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2000 DIGILAW 1239 (ALL)

SANTOSH KUMAR v. NAGESHWAR PRASAD

2000-09-15

U.S.TRIPATHI

body2000
U. S. TRIPATHI, J. ( 1 ) BY means of this F. A. F. O. the appellant has challenged the order dated 13-1-1995 passed by Sri Bir Bhadra Singh the then learned VIIth Additional District Judge, Allahabad in Miscellaneous (Review) case No. 12 of 1991 allowing the review application and setting aside the judgments and order dated 13-2-1991 passed by his predecessor (XIth Additional District Judge, Allahabad) in Civil Appeal No. 267 of 1987 and fixing a date for fresh hearing of the said appeal. ( 2 ) THE facts giving rise to the present8 F. A. F. O. , briefly stated, were that the respondents Nageshwar Prasad and Smt. Gulab Kali, hereinafter, called the plaintiffs, filed suit No. 770 of 1986 against appellant Santosh Kumar, hereinafter called the defendant, for permanent injunction restraining the defendant from interfering in their peaceful possession over plot No. 287 ara 11 Bigha 17 Biswas, 13 dhoors situate at village Bhalua, Tappa Manda, Pargana Khairagarh, Tahsil Meja, District Allahabad with the allegations that Nawal Kishore was the Bhoomidhar in possession of the plot in suit. The said Nawal Kishore died on 27-9-1984 leaving Smt. Sonpati, his widow as his sole heir, who became Bhoomidhar of the said plot. Smt. Sonpati sold the said plot in favour of plaintiffs through a registered sale deed dated 5-6-1985 and put them in possession over it. The defendant, having no concern or connection with the plot in suit, threatened to take forcible possession over it; hence the suit on 6-8-1986. ( 3 ) THE defendant contested the suit mainly on the ground that Nawal Kishore had transferred the plot in suit in his favour through a registered sale deed dated 19-10-1984 for a consideration of Rs. 40,000, and put him in possession over it. Nawal Kishore had three daughters namely Smt. Phool Kali married with plaintiff No. 1, Gulab Kali married with one Prem Shankar and Anar Kali married with defendant. Since, Nawal Kishore had no male issue, he and his wife Smt. Sonpati intended to sell the plot in suit, which the defendant agreed and sale deed was executed. After execution of sale deed the defendant applied for mutation of his name. In mutation proceeding Smt. Sonpati admitted the execution of sale deed and possession of defendant over plot in suit. After execution of sale deed the defendant applied for mutation of his name. In mutation proceeding Smt. Sonpati admitted the execution of sale deed and possession of defendant over plot in suit. When plaintiff No. 1 came to know about the sale deed he obtained another sale deed dated 5-6-1985 in favour of him and his wife from Smt. Sonpati much after death of Nawal Kishore. Smt. Sonpati was not competent to execute sale deed and alleged sale deed had no effect on the title of defendant. He further contended that suit was barred by the provisions of Section 331 of U. P. Z. A. and L. R. Act. ( 4 ) THE trial Court framed following issues, arising out of the pleadings of the parties :-1. Whether the suit was under valued and Court-fee paid was insufficient?2. Whether the suit was barred by provisions of Section 331 of U. P. Z. A. and L. R. Act?3. Whether the plaintiff was owner in possession of the property in suit?4. Whether Nawal Kishore died on 27-9-1984 as alleged in paragraph 2 of the plaint?5. Relief. ( 5 ) ON considering the evidence of the parties of the trial Court held that suit was properly valued and Court-fee paid was sufficient. Since the suit was for permanent injunction, it was not barred by provisions of Section 331 of U. P. Z. A. and L. R. Act. It further held that plaintiffs could not prove that Nawal Kishore died on 27-9-1984 and the plaintiffs also failed to prove their title and possession over the plot in suit. With these findings the trial Court dismissed the suit of the plaintiffs, vide judgment and decree dated 30-5-1987. ( 6 ) AGGRIEVED with the judgment and decree of the trial Court, the plaintiffs filed Civil Appeal No. 287 of 1987. The First Appellate Court concurred with the findings of the trial Court and dismissed the appeal, vide order dated 13-2-1991. Thereafter, on 6-3-1991 the plaintiffs filed a review application under Order 47, Rule 1, C. P. C. ( 7 ) DURING pendency of review petition, the plaintiffs applied for filing papers as per list 19/c, which was allowed by the Court. The Court hearing the review application also permitted the plaintiffs to obtain expert report and plaintiffs accordingly filed expert report, which was taken on record. The Court hearing the review application also permitted the plaintiffs to obtain expert report and plaintiffs accordingly filed expert report, which was taken on record. On hearing learned counsel for the parties, the Court hearing the review application held that there was force in the contention of the plaintiffs that paper No. 49-C (the report of Pradhan Gram Sabha, Bhaluwa) was not proved according to law and trial Court wrongly relied the same. The important evidence was not taken on record by the Appellate Court and the same was taken on record. Smt. Sonpati proved the execution of sale deed and her evidence was wrongly interpreted. The evidence of Smt. Sonpati regarding death of Nawal Kishore, prior to three years of her evidence was wrongly discarded. The case of the plaintiff was proved by the written statement of Smt. Sonpati (paper No. 20-C) filed in mutation proceeding and Trial Court committed mistake in reading her evidence. The