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2003 DIGILAW 718 (RAJ)

Madan Gopal Sharma (Deceased) through v. State of Rajasthan

2003-05-09

A.K.PUROHIT

body2003
PUROHIT, Member – This review petition has been filed under Section 86 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the Act) against the judgment of Single Bench of the Board dated 4.4.2000, by which the revision petition was dismissed. (2). Revision petition against the judgment of learned Revenue Appellate Authority, Ajmer dated 27.2.99, was heard by learned Single Bench and after hearing counsels for both the parties this revision petition was dismissed. Against his judgment of Single Bench of the Board dated 4.4.2000 the review was filed on 25.8.2000 beyond the period of limitation, therefore, an application under Section 5 of the Limitation Act was filed along with the memo of review. The learned counsel for the non- petitioner has raised a preliminary objection regarding the delay ad has submitted that this review deserves to be dismissed on the ground of delay. Explaining the delay learned counsel for the petitioner has submitted that information of decision of the revision petition was sent to his client but on account of his clients fathers death on 17.7.2000, he could not get this information and subsequently when he came to know about the judgment of the Board in revision petition, he rushed to his counsel and approached him and contacted him on 3.8.2000 and also applied for certified copy of the judgment which was received on 4.8.2000, then he went to his village for making arrangements for fee and expenses for filing this review petition and returned back on 22.8.2000. Thereafter this review petition has been filed on 25.8.2000. (3). The learned counsel of the petitioner submits that in facts and circumstances stated above the delay in filing this review petition is not intentional and deserves to be condoned. On the other hand, learned counsel for non-petitioner has opposed this application for condonation of delay and has submitted that the petitioner has not been able to give satisfactory explanation in the application of condonation of delay. Therefore, this view petition should be dismissed on this ground alone. (4). Counsels of both the parties during arguments on the question of delay have relied on the authorities of the Board, Honble High Court and Honble Supreme Court. (5). Therefore, this view petition should be dismissed on this ground alone. (4). Counsels of both the parties during arguments on the question of delay have relied on the authorities of the Board, Honble High Court and Honble Supreme Court. (5). The Board of Revenue in the case Madho Singh vs. Khem Ram (1), dealing with section 5 of the Limitation Act 1963, has held as under :- LIMITATION ACT, 1963 SECTION 5 :- ``Rules of limitation not meant to destroy the right of party but to advance substantial justice - When parties do not resort to dilatory tactics, condonation of delay is justified. According to the Apex Court the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching court in different situations is not because on the expiry of such time a bad cause would transform into good cause. Rules of limitation are not meant to destroy the right of party, they are meant to see that parties do not resort to dilatory tacties but seek their remedy promptly. Law of limitation fixes time span for such legal remedy for the redress of the legal injuries so suffered. (6). The Honble Rajasthan High Court in a case Urban Improvement Trust Vs. Poonam Chand (2), considering the delay in filing the appeal has held as under :- LIMITATION ACT, 1963, SECTION 5 :- ``Dismissal of appeal by lower appellate court on ground of limitation without looking into merits of the case Legality of held; now it must be taken as well settled principle of law that before rejecting application u/S. 5, and dismissing appeals as time-barred, Courts of law required to put a glance as a condition precedent in merits of appeals and unless appeals are found to be hopelessly devoid of merits, ordinarily efforts should be made to decide appeals on merits. (7). The Supreme Court of India in a case Mokham Ram vs. State of Rajasthan (3), has held as under :- ``Limitation Act, 1963 - SECTION 5:- The subject matter was meritorious-Sufficient cause was shown- Held; there should be a liberal approach while considering such matters-Condonation of delay allowed. (8). (7). The Supreme Court of India in a case Mokham Ram vs. State of Rajasthan (3), has held as under :- ``Limitation Act, 1963 - SECTION 5:- The subject matter was meritorious-Sufficient cause was shown- Held; there should be a liberal approach while considering such matters-Condonation of delay allowed. (8). The Board of Revenue in State of Rajasthan vs. Bhim Singh (4), also dealt with question of condonation of delay under Section 5 and after relying the Supreme Court case ( AIR 1998 SC 2276 ) (5), has held that where there is no satisfactory and reasonable explanation of the delay, the delay cannot be condoned by the court. The Rajasthan High Court in a case Prabhu Dayal vs. Shambhu Lal (6), has held that when there was no explanation given for the delay caused after obtaining the copies, therefore, the interference in the revision was declined. (9). The Honble Supreme Court in P. Ramchandran vs. State of Rajasthan (7), has held that in absence of satisfactory or reasonable grounds for condonation of the delay, the delay