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2007 DIGILAW 1637 (PAT)

Naesh Kahar v. Satya Narayan Prasad

2007-10-05

RAMESH KUMAR DATTA

body2007
Judgment 1. The interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay in filing the civil review application. It is pointed out that the same has been filed after a delay of nearly three years from the judgment passed on 4.9.2001 in Second Appeal No. 335 of 1987. The explanation for the same as given by the petitioners is that the judgment had been passed behind the back of the petitioners as they had not been given notice of the appeal and they learnt about the judgment and decree having been passed in the second appeal only after they received notice by the Executing Court under Order 21, Rule 22 of the Code of Civil Procedure in the first week of September, 2004 to show cause as to why they should not be dispossessed from the land in question. Thereafter, they made inspection of the High Court records and the review application has been filed. 2. Learned counsel for the opposite party opposes the said contention stating that the petitioners had knowledge of the judgment and decree in the appeal. However, no counter affidavit has been filed to the interlocutory application assailing the facts stated in the interlocutory application. 3. On a consideration of the facts and circumstances, the Court finds that the petitioners have been able to show sufficient grounds for condoning the delay in filing the review application. The interlocutory application is accordingly allowed and the delay in filing Civil Review No. 149/2004 is condoned. 4. Heard learned counsel for the parties. 5. Title Suit No. 42 of 1982/83 of 1983 was filed by the plaintiff-opposite party for permanent injunction in the mandatory or prohibitory form directing the defendant-petitioners to remove the structure and houses standing over the land described in schedule II of the plaint and also for restraining them from erecting any new construction or change the physical feature of the suit land and further not to disturb the possession of the plaintiff-opposite party in any manner. The defendant-petitioners appeared in the suit and after filing of the written statement they contested the same. Ultimately the suit was dismissed by the Additional Munsif, Aurangabad on 23.2.1984, against which the opposite party filed Title Appeal No. 20/84 and by judgment and decree dated 20.7.1987 passed by the District Judge, Aurangabad, the judgment and decree of the Court below was affirmed. Ultimately the suit was dismissed by the Additional Munsif, Aurangabad on 23.2.1984, against which the opposite party filed Title Appeal No. 20/84 and by judgment and decree dated 20.7.1987 passed by the District Judge, Aurangabad, the judgment and decree of the Court below was affirmed. Thereafter, the second appeal No. 355/ 1987 was filed in this Court which was allowed by judgment and decree dated 4.9.2001. 6. Learned counsel for the petitioners submits that the judgment and decree had been passed without any notice being served upon any of the respondents including these petitioners and thus the same deserves to be reviewed. It is stated that notices were sent by registered post with A.D. but no such acknowledgment or receipt nor any registered envelopes indicating refusal of the respondents were received. In the said circumstances, it is submitted by the learned counsel that the notices could not be said to have been validly served upon them and the second appeal ought not to have been heard ex parte against them. It is secondly submitted by the learned counsel that during the pendency of the second appeal as many as four respondents, namely, respondent nos. 1, 2, 4 and 6 had died respectively on 10.4.1996, 9.6.1995, 13.9.1996 and 17.6.2000; however, neither the substitution petition was filed with respect to them nor they were substituted and the matter was taken up and judgment and decree was passed against dead persons and for the said reasons also the same needs to be reviewed. 7. The 3rd contention of learned counsel is that substantial question of law formulated in the present matter was to the effect "whether Sections 34 and 38 of the Specific Relief Act apply to the facts of the case and whether the suit is maintainable." It is submitted that the second appeal has been decided not only on those substantial questions but also on other questions of law which is not permissible. 8. Lastly it is submitted by learned counsel for the petitioners that the second appeal stood dismissed for default on account of non-appearance of the appellant-opposite party on 20.11.1995 and thereafter it has been restored but no notice has been issued to the respondent-petitioners before restoring the same and for the said reason also the judgment and decree is vitiated. 9. Lastly it is submitted by learned counsel for the petitioners that the second appeal stood dismissed for default on account of non-appearance of the appellant-opposite party on 20.11.1995 and thereafter it has been restored but no notice has been issued to the respondent-petitioners before restoring the same and for the said reason also the judgment and decree is vitiated. 9. Learned counsel for the opposite party, on the other hand, submits that the notice have been validly served upon the respondent-petitioners in the case in terms of proviso to Sub-Rule (2) of Rule 19A of Order V of the Code of Civil Procedure as it then existed. It is submitted that in terms of the said proviso this Court had considered the notices as validly served upon the respondent-petitioners and thus it cannot be said that no notice under the law has been served upon the respondent--petitioners. It is further submitted by the learned counsel that, as a matter of fact, no petition for review can lie on such a ground since in the said situation specific provision has been made in the Code of Civil Procedure under Order 41, Rule 21 CPC for re-hearing on application of respondent-petitioners against whom the ex-parte decree is made. Thus, it is submitted that the same is not a proper ground for review of the judgment and decree passed in the second appeal. 