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2005 DIGILAW 252 (AP)

Ramji Patel v. Irukulla Narender

2005-03-16

P.S.NARAYANA

body2005
P. S. NARAYANA, J. ( 1 ) HEARD Sri Bankatlal mandhani, the Counsel for the review petitioner and Pallavi, Advocate, representing sri K. V. Bhanu Prasad, Counsel for the respondents. ( 2 ) SRI Bankatlal Mandhani, the counsel for the review petitioner had pointed out that the Review C. M. P. No. 567 of 2005 had been moved before this Court after the withdrawal of the Special Leave Petition (Civil) No. 23778 of 2004 before the Apex court, and hence, the review petition is perfectly maintainable. The learned Counsel for review petitioner while further elaborating his submissions, had drawn the attention of this Court to Section 114 of C. P. C. and order LXVII Rule 1 of C. P. C. and would contend that it is a case where both the trial Court as well as the Appellate Court had failed to consider several important points inclusive of question of jurisdiction. The Counsel would contend that the petitioners are the tenants. The landlord and tenant relationship and the quantum of rent are not in dispute. It is needless to say that the Rent Controller alone will have jurisdiction and hence, the dispute cannot be adjudicated by a Civil Court. Strong reliance was placed on B. Narasing Rao v. Parvathi Bai, 1977 ALT 627 and M/s. East India Corporation Ltd. , v. Shree meenakshi Mills Ltd. , AIR 1991 SC 1094 . The learned Counsel also while further elaborating the submissions, had taken this court through the portion of the judgment of the Trial Court as well as the judgment of appellate Court and would point out several omissions inclusive of non-consideration of aspect of mesne profits. The learned counsel pointed out that this Court, without specifically framing any point for consideration as to the mesne profits, recorded findings. Hence, this being a mistake on the part of the Court, the same can be rectified by exercising the review jurisdiction. The learned Counsel further placed strong reliance on Board of Control for Cricket, india and another v. Netaji Cricket Club and others, 2005 (1) DT (SC) 35, to substantiate his stand taken in this regard. The learned Counsel also contends that the question of equity under Section 22 of the specific RELIEF ACT, 1963, 1963 also to be considered and this aspect had not been properly considered by this Court. The learned Counsel also contends that the question of equity under Section 22 of the specific RELIEF ACT, 1963, 1963 also to be considered and this aspect had not been properly considered by this Court. ( 3 ) PER contra, Smt Pallavi, Advocate, representing the learned Counsel for the respondents would contend that this is a long drawn litigation and in fact, the Trial court had recorded detailed findings on all the aspects. That apart, the matter had been carried to the Apex Court by way of special leave. After the matter had been moved before the Apex Court for the reasons best known to him, the review petitioner had chosen to withdraw the special Leave Petition before the Apex court and having withdrawn the same, again the present review application had been filed. The learned Counsel also would further maintain that apart from the review C. M. P. No. 567 of 2004, C. M. P. No. 568 of 2005 praying for the relief of stay also had been moved. In view of the pendency of said application, the matter is being adjourned from time to time before the Court at first instance. The learned counsel also would contend that this attempt is yet another to procrastinate the proceedings and absolutely there are no bona fides on the part of the review petitioner. The learned Counsel further contends that even otherwise none of the ingredients as specified under Order LXVII rule 1 C. P. C. are satisfied in the present case, and, there is no error apparent on the face of the record. The Counsel would contend that virtually elaborate submissions now made before this Court may amount to rehearing of the appeal, and the same is impermissible while exercising the review jurisdiction. ( 4 ) HEARD both the Counsel and perused the material available on record. ( 5 ) THE principles relating to the exercise of review jurisdiction under Section 114, and under Order LXVII Rule 1 C. P. C. being well settled the same need not be emphasized again. However, inasmuch as reliance was placed on the decision of the apex Court by the learned Counsel representing the petitioners in Board of control for Cricket, India and another v. Netaji Cricket Club and others (supra), it may be appropriate to deal with this aspect. However, inasmuch as reliance was placed on the decision of the apex Court by the learned Counsel representing the petitioners in Board of control for Cricket, India and another v. Netaji Cricket Club and others (supra), it may be appropriate to deal with this aspect. In the said decision, the Apex Court at paragraphs 89 to 91 held: "order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "a sufficient reason" on Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit . It is true that in Moron Mar Basselios catholicos and another v. The Most Rev, Mar poulose Athanasius and others, (1955) 1 SCR 520 , this Court made observations as regard limitations in the application of review of its order stating: "before going into the merits of the case, it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasize that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of civil Procedure which is similar in terms to Order XLVII Rule 1 of our Code of civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. Under the provisions in the Travancore Code of civil Procedure which is similar in terms to Order XLVII Rule 1 of our Code of civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicants knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on che face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule". but the said rule is not universal. Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms:"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 , held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue, which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. . . . "here is a case, where initially an attempt was made to move the Apex Court by filing special leave petition, and the same was withdrawn. . . . "here is a case, where initially an attempt was made to move the Apex Court by filing special leave petition, and the same was withdrawn. Suffice to state that the special leave to Appeal (Civil) No. 23778 of 2004 had been thrown out by the Apex Court by virtue of the withdrawal and the said order reads as hereunder:"learned Senior Counsel appearing for the petitioners applies for withdrawal of the special Leave Petition. The Special Leave petition is allowed to be withdrawn. " ( 6 ) SPECIFIC stand was taken in the review application before this Court that the same is moved after withdrawal of the special leave petition before the Apex Court. In Secretary of State v. Hindusthan Co-operative Insurance Society Limited, AIR 1932 Cal. 171, it was held:"the scheme of the order relating to review in the Code of Civil Procedure is that in those cases in which an appeal lies the application for review should be filed before the appeal is lodged. "reliance