evidence of Sonpati was wrongly interpreted by taking up certain words from her statement and expert report9 could not be produced before the Trial Court by the plaintiffs on exercise of due diligence. It further held that grounds 6, 7, 8 and 12 taken in review petition and ground No. 5 taken in appeal were forceful points, which were not considered by the Appellate Court and that was a mistake apparent on the face of record. With these findings, the Reviewing Court allowed the review application by the impugned order as mentioned above. ( 8 ) THE above order on the review application has been challenged in this First Appeal Form Order. ( 9 ) I have heard Sri Sankatha Rai, learned counsel for the appellant and Sri G. N. Verma, learned counsel for the respondents in detail and have gone through the record. ( 8 ) THE above order on the review application has been challenged in this First Appeal Form Order. ( 9 ) I have heard Sri Sankatha Rai, learned counsel for the appellant and Sri G. N. Verma, learned counsel for the respondents in detail and have gone through the record. ( 10 ) IT was contended that by the learned counsel for the appellant that the Court hearing review application has exceeded its jurisdiction and the order under appeal shows that the Court was sitting as Appellate Court over the judgment of his predecessor, which was beyond the scope of the provisions of Order 47, Rule 1, C. P. C. On the other hand, learned counsel for the respondents contended that the First Appellate Court had committed mistakes pointed out in the order under appeal, which were apparent on the face of record and therefore, the Court rightly allowed the review application. ( 11 ) IT is not disputed that Court hearing review application has limited scope. It is also well settled that while exercising powers under Order 47, Rule 1 C. P. C. the Reviewing Court does not sit in appeal on the order of its predecessors and cannot reasses the evidence. It is also well settled that the review power cannot be exercised on the ground that earlier decision was erroneous on merit or that different view was possible than the one taken in the earlier decision. The scope of review is enumerated in Order 47, Rule 1, C. P. C. , which reads as under :- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred. The scope of review is enumerated in Order 47, Rule 1, C. P. C. , which reads as under :- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes,and who, from the discovery of new and important matter or evidence 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 made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appearing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review. Explanation- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any othher case, shall not be a ground for the review of such judgment. " ( 12 ) THUS, it is clear that review is possible only when (1) from discovery of new and important matter or evidence which after the exercise of due deligence was not within knowledge or could not be produced at the time when order was passed. (2) there was mistake or error apparent on the face of the record, and (3) there is any other sufficient reason. ( 13 ) THE learned Reviewing Court has allowed the review application on the following grounds :-1. (2) there was mistake or error apparent on the face of the record, and (3) there is any other sufficient reason. ( 13 ) THE learned Reviewing Court has allowed the review application on the following grounds :-1. The plaintiff in order to prove the death of Nawal Kishore on 27-9-1984 filed extract of death and birth register (paper No. 12/c) but it was discarded on the basis of report of Tribhuvan Singh, Pradhan, Gram Sabha Bhalua sent to Station Officer, Police Station Koraon (paper No. 49/c ). The report of Pradhan (paper No. 49/c) was not proved according to law and therefore the Court committed legal and factual mistake in relying on it. 2. In the above context of Kutumb Register (paper No. 12/c) duly certified by Pradhan and Secretary was filed by plaintiffs which was admissible under law was not relied on. The plaintiffs moved application for permission file duly certified extract of0 Kutumb Register (paper No. 20/c) alleging that it could not be filed earlier due to bona fide mistake of their counsel and therefore above application be allowed and paper be admitted in the interest of justice as it could not be filed earlier due to bona fide mistake. 3. The evidence of plaintiff Nageshwar, regarding date of death of Nawal Kishore was rejected on the basis that he denied that Smt. Phool Kali was his wife while this fact was disclosed by Smt. Sonpati. In this connection copy of Insurance Policy, (paper No. 14/c) extract of Kutumb Register (paper No. 12/c) and sale deed excuted by Smt. Sonpati in favour of Smt. Gulab Kali showed husbands name of Smt. Gulab Kali as Nageshwar Prasad. But no finding was recorded on above important documentary evidence. Smt. Sonpati being illiterate and village lady was confused in telling the names of her three daughters and their respective husbands. Not relying on above documents was a mistake apparent on the face of record. 