party disowned the authority of the pleader or agent to compromise the suit. It was held on these facts that appeal against such compromise decree was not maintainable and the remedy of the aggrieved party is to apply for review or under Section 151 to the Lower court. In the case before be no such compromise was filed by Shri Prajapati nor it was a case where order was passed by me in terms of any compromise which was filed before me in the court. Thus, these two cases are apparently distinguishable and on the strength of these cases review cannot be granted. In the case before be no such compromise was filed by Shri Prajapati nor it was a case where order was passed by me in terms of any compromise which was filed before me in the court. Thus, these two cases are apparently distinguishable and on the strength of these cases review cannot be granted. ( 12 ) SHRI Trivedi however contended that Shri Prajapati should have requested the court for passing consequential and visitation order and he should not have requested for withdrawal simpliciter. On the basis of this ground, review cannot be granted. Thus, what was stated by Shri Prajapati was sufficient to dismiss the revision as withdrawn and since no further consequential order was prayed for it was not included in the order sought to be reviewed. As such it cannot be said that the order sought to be reviewed suffers from any manifest error of law. If the matter was not heard and decided on merits it cannot be said that any error or mistake of law occurred while passing the order under consideration. ( 13 ) IT was also challenged that Shri Prajapati had no authority from the applicant to withdraw the revision. On the face of it this contention cannot be accepted. Vakalatnama of Shri Prajapati on the file of the Civil Revision Application has been examined and in this the applicant revisionist has clearly authorised Shri Prajapati to appear at and plead on her behalf in above matter as well as to negotiate for compromise or to withdraw or compromise on her behalf in the above matter at any stage. Thus express authority was given by the applicant to Shri H. R. Prajapati inter alia to withdraw the Civil Revision at any stage. Shri Prajapati cannot be said to have acted in a malafide manner nor is there any allegation of mala fide on the part of Shri Prajapati nor it can be said that he acted in collusion with the other side. Shri Prajapati has filed his affidavit. Paras 2 to 4 of the affidavit clearly show that he had acted in a bona fide manner and thereafter he made statement withdrawing the aforesaid Civil Revision. He has deposed that the settlement between the parties was arrived at his office in the month of September 1998 and talks continued for about four to five hours right from 11. Paras 2 to 4 of the affidavit clearly show that he had acted in a bona fide manner and thereafter he made statement withdrawing the aforesaid Civil Revision. He has deposed that the settlement between the parties was arrived at his office in the month of September 1998 and talks continued for about four to five hours right from 11. 00 a. m. The matter was discussed between the parties. Son of the parties aged about 16 years was also present. He was also consulted for about an hour and during the said meeting it was agreed amongst the parties that they cannot live together and there is no chance of reunion, hence they mutually agreed to get separated for ever. The applicant agreed and accepted that if the opponent pays Rs. 60,000. 00 to the applicant she will settle the dispute in question. The amount was paid to Shri Prajapati who is still holding the same and despite his written request through registered A. D. post the said amount has not been accepted by the applicant. After the aforesaid meeting Shri Prajapati was instructed by the applicant to withdraw the proceedings in Civil Revision Application and then the above statement was made. There is also talk for withdrawal of criminal complaint filed by the respondent against the brother of the applicant. This counter affidavit was tried to be controverted by the rejoinder affidavit but in rejoinder affidavit there is no specific denial of what has been deposed by Shri H. R. Prajapati in paragraphs two to four of the counter affidavit. ( 14 ) IF certain facts are alleged and deposed in the counter affidavit and those facts are not specifically denied rather evasively denied it can be said that there was implied admission of what has been stated in paragraphs two to four of the counter affidavit of Shri Prajapati. In para two of the rejoinder affidavit there is evasive denial that any settlement took place between the parties. It is further said that though there was talk for the same. The insistence of the applicant or Shri Trivedi that Shri Prajapati should have got the memorandum prepared and should have obtained signature of the applicant thereupon is not enough for granting review. It is further said that though there was talk for the same. The insistence of the applicant or Shri Trivedi that Shri Prajapati should have got the memorandum prepared and should have obtained signature of the applicant thereupon is not enough for granting review. Since no memorandum of compromise was filed nor was proposed to be filed, Shri Prajapati was not required to prepare a memorandum of agreement which took place amongst the parties outside the court and which was never intended to be filed by the parties before the court. As such Shri Prajapati cannot be said to have acted beyond his authority given by the applicant in the vakalatnama nor any mala fide or misconduct can be attributed to Shri Prajapati. ( 15 ) BONAFIDE of Shri Prajapati is further coming from the counter-affidavit that he received Rs. 60,000. 00 from the opponent for payment to his client and he made written request through registered A. D. post to the petitioner to accept the same and also sent ordinary letters asking the applicant to receive the amount but the the same was not collected. So far as such statement is concerned, it should not have been made unless true, on oath in the affidavit of Shri Prajapati, who admits that he is holding Rs. 60,000. 00 with him under instructions and on behalf of the applicant. For the reasons stated above, I do not find that there exists any ground for granting review or for setting aside the order under review. The application has no merit and is hereby dismissed. No order as to costs. .