should be condoned. (10). After going through the pronouncements of Honble Supreme Court, Honble Rajasthan High Court and Board of Revenue on the question of condonation of delay, it has emerged as settled principle that to condone the delay there must be a satisfactory and reasonable explanation of the delay and also the courts are required to put a glance as condition precedent on the merits of the case also when a reasonable explanation for the delay is submitted before the court for condonation of the delay, the approach of the court should be liberal unless the person who is seeking condonation of delay is playing some tactics or the matter is hopelessly time barred. In the present case the delay has been explained, after hearing both the parties on the application of condonation of delay and also in view of the pronouncements stated above, the application for condonation of delay is allowed. The delay caused in filing the review petition is condoned,s and this petition is allowed to be heard on merits. (11). The learned counsel of the petitioner while arguing on the merits of the case has raised almost same grounds in the petition which have been raised and have been decided by the Single Bench of this court while deciding the revision petition. (11). The learned counsel of the petitioner while arguing on the merits of the case has raised almost same grounds in the petition which have been raised and have been decided by the Single Bench of this court while deciding the revision petition. The only new ground asserted by the petitioner in this review petition is that the learned Member of the Board who heard the revision petition, after hearing of the case was complete on 26.10.99, the counsel for the petitioner requested the learned Member of the Board to inspect the disputed site. As per the averment of the learned counsel for the petitioner, the learned Member of the Board directed to decide the date for inspection afterwards but without such inspection by the learned member this revision petition has been decided and dismissed. In support of this contention the learned counsel for the petitioner Shri Y.D. Sharma, has filed his own affidavit. (12). I have considered this argument of the petitioner. Firstly, in the file of the court there is no mention in any of the order-sheets of the proceedings of such request or assurance of inspection of the site. Secondly, provision of law dealing with the review petition nowhere provides this is a ground of review. Any word said during the arguments of the case by the learned Member which is not part of the proceedings can not be a ground for the review of the judgment which has been delivered after hearing both the parties, otherwise also the learned counsel of the petitioner should have moved before the same learned Member to remind him and may request him for this and that Member would have been in the best position to decide the same. (13). In view of the above this argument of the petitioner is not tenable. (14). The learned counsel for the petitioner now wants me to rehear the revision petition on the same grounds which were raised before this court while deciding the revision petition. In this review petition it is not permissible because the scope of review is very limited. (13). In view of the above this argument of the petitioner is not tenable. (14). The learned counsel for the petitioner now wants me to rehear the revision petition on the same grounds which were raised before this court while deciding the revision petition. In this review petition it is not permissible because the scope of review is very limited. Review is permitted only under the circumstances of discovery of new and important matter which after exercise of due diligence was not within the knowledge or could not have been produced at the time when the order was passed or on account of some mistakes or error apparent on the face of the record. (15). Section 86(3) of the Rajasthan Land Revenue Act expressly provides that the application for review shall lie on the grounds mentioned in Order 47 Rule 1 CPC and the provisions of the said order shall be subject to provisions contained in sub section (1) & (2)s of section 86 Rajasthan Land Revenue Act. It is well settled principle that the mistakes or errors on the face of the record must be in the nature which does not require any extraneous matter to show its incorrectness. It should be an error so manifest and clear that no court would permit such an error to remain on the record while hearing the review the court cannot sit over the judgment and hear the case as being heard in the appeal or revision the scope of review has got its limited compass in comparison to the scope available at the time of hearing of appeal or revision. (16). The series of the decisions have crystallized the position that palpable and manifest errors on the face of the record review is permitted. Order 47 Rule 1 CPC provides that the scope of review is very limited and the review of the judgment can be allowed on three grounds. (i) discovery of new and important matters of evidence, i.e., fresh facts which after exercise of due diligence was not within the knowledge of the applicant and could not be produced by him at the time when the decree was passed or the order was made, (ii) some mistake or error apparent on the face of the record. (iii) for any other sufficient reasons, which are analogous to the reasons specified above. (17). (iii) for any