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2005 DIGILAW 1714 (RAJ)

Sarjeet v. Headmaster, Govt. School, Kaysa

2005-07-05

A.K.PUROHIT, B.K.MEENA

body2005
MEENA, MEMBER–This review petition has been filed by the applicant under section 229 of the Rajashtan Tenancy Act, 1955 (in short `the Act) for reviewing the judgment passed by Division Bench of this Court on 16.2.1994 allowing the second appeal No. 85/85/TA/Decree/Alwar of the State Government and setting aside the judgments & decrees passed by the Trial Court on 28.4.77 and that of the Revenue Appellate Authority, Alwar dated 1.2.85. (2). The brief facts of the case are that Phusal s/o Mangal Aheer, the father of present applicants as a plaintiff filed a suit under Section 88 & 188 of the Act against the Headmaster of School, Kaysa & Others in the court of S.D.O., Behore regarding khasra No. 655 (old) measuring 21 bighas 12 biswas situated in village Kaysa, tehsil Behror. The Trial Court after hearing both the parties, decreed the suit vide its judgment dated 28.4.77 against which the present non-applicant-defendants filed an appeal in the court of Revenue Appellate Authority, Alwar which was rejected vide judgment & decree dated 1.2.85. The present non-applicants submitted second appeal against the judgment of R.A.A. before the Board of Revenue and the Board vide its judgment dated 16.2.94 accepted the second appeal and the judgment & decree passed by the Trial Court dated 28.4.77 and the R.A.A., Alwar dated 1.2.85 were set aside. This judgment dated 16.2.94 was passed by the then Members Shri T. Srinivasan and Shri B.B. Mohanty. Since these two Members have been transferred from the Board of Revenue, hence the review application filed by the applicants against the judgment dated 16.2.94 is listed before us for hearing. (3). The learned counsel for the applicants has urged that the judgment of the Board dated 16.2.94 was passed on the basis of erroneous assumption of material facts and misconception of law; therefore, the judgment be reviewed. In this connection, he has submitted that while deciding the question of notice before filing the suit u/s 80 CPC, the Board has wrongly decided this point against the applicant in para No. 10 of the judgment dated 16.2.94. In this connection, he has submitted that while deciding the question of notice before filing the suit u/s 80 CPC, the Board has wrongly decided this point against the applicant in para No. 10 of the judgment dated 16.2.94. Similarly, he has further argued that the land in question was in khudkasht possession of the plaintiff which was wrongly recorded as `Makbuja Sarkar and subsequently, it was again recorded in the name of plaintiff and the Settlement Department has not changed the entries in favour of the plaintiff, but the Board has erroneously assumed that the Settlement Deptt. has changed the entries. The counsel for the applicants has further argued that the finding of the Board on the question of staying the suit filed by the State Govt. and not clubbing the two suits in deciding it together, is also erroneous. It has further been argued that the allotment of the suit land which was made in favour of the School by the District Collector was subsequently cancelled, therefore, the Headmaster of the School was having no right to file the second appeal before the Board. Lastly, the counsel for the appellants has argued that by operation of Sections 29 & 30 of the Zamindari & Biswedari Abolition Act, the land in question becomes khudkasht land of the applicants father, therefore, judgments of both the lower courts were legal and have wrongly been set aside by the Board in the judgment dated 16.2.94. (4). The Government Advocate submitted that the applicants counsel has argued this review petition as if he is arguing the main appeal. He has submitted that the applicants cannot be allowed the second inning in arguing the appeal in the form of review petition. He has submitted that all the points and the arguments raised by the applicants in this review application had been advanced in the appeal because the judgment of the appeal makes it clear that all these points have been considered and consciously decided by the Board in accordance with the rule of law while deciding the appeal. He has further argued that the applicants before filing the suit gave a notice u/s 80 CPC to the defendant but without waiting for two months which is a statutory requirement, he filed suit prior to completion of two months notice. He has also argued that the entries in the Jamabandi of Svt. He has further argued that the applicants before filing the suit gave a notice u/s 80 CPC to the defendant but without waiting for two months which is a statutory requirement, he filed suit prior to completion of two months notice. He has also argued that the entries in the Jamabandi of Svt. 2015-18 