10. With respect to the issue of death of four of the respondents during the pendency of the second appeal, learned counsel refers to paragraph nos. 7, 8 and 9 of the counter affidavit in which the factum of death having taken place during the pendency of the second appeal has been denied and it is stated that in order to buttress the case, municipal records of Aurangabad Municipality have been forged by the petitioners and no credence can be given to such certificate. It is stated by learned counsel that substitution petition with respect to death of respondent nos. 1 to 6 and 10 has been filed subsequently in the executing court in Execution Case No. 3/2004 which was not opposed by the petitioners and the same was duly allowed. 11. It is stated by learned counsel that substitution petition with respect to death of respondent nos. 1 to 6 and 10 has been filed subsequently in the executing court in Execution Case No. 3/2004 which was not opposed by the petitioners and the same was duly allowed. 11. Regarding the contention that the second appeal has been decided also on the other question apart from questions of law framed, learned counsel for the opposite party refers to proviso to sub-section (5) of Section 100 CPC which clearly provides that nothing in sub-section (5) shall be deemed to take away or abridge the power of the Court to hear the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. It is submitted on the basis of the said proviso that it was open to this Court while deciding the second appeal to have also considered the question of law regarding the applicability of the provisions of Bihar Privileged Persons Homestead Tenancy Act which the Court had done while discussing the substantial question of law already formulated. 12. Regarding the issue of second appeal having been restored after dismissal for default, without notice to the respondents, it is contended that the same cannot be a ground for review. 13. Learned Counsel for the opposite party submits that a review can only be granted on limited grounds mentioned in Order 47, Rule 1 of the Code of Civil Procedure and on no other grounds. It is submitted that those grounds are either the discovery of new or 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 order was made or on account of some mistake or error apparent on the face of the record and not on any other ground. It is further contended that in the present matter no such new and important matter or evidence has been produced by the petitioners which was not already within the knowledge at the time when the order was passed nor the petitioners have succeeded in showing any material error apparent on the face of the record. It is further contended that in the present matter no such new and important matter or evidence has been produced by the petitioners which was not already within the knowledge at the time when the order was passed nor the petitioners have succeeded in showing any material error apparent on the face of the record. In support of the said proposition learned counsel refers to a decision of the Supreme Court in the case of Ajit Kumar Rath vs. State of Orissa and Ors. AIR 2000 Supreme Court 85, in paras 30 and 31 of which the said propositions have been laid down in the following terms: "30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as had been given to a Court under Section 114 read with O. 47, C.P.C. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, 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 for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47, Rule 1 means a reason sufficiently analogous to those specified in the rule. 31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment." 14. 31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment." 14. In reply learned counsel for the petitioners submits that the application of Order 41, Rule 21 can arise only if the petitioners had appeared in the case and thereafter on account of their non-appearance the matter is heard ex-parte. Learned counsel for the petitioners also seeks to rely upon a decision of the Supreme Court in the case of M.M.Thomas vs. State of Kerala and Anr. (2000)1 Supreme Court Cases 666, in para 14 of which it has been held as follows: "The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Courts power in that regard is plenary. In Naresh Shridhar Mirajkar vs. State of Maharashtra: AIR 1967 SC 1 : (1996)3 SCR 774, a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record." 15. On a consideration of the rival contentions this Court does not find that the petitioners have succeeded in making out any grounds which are germane to the grant of review by this Court. So far as the issue of non-service of notice is concerned, it was open to the petitioners to have resorted to the specific provisions of Order 41, Rule 21 of the Code of Civil Procedure under which they could have applied to this Court for rehearing of the appeal. The same can never be a ground for filing the review application. 16. The same can never be a ground for filing the review application. 16. Regarding the death of four respondents during the pendency of the appeal, the same is an issue of fact which has been traversed by the opposite party in his counter affidavit and it cannot be considered in review jurisdiction for deciding the correctness etc. of the said facts. In any case the same is not a good ground in review jurisdiction although it may be raised in other forums as may be available to the petitioners. Similarly on a consideration of the judgment and decree dated 4.9.2001 this Court finds that this court has proceeded on the basis of two substantial questions of law formulated therein, the one relating to the applicability of the provisions of Sections 34 and 38 of the Specific Relief Act and the other on the question of maintainability that the provisions of the Bihar Privileged Persons Homestead Tenancy Act has been discussed by this Court and it does not appear to be an error apparent on the face of the record. 17. Similarly, the restoration of the second appeal dismissed for default on 20.11.1995 without notice to the respondent-petitioners is not a ground for review of the judgment and decree. 18. Thus, in view of the aforesaid discussions there does not appear to be any merit in the review application and it is accordingly dismissed. However, the dismissal of this application would not stand in the way of the petitioners availing of any other remedy available to them under the law.