other sufficient reasons, which are analogous to the reasons specified above. (17). An error can be said to be apparent on the face of the record only when it may be noticed without going deep in record and trying to find circumstances in which it was given. The court deciding the review petition is also not required to go into correctness or otherwise of the decisions of the lower court to examine the question of exercise of jurisdiction by those courts, therefore, the scope of present applicant for reviewing the order pronounced in the revisional court cannot be wider than that of revision petition. (18). In the present case the petitioner against whom proceeding under Section 90-A and 91 of the Rajasthan Land Revenue Act was initiated and the order of ejectment was passed on 16.4.95 challenged that order before the Collector by way of an appeal which was dismissed on 30.6.98 and against which an appeal was filed before the Revenue Appellate Authority who dismissed the appeal on 27.2.99. Against which revision petition was filed before the Board of Revenue it was dismissed on 4.4.2000 and now counsel for the petitioner wants me to decide and go into the merits of the decisions given against him by way of this review. (19). The disputed land was the power of review should be exercised in the rarest of the rare cases and it should not be used indiscriminately to avoid justice and when there is no error apparent on the face of the record and the material irregularity the review deserves to be rejected. Subsequently happening is also not a ground for review not subsequent change of law or decision of the same of the superior Court upheld such ground. A subsequent admission of the party in the matter of the litigation cannot be ground for review. It is also relevant to mention here that the land in dispute was allotted to the Government Primary School, Karishnapuri, Madanganj-Kishangarh for the play grounds for the student of the School. (20). The Honble Supreme Court in Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhary (8), has clearly held that the error apparent on the face of the record should be such which should strike immediately looking at record and would not require and long drawn process of reasoning on points. (20). The Honble Supreme Court in Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhary (8), has clearly held that the error apparent on the face of the record should be such which should strike immediately looking at record and would not require and long drawn process of reasoning on points. While considering review, the Courts are not supposed to re-appreciate the entire evidence and reverse the findings. In Ajit Kumar Rath vs. Orissa State (9), the Apex Court held that the power is not absolute and is subject to restrictions indicated in Order 47 CPC. A review cannot be claimed or asked for merely for a fresh hearing or correction of an erroneous view taken earlier, i.e., the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed in establishing it. The expression ``Any other sufficient reason used in order 47 Rule 1 CPC means a reason sufficiently analogous to those specified in the rule. Any other attempt not based on any ground set out in order 47, would amount to an abuse of the liberty given to the Court under the Act to review its judgment. Similarly, in Naikantha Dash vs. Dhruba Charan Sahu (10), the Court has held that when there is mistake apparent on the face of record and the Court is convicted, it would be appropriate for the Court to correct the same, but there is a distinction which may not always be capable of exposition between a mere erroneous decision and a decision which could be characterized as vitiated by error apparent. The mistake or error apparent on the face of the record in one which is self evident and does not require a process of reasoning and it is distinct from erroneous decision. Rehearing the matter for detecting an error in the earlier decision and then correcting the same do not fail within the ambit of review jurisdiction. Review jurisdiction cannot be used as appellate, jurisdiction in disguise. (21). Recently, in 2003(1) WLC 499 it was held by the Honble Supreme Court ``Hearing of review petition does not mean giving one more chance or hearing matter already disposed of, High Court in hearing review as if it was re-hearing whole petition over-stepped in its limits. (22). Review jurisdiction cannot be used as appellate, jurisdiction in disguise. (21). Recently, in 2003(1) WLC 499 it was held by the Honble Supreme Court ``Hearing of review petition does not mean giving one more chance or hearing matter already disposed of, High Court in hearing review as if it was re-hearing whole petition over-stepped in its limits. (22). The learned counsel for non-petitioner No.2, Primary School Karishnapuri, Madanganj-Kishangarh and Non-petitioner No.1, State of Rajasthan, have opposed this review petition and have stated that there is no error in the judgment of Single Bench under the required review. (23). As already stated hereinabove, the scope of the review is very limited and keeping in view the aforestated legal position in mind and also after going through the judgment of Single Bench dated 4.4.2000. I do not find that there is any error apparent on the face of the judgment dated 4.4.2000 which requires interference in this review petition. Consequently, the review petition fails and is hereby dismissed. (24). Pronounced in the open Court.