of the suit land is recorded as `Makbuja Sarkar, therefore, the entries in Svt. 2020 in the name of present applicants were not at all lawful because no competent authority passed any order to change such entries. He has further argued that the present suit was filed by the plaintiff-applicants before the Trial Court and at the same time, an application u/s 136 was filed by the State Govt. and the Trial Court exercising the powers u/s 10 CPC stayed the proceedings of the application filed by the State Govt. but the Trial Court while deciding the suit of plaintiff-applicants has not cared to club both the proceedings and no order/decision was given on the application/suit filed by the State. He has further argued that the cancellation of the allotment of land allotted to School does not affect the merits of the case because the consequence of such cancellation does not give any right or title over the land to the applicants, but in such events the land vests in the hands of State Govt. He was further submitted that no khatedari rights accrue to the present applicants by operation of Section 29 & 30 of the Zamindari & Biswedari Abolition Act because it was not proved by the applicants that at the time of abolition of Zamindari & Biswedari Act, the present applicants were in possession/occupation of the disputed land. (5). We have heard the arguments of both the parties and perused the judgment of the Board of Revenue dated 16.2.94 in the light of the arguments made hereinabove. In para No. 10 of the judgment, the Board has considered the aspect of notice given u/s 80 CPC. It is not in dispute that the present suit was filed in the year 1973, hence, it was filed before the amendment in CPC in 1976. Therefore, the Board of Revenue in its judgment has held that it was incumbent upon the plaintiff to have waited for two months period after giving notice u/s 80 CPC to the defendant and then filed the suit. Therefore, the Board of Revenue in its judgment has held that it was incumbent upon the plaintiff to have waited for two months period after giving notice u/s 80 CPC to the defendant and then filed the suit. In this connection in para No. 10 of the judgment, the L.B. judgment of the Board reported in 1974 RRD page 271 has been referred. The counsel for the applicants has placed much emphasis on the ruling reported in AIR 1963 Kerala 114 and has tried to emphasise that even a suit which has been filed prior to expiry of the period of the notice, cannot be dismissed on the ground that it has been filed prior to the expiry of the said period. He has urged that the Board of Revenue has not considered this ruling of the Kerala High Court in deciding the appeal. Firstly, in not referring the ruling of the case in deciding the appeal cannot be a ground of review. Secondly, we have gone through the case law AIR 1963 Kerala 114 (supra). In that case, it has been held that when a suit is filed prior to the expiry of the period, the suit be treated to be premature and deserves to be dismissed in limine, but it it has not been so dismissed and the Govt. or a public officer does not show to have prejudice by the premature institution of the suit, it need not necessary to be dismissed long after the expiry of the pre-maturity. That happens only when the defendant does not make any objection regarding the notice, but in the present case, it is not the case of the applicants that in the written statement, objection regarding the notice was not raised. In number of cases, it has been held that the requirement to fulfill the conditions mentioned in Section 80 is mandatory unless it is waived. The effect of Section 80 is clearly to impose a bar against the institution of suit against the Govt. or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after the notice in writing has been delivered to or left at the office of Secretary to the Govt. or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after the notice in writing has been delivered to or left at the office of Secretary to the Govt. or Collector of the concerned district and in case of public officer, delivered to him or left at his office, staying the particulars enumerated in the last para of sub-section (1) of the Section. The Section has been enacted as a measure of public policy to ensure that before a suit is instituted against the Govt. or a public officer, the Govt. or the officer concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed and if it be found to be just, claim to take immediate action and thereby avoid unnecessary litigations and save public time & money by setting claim without driving the person, who is issued the notice, to institute a suit involving considerable expenditure and delay. The Govt., unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit and take a decision in public interest within a period of two months allowed