4. The plaintiffs and defendant alleged different dates of death of Nawal Kishore, according to their interest. But Smt. Sonpati did not appear interested in litigation of her two sons-in-law. There was no reason to disbelieve her evidence recorded on 12-3-1987 that her husband died three years ago on second day of "sukla Pakchha" of month of "kuar". But no reason was given to discard her above evidence. But Smt. Sonpati did not appear interested in litigation of her two sons-in-law. There was no reason to disbelieve her evidence recorded on 12-3-1987 that her husband died three years ago on second day of "sukla Pakchha" of month of "kuar". But no reason was given to discard her above evidence. On this ground the impugned judgment stoods vitiated and review application is liable to be allowed. 5. The copy of written statement of Smt. Sonpati (paper No. 36/c) in mutation proceeding was forged and on the basis of it mutation order dated 22-4-1985 was obtained which is clear from application of Smt. Sonpati dated 25-4-1985 (paper No. 20-C) moved before Tahsildar on the basis of which mutation order was stayed. Smt. Sonpati admitted th second written statement. But Appellate Court relied on confusd statement of Smt. Sonpati. When two different written statements were filed, it was incumbent to draw the attention of the witness (maker of written statements ). The Appellate Court, therefore, committed mistake in not interpreting the statement of Smt. Sonpati in the light of written statement dated 25-4-1985 (paper No. 20/c ). 6. Smt. Sonpati stated in her evidence that she executed sale deed for a consideration of Rs. 100,000. 00 while defendant contended to have obtained sale deed for a consideration of Rs. 40,000. 00. She further stated that her younger son-in-law had paid her Rs. 100,000. 00. The conclusion regarding admission of sale deed in favour of defendant by Smt. Sonpati was thus based on mis-conception and confused part of her evidence. ( 14 ) SO far the application move by plaintiffs for obtaining expert opinion regarding disputed thumb impression of Nawal Kishore on the sale deed in favour of defendant is concerned, there was no specific pleadings on the part of the plaintiffs that Nawal Kishore had not executed any sale deed in favour of defendant in his life time and that the impugned sale deed did not bear the thumb impression of Nawal Kishore. The defendant in paragraph 13 of his written statement clearly pleaded that sale deed dated 19-10-1984 was executed in his favour by Nawal Kishore after taking sale consideration of Rs. 40,000. 00. Thereafter, no replication was filed by the plaintiffs. No doubt on 22-4-1987 the plaintiffs moved an application for obtaining report of finger print expert. The defendant in paragraph 13 of his written statement clearly pleaded that sale deed dated 19-10-1984 was executed in his favour by Nawal Kishore after taking sale consideration of Rs. 40,000. 00. Thereafter, no replication was filed by the plaintiffs. No doubt on 22-4-1987 the plaintiffs moved an application for obtaining report of finger print expert. On that date, the case was fixed for 24-4-1987 for disposal of application (44-C ). Perusal of order sheet of the Trial Court dated 24-4-1987 shows that the learned counsel for the plaintiffs politely did not press the application paper No. 44-C. Therefore, the application was rejected on 25-4-1987. Again application was moved for recalling the order dated 24-4-1987, but the trial Court did not find fit to recall the above order as the prayer was made at belated stage. This point was also agitated before the Appellate Court, but the Appellate Court did not find it proper to allow the above application. Production of additional (evidence) before the Appellate Court is governed by Order XLI, Rule 27, C. P. C. , which says that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or1 (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,the appellate Court may allow such evidence or document to be produced, or witness to be examined. ( 15 ) PERUSAL of the judgment of the Appellate Court shows that though this ground was taken in the memo of appeal, but the point was not pressed before the Appellate Court as there is no finding on this point by the Appellate Court. It shall, therefore, be deemed that even if the point was pressed, it did not find favour of the Appellate Court and the point shall be deemed to have been nagatived. It shall, therefore, be deemed that even if the point was pressed, it did not find favour of the Appellate Court and the point shall be deemed to have been nagatived. If it is treated as a mistake committed by the Appellate Court, it cannot be said a mistake apparent on the face of record. It was a point for judicial review by the higher Court and recording another finding on this point would amount sitting over as Appellate Court by the successor over the judgment of his predecessor. ( 16 ) IT can also not be said that expert opinion was liable to be admitted on the ground that aftr exercise of due diligence, the plaintiffs could not obtain expert report during trial of the suit as there was no such averment or proof in the application. It was held by a Division Bench of this Court in M/s. Banaras Electric Light and Power Co. Ltd. v. The Collector, Varanasi, AIR 1982 Allahabad 355, that where the only averment in the rejoinder filed in support of review application which was filed on the ground of discovery of new and important evidence, was that the officers dealing with the case had no knowledge and had no occasion to know about the notice given by the petitioner company to the officer and, therefore, could not bring it is the to the notice of the Court at the time when the writ petition was heard, it could be said that neither the affidavit filed along with the review application nor in the rejoinder affidavit it had been stated that even after exercise of due diligence the notice was not within the