also was placed in this regard on ratanchand Khimchan and others v. Damji Dharsey and others, AIR 1927 bom. 232. ( 7 ) IT is no doubt true that the stand taken by the learned Counsel representing the review petitioner is that inasmuch as the special leave petition was withdrawn, it will not amount to dismissal of the appeal before the Apex Court, so as to bar the maintainability of the review application before this Court. ( 8 ) FURTHER reliance was also placed on Kunhayammed and others v. State of kerala and another, 2000 (6) SCC 359 , wherein the jurisdiction of Supreme Court under Article 136 of the Constitution had been considered and the nature and scope thereof had been explained in detail. In M/s. Thungabhadra Industries ltd. v. The Government of Andhra pradesh represented by the Deputy commissioner of Commercial Taxes, anantapur, AIR 1964 SC 1372 , while dealing with similar question, the Apex Court observed at Paras 7, 8 and 9. We shall next proceed to deal with the merits of the appeals. Before doing so, however, it is necessary to advert to a circumstance which the learned Judges considered a proper reason for rejecting the petition for review. This arises out of the second of the grounds assigned by the learned Judges in their order dated January 6,1961 refusing to grant the review. Before doing so, however, it is necessary to advert to a circumstance which the learned Judges considered a proper reason for rejecting the petition for review. This arises out of the second of the grounds assigned by the learned Judges in their order dated January 6,1961 refusing to grant the review. This may be quoted in their own words:"that apart, the Supreme Court was moved under Article 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not filed in rime. "the facts in relation to this matter might now be stated. As already seen, the applications for reviewing the order dated september 4, 1959 refusing the certificate were filed on November 23, 1959. During the pendency of those review applications the appellant filed on November 30, 1959, petitions seeking special leave of this Court under Article 136 of the Constitution but those petitions were filed beyond the period of limitation prescribed by the Rules. An application was therefore filed along with the special leave petitions seeking condonation of delay in the filing of the petitions. The petitions and the applications for condonation of delay came on together for hearing and this Court refused to condone the delay, so that the petitions for special leave never legally came on the file of this Court. Order XLVII Rule 1 (1) of the Civil procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred. " In the present case, it would be seen, on the date when the application for review was filed the appellant has not filed an appeal to this Court and therefore the terms of order XLVH Rule 1 (1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the high Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of Order XLVII Rule 1 (1) are satisfied is the date when the application for review is filed. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the high Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of Order XLVII Rule 1 (1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end. The next question is as regards the effect of the refusal of this Court to condone the delay in filing the petition for special leave. Here again, it was not contended that the refusal of this Court to entertain the petition for special leave on the grounds just now stated was a bar to the jurisdiction or powers of the Court hearing the review petition. This position was not contested by the learned advocate for the respondent either. In these circumstances, we are unable to agree with the learned Judges of the High court that the refusal by this Court to condone the delay in filing the petition for special leave was a circumstance which could either bar the jurisdiction of the high Court to decide the petition for review or even could be a relevant matter to be taken into account in deciding it. If therefore their original order dated september 4, 1959 was vitiated by an error apparent on the fact of the record, the failure of the special leave petition to be entertained in this Court in the circumstances in which it occurred, could not be any ground either of itself or taken along with others to reject the application for review. ( 9 ) IN the light of the decision of the apex Court especially in the light of the withdrawal of the special leave petition before the Apex Court by the petitioners, it cannot be said that the review application is not maintainable. ( 10 ) NOW coming to the merits of the present case, two grounds had been urged and elaborate submissions had been made relating thereto. ( 10 ) NOW coming to the merits of the present case, two grounds had been urged and elaborate submissions had been made relating thereto. In the light of the scope and limits of exercising the review jurisdiction, virtually rehearing of an appeal is impermissible. In fact, an attempt was made on the part of the Counsel for the petitioners to make elaborate submissions virtually touching the merits and demerits, which had been decided already while disposing of the appeal. It is also pertinent to note that certain omissions pointed out in the trial Court judgment cannot be gone into at this stage, and it is needless to say that an appeal is a continuation of the suit and on the strength of the findings recorded by the Court of the first instance, an appeal had been decided and the relevant points for consideration had been framed and appropriate findings had been recorded in this regard. Strong reliance was placed on decisions reported in B. Narasing Rao v. Parvathi Bai (supra) and M/s. East India corporation Ltd. v. Shree Meenakshi mills Ltd. (supra ). ( 11 ) THE question of bar of jurisdiction or the question of non-consideration of the aspect of mesne profits in relation thereto and also the question of working out equities in relation to Section 22 of the specific RELIEF ACT, 1963, 1963, are all the matters touching the merits and demerits of the case and definitely this cannot be an error apparent on the face of the record. Review of judgments may be allowed on three grounds: (i) discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order was made. (ii) some mistake or error apparent on the fact of the records, (iii) for any other sufficient reason (which has been interpreted to be analogous to the other reasons specified above ). But the Courts repeatedly held that sufficient reason in the application of Order 47 Rule 1 cpc, may have to be understood, reasons just akin to referred to supra. ( 12 ) IN the light of the specific legal position, this Court is thoroughly satisfied that the review application definitely is lack of bona fides and accordingly the same shall stand dismissed. ( 12 ) IN the light of the specific legal position, this Court is thoroughly satisfied that the review application definitely is lack of bona fides and accordingly the same shall stand dismissed. It is needless to say that the application C. M. P. No. 568 of 2005 also is devoid of merits and accordingly the same shall stand dismissed. Both the applications are hereby dismissed. No order as to costs.