by the Section as to whether the claim is just & reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by finding out the suit, if & when it is instituted. There is a clear public purpose underlying the mandatory provisions contained in the Section insisting on the issuance of a notice setting out the particulars of proposed suit and giving two months time to Govt. or a public officer before a suit can be instituted against them. The object of suit is advancement of justice and securing the public good by avoidance of unnecessary litigations. When the language used in the statute is clear and unambiguous, it is the plain duty of the court to give effect to it and consideration of hardship will not be a legitimate ground for not faithfully implementing the mandate of the court. The above observations were made by the Honble Supreme Court in AIR 1984 SC page 1043 in `Bihari Chaudhary vs. State of Bihar. The above observations were made by the Honble Supreme Court in AIR 1984 SC page 1043 in `Bihari Chaudhary vs. State of Bihar. In this judgment of the Honble Supreme Court, the ruling cited by the present applicants in AIR 1963 Kerala page 114 (supra), was overruled. We may mention here that the counsel for the applicants while arguing this review petition for about two hours has emphasized again & again ruling given in AIR 1963 Kerala 114 (supra), which has been overruled by the Honble Supreme Court in AIR 1984 SC page 1043 (supra). In view of the judgment of the Supreme Court mentioned hereinabove, this argument regarding the notice u/s 80 CPC advanced by the applicants has no force. (6). The second argument of the applicants is that the Settlement Department has not changed any entries and in para No. 11 of the judgment of the Board dated 16.2.94, the Board has wrongly assumed that the entries were changed by the Settlement Deptt. In this connection, it is not disputed that in Ex. A-3 Jamabandi of Svt. 2015-18, the suit land has been recorded as `Makbuja Sarkar. It is also not disputed that the same disputed land has been entered in Svt 2020 in the name of present applicants. There is nothing on record to show that any competent authority has passed an order changing the entries of the land as `Makbuja Sarkar, therefore, the entries made in Svt. 2020 are without any competent authority and the Board of Revenue has rightly held in para No. 11 of its judgment that this change of entries in Svt. 2020 was bad in the eyes of law. The finding of the Board of Revenue in para No. 11 in view of the record is not on wrong assumption of facts as argued by the applicants. The case laws AIR 1964 SC 677, 1949 FC 112 cited by the counsel for the applicants are not applicable in the present case. The counsel for the applicants has argued that prior to Svt. 2015-18, the entries were in the name of applicants whereas the record shows that in Svt. 2014 vide Ex.-2, the entries in the name of applicant were made by the Settlement Deptt. in the Settlement Parcha and on that basis in Svt. 2020, the khatedari of the applicant was entered. Such entries are certainly without authority of the law. (7). 2015-18, the entries were in the name of applicants whereas the record shows that in Svt. 2014 vide Ex.-2, the entries in the name of applicant were made by the Settlement Deptt. in the Settlement Parcha and on that basis in Svt. 2020, the khatedari of the applicant was entered. Such entries are certainly without authority of the law. (7). It is also not disputed that before Trial Court the suit was filed by the plaintiff-applicant and another suit/application was submitted by the State Govt. The Trial Court stayed the suit/application of the State and till today the same is not decided whereas it was incumbent on the Trial Court to club both the proceedings and to decide both the cases together. There is nothing wrong in the decision of the Board of Revenue in para No. 12 of the judgment. (8). So far as the cancellation of allotment of the suit land made in favour of the school by the District Collector in the year 1967 is concerned, the Board of Revenue while deciding the appeal in para No. 13 has categorically held that such cancellation does not entitle and vest the land in the hands of the applicants, but it would have been vested in Govt., therefore, this argument had already been turned down by the Board of Revenue in para No. 13 of the judgment. So far as the claim of the applicants on the basis of sections 29 & 30 of the Zamindari & Biswedari Abolition Act is concerned, in the judgment in para No. 14, this point had been considered and this argument had been turned down by the court. After perusing the record, we are of the opinion that the applicant has not been able to prove that at the time of the operation of Sections 29 & 30 of the Zamindari & Biswedari Abolition Act, the applicant was entitled to be declared as khatedar because the land in question was not khudkasht land of the applicants father. (9). Although all the above arguments had been dealt with by the Board of Revenue in its judgment dt. 16.2.94 the learned counsel for the applicants has again reiterated all the arguments in review. The law regarding the review petition is very clear. The scope of review is very limited. (9). Although all the above arguments had been dealt with by the Board of Revenue in its judgment dt. 16.2.94 the learned counsel for the applicants has again reiterated all the arguments in review. The law regarding the review petition is very clear. 