knowledge of the officers or could not be produced by them at the time when the writ petition was heard and decided. Therefore the review application filed on behalf of the officers to the writ petition would not be maintainable, as the requirement of the exercise of due diligence at the appropriate time constitutes the very basis for maintaining a review application filed on the ground of discovery of new and important matter of evidence. Morever, no specific ground was taken in memo of appeal that plaintiffs even after exercise of due diligence the document was not within his knowledge. Morever, no specific ground was taken in memo of appeal that plaintiffs even after exercise of due diligence the document was not within his knowledge. ( 17 ) THE Reviewing Court has laid much stress on the ground that extract of death register was rejected by the trial Court as it was not properly and duly certified by Pradhan and thereafter he filed a correct copy and which could not be filed due to bona fide mistake of counsel. This, finding of Reviewing Court is also not acceptable. Document filed by plaintiffs was not admissible in evidence and was relied on by trial Court and thereafter filing of another certified copy after removing defect cannot be treated that document could not be filed despite of exercise of due diligence. Therefore, the Reviewing Court was not justified in allowing the review on the above grounds. ( 18 ) THE other grounds taken by the Review Court that the Appellate Court committed mistake in appreciating the evidence of Smt. Sonpati on wrong assumption and did not consider her written statement in the mutation proceeding, which showed that she had not admitted execution of sale deed executed by Nawal Kishore in favour of defendant. The trial Court as well as the Appellate Court have considered the evidence of Smt. Sonpati in this regard and I find that wrong appreciation of evidence by the Appellate Court cannot be treated as an error apparent on the face of the record. As held by the Apex Court in the case of Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhary, AIR 1995 SC 455 "error apparent on face of record" means an error which strikes one on mere looking at record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The observation of Apex Court in the case of Satyanarayan Hegde Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 that "an error (sic) to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. The observation of Apex Court in the case of Satyanarayan Hegde Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 that "an error (sic) to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the2 powers of the superior Court to issue such a writ" was also relied on. The appreciation of evidence of Smt. Sonpati and other witnesses by the Appellate Court was made on long drawn process of reasoning on points advanced by the parties. Assuming that another view was possible on the appreciation of the evidence of Smt. Sonpati and other witnesses, it cannot be a ground for review, but it is for the superior Court to take its own view on reappraisal of the evidence, if the law permits so. ( 19 ) IT was further held by Apex Court in the case of Hari Vishhu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 that no error can be said to be apparent on the face of the record, if it requires an examination or argument to establish it, may afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident may not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. ( 20 ) IT was also held by the Apex Court in the case of M/s. Northern India Caterers (India) Ltd. v. Lt. ( 20 ) IT was also held by the Apex Court in the case of M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, AIR 1980 SC 674 : (1980 Tax LR 1657), that an error apparent on the face of the record exists if, of two or more views canvassed on the point, it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record. ( 21 ) THE grounds taken by the Reviewing Court for allowing the review petition, referred to above, show that it has re-assssed the evidence of the parties and pointed out defects in the judgment of Appellate Court and had arrived at another view, which was beyond the scope of review provided under Order 47, Rule 1 as none of the ground satisfied the test given in the said Rule. It appears that the Review Court sat as Appellate Court on the judgment of its predecessor and tried to substitute new finding. It has been held by the Apex Court in the recent case of Lily Thomas v. Union of India, (2000) 6 SCC 224 : ( AIR 2000 SC 1650 ), that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. From the perusal of judgment of Appellate Court it appears that there was no mistake or error apparent on the face of the record requiring a review. As error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and search. It must be an error of inadvertence. The words "any other sufficient reason" appearing in Order 47, Rule 1, CPC must mean "a reason sufficient on grounds at least analogous to those specified in the rule". It must be an error of inadvertence. The words "any other sufficient reason" appearing in Order 47, Rule 1, CPC must mean "a reason sufficient on grounds at least analogous to those specified in the rule". No such contingency existed in the case and therefore, the Reviewing Court acted beyond the scope of Order 47, Rule 1, CPC. Therefore, the impugned order is liable to be set aside. ( 22 ) THE appeal succeeds and is, accordingly, allowed and the order under appeal is set aside. Appeal allowed.