Friends Housing Co-operative Society v. Tulsiram S/o Juharmal Kabra
2005-07-21
N.K.MODY
body2005
DigiLaw.ai
ORDER N.K. Mody, J. 1. Heard on merits. Being aggrieved by the order dated 11-2-2005 passed by 5th ADJ, Ratlam in Misc. Case No. 23-A/2004 whereby the review application filed by the respondent No. 1 was allowed and order dated 18-11-2004 was recalled, the present appeal has been filed. 2. Short facts of the case are that the respondent No. 1 filed a suit for declaration and permanent injunction. The suit was opposed by the appellants on various grounds. It was prayed that the suit is not maintainable. It was also prayed that suit be dismissed. On the basis of pleadings of the parties, learned court below framed the issues. Issue No. 16 was framed as preliminary issue. By order dated 18-11-2004 the preliminary issue was decided in favour of the appellants holding M. A. No. 1350 of 2005 decided on 21-7-2005. (Indore) that the Civil Court is having no jurisdiction. Thereafter, application filed by the respondent No. 1 for recalling of the order under section 151 of the Civil Procedure Code. By the impugned order the application was allowed. 3. Learned Counsel for respondent No. 1 placed reliance on a decision reported in 1988 MPLJ 326 , M.V.G.N.S.S. v. Vasantrao wherein this Court has held that housing society selling plot to a member who in turn sold it too stranger, suit by society against member and purchaser from him for cancelling of sale-deed executed by member, suit not one touching business of society and is tenable in the Civil Court, such a suit is not covered by provisions of section 64 of M. P. Co-operative Societies Act". 4. Learned counsel submits that when this fact was brought to the notice of learned Court below by filing on application for recalling of the order. The learned Court below by the impugned order has recalled the order dated 18-11-2004. 5. Learned counsel for appellant submit that the impugned order deserves to be set aside. It is submitted that the order is dated 18-11-2004 while the application for recalling of the order was moved on 7-2-2005 which is after more than 81 days. It is submitted that under Article 124 of Limitation Act limitation for review of the order is 30 days, it is submitted that on the basis of it the application is barred by limitation under section 5 of the Limitation Act.
It is submitted that under Article 124 of Limitation Act limitation for review of the order is 30 days, it is submitted that on the basis of it the application is barred by limitation under section 5 of the Limitation Act. It is also submitted that court-fee is also payable on the plaint which is required to be paid but in the present case no such type of court-fee is paid on the plaint. This position is disputed by learned counsel for the respondent No. 1. Next contention is that the powers under Order 47, Rule 1 of Civil Procedure Code can be invoked only when there is an error apparent on the face of the record. Reliance is placed on a decision reported in (1997) 8 SCC 715 , Parsion Devi v. Sumitri Devi wherein the Hon'ble Supreme Court has held that "if there is any mistake or error apparent on the face of the record, in that case powers under Order 47, Rule 1 of the Civil Procedure Code can be exercised and error which is not self-evident and has to be defected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 Civil Procedure Code. In exercise of the jurisdiction under Order 47, Rule 1, Civil Procedure Code it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to 'an appeal in disguise.' 6. In view of the above settled position of law, the impugned order cannot be allowed to sustain. Accordingly, appeal is allowed. The impugned order dated 11-2-2005 is hereby set aside. No order as to costs. 7. Learned counsel for the respondent No. 1 submits that he may be permitted to challenge the order dated 18-11-2004 by way of filing the appeal. Prayer is allowed. The respondent No. 1 is permitted to challenge the order, if the appeal is filed then an application for condonation of delay shall also be filed along with appeal and court below shall dispose of the same, in accordance with law.