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. (10). Section 86(3) of the Rajasthan Land Revenue Act, 1956 as well as Section 229 of the Act provide that the application for review shall lie on the ground mentioned under Order 47 CPC and the provisions of the said order shall be subject to provisions contained in sub-section (1) and (2) of Section 86 of the Rajasthan Land Revenue Act. It is well settled principle that the mistakes or error 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. (11). The series of the decisions have crystallized the position that on the basis of 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 the 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. (12). (12). 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 application for reviewing the order pronounced in the appellate court cannot be wider than that of appeal. (13). The power of review should be exercised in the rarest of the rare cases and it should not be used indiscriminately. When there is no error apparent on the face of the record and the material irregularity the review deserves to be rejected. Subsequent happening is also not a ground for review nor subsequent change of law or decision of the same of the superior court uphold such ground. A subsequent admission of the party in the matter of the litigation cannot be ground for review. (14). The Honble Supreme Court in Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhary, AIR 1995 SC 455 has clearly held that the error apparent on the face of the record should be such which should strike immediately looking at the record and would not require any 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, AIR 2000 SC 85 , 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. 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 Nilkanthan Dash vs. Dhruba Charan Sahu, AIR 1999 Orissa 106, the court has held that when there is a mistake apparent on the face of the record and the court is convinced, 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 characterised as vitiated by error apparent. The mistake or error apparent on the face of the record is one, which is self-evident and does not require a process of reasoning and it is distinct from erroneous decision. Rehearing the matter of detecting an error in the earlier decision and then correcting the same do not fall within the ambit or review jurisdiction. Review jurisdiction cannot be used as appellate jurisdiction in disguise. (15). Honble Supreme Court recently in State of Haryana vs. Mohinder Singh reported in 2003 (1) WLC (SC) page 499 considered the scope of review under Order 47 Rule 1 CPC, which is reproduced hereunder : ``Civil Procedure Code, O. 47, R.1-Scope-Hearing of Review does not mean giving one more chance for rehearing matter already disposed of High Court in hearing Review as if it was rehearing whole petition overstepped its limits-Order of High Court set aside and original order restored. (16). The Honble Supreme Court in RRT 2005(1) page 545 has held as under:– ``Code of Civil Procedure, 1908–Order 47 Rule 1–Review-Point that has been held and decided–View taken in the judgment may be erroneous but cannot be a ground for review. The Honble Supreme Court in AIR 2005 page 592 has held that on account of misconception of law or fact by the Court or advocate and mistake by a court in nature of undertaking given can be a ground for review; but in the present case, there is no misconception of law or fact by the court while deciding the appeal nor there is any mistake of court regarding the nature of undertaking given. The applicants have also not shown any subsequent events to be considered in the review; therefore, this authority of Honble Supreme Court is not applicable in the facts & circumstances of the present case. (17). As already stated hereinabove, the scope of review is very limited and keeping in view the various legal position in question and after going through the judgment of the Board of Revenue dated 16.2.94, we do not find that there is any error apparent on the face of the record which requires interference in this review petition. Consequently, the review petition is failed and hereby dismissed. Pronounced in open court.