Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 2612 (ALL)

VIDHYAWATI SINGH (SINCE DECEASED) v. AASHA SINGH

2007-10-12

PRAKASH KRISHNA

body2007
JUDGMENT Hon’ble Prakash Krishna, J.—The dispute relates to a shop in House No. S9/475-4-A situate in Mohalla Nai Basti Pandeypur District Varanasi of which the contesting respondents are the landlords and the petitioner is the tenant on monthly rent of Rs. 800/-. 2. SCC Suit No. 19 of 2001 giving rise to present writ petition was instituted by the respondents herein against the petitioner for recovery of arrears of rent amounting to Rs. 25,000/- for the period 1.10.1998 to 14.5.1998 damages from 15.5.2001 to 2.7.2001 amounting to Rs. 1254/- and pendente lite @ Rs. 800/- per month and ejectment of the present petitioner. 3. It was pleaded that Ashok Kumar Singh the predecessor-in-interest of the plaintiff landlords was the owner of the shop in question who let it out to the defendant petitioner with effect from 26.10.1991 under a rent note and Ashok Kumar Singh on having expired the plaintiffs succeeded to the property. The defendant is in arrears since 1.10.1998, 31.3.2001 and he has failed to pay the rent inspite of notice of demand and ejectment dated 5.8.2000. The tenancy was terminated by the registered notice dated 10.4.2001 served on 14.4.2001 as the provisions of U.P. Act No. 13 of 1972 are not applicable as the building in question is a new construction within the meaning of the said Act. 4. In the written statement the landlord has not denied the rate of rent. However, it was pleaded that Late Ashok Kumar Singh had taken a sum of Rs. 25,000/- as advance, who used to record the receipt of the rent in a copy maintained by him and after adjusting the said amount of Rs. 25,000/-, the defendant tenant is not a defaulter. The rent for the month of July 2000 was sent by Money Order which was not accepted by the landlord. 5. The parties led evidence in support of their respective cases and the following issues were framed by the Trial Judge : (1) Whether the defendant is a defaulter? (2) Whether the house in question is a new construction and the provision of U.P. Act No. 13 of 1972 are not applicable. (3) Relief, if any, to which the plaintiffs may be found entitled? 6. (2) Whether the house in question is a new construction and the provision of U.P. Act No. 13 of 1972 are not applicable. (3) Relief, if any, to which the plaintiffs may be found entitled? 6. The Trial Judge vide judgment and decree dated 31.3.2003 dismissed the suit on the finding that there was no default as the defendant has deposited the rent in case No. 19 of 2001 through tenders and admittedly Ashok Kumar Singh had taken a sum of Rs. 25,000/- as advance and no argument was advanced by the parties with respect to default. 7. Under Issue No. 2 it was found that the provisions of U.P. Act No. 13 of 1972 are applicable. To arrive at the finding, the Trial Judge was of the view that part of the building in question was erected earlier and was let out to the tenant in the year 1984 and as such the first assessment dated 26.7.1993 in favour of Ashok Kumar Singh of the building in question is of little consequence. The building in question was constructed even prior to 1994 and was let out to the defendant on 1.6.1984, as is evident from the photo copy of the agreement between the parties. The suit was dismissed on 31.3.2003. On the very next day a review application purporting to be under Order XLVII, Rule 1, C.P.C. read with Section 114, C.P.C. was filed on the ground that there is an error apparent on the face of record. 8. It was stated in the review application that the fact that the tenancy commenced with effect from 26.10.1994 as pleaded by the plaintiffs was admitted by the defendant in his written statement and in the oral deposition as well. The photo copy of the alleged agreement dated 1.6.1984 is a forged and fictitious document and could not have been considered or relied upon as it is beyond the pleadings of the defendant. The second ground taken was that the said photostat copy of the agreement is not admissible in evidence and the judgment has been delivered by overlooking written statement and the statement of the defendant. The next ground raised was that building in question is a new construction, the plaintiffs have filed the copy of the relevant documents such as copy of the first assessment. No documentary evidence to rebut the same was filed by the defendant. The next ground raised was that building in question is a new construction, the plaintiffs have filed the copy of the relevant documents such as copy of the first assessment. No documentary evidence to rebut the same was filed by the defendant. It was also stated that no house number was mentioned in the premises occupied by Ashok Kumar Singh. The number 92/Bhawan/87 is the number of the sanctioned map and there was no such house bearing house No. 12/87. 9. After notice and inviting the objections and affording an opportunity to the defendant, the review application has been allowed by the impugned order dated 18.5.2004. It has been held that there is an error apparent on the face of record in the earlier judgment and decree of the Court inasmuch as the Court below ignored the pleadings of the parties and the statement of defendant as well. The Photostat copy of the alleged agreement was filed on 15.3.2003 while the argument was concluded earlier i.e. on 3.3.2003 and 10.3.2003 was the date fixed for delivery of judgment. On that day the defendant by filing some application prayed for time to file documentary evidence which was filed on 15.3.2003. The said document Paper No. 40-C was not got proved nor this document was referred by the defendant in his deposition. It was found that the building in question was a new construction and the provision of U.P. Act No. 13 of 1972 are not applicable to it and the review application was consequently allowed and the suit was decreed for recovery of arrears of rent @ 800/- per month as also for recovery of damages and possession. 10. The said order is under challenge in the present writ petition. 11. Shri Ravi Pratap, learned counsel for the petitioner submits that a Court exercising review jurisdiction has no power to re-assess the evidence and to decide the issue afresh. There was no error apparent on the face of record in the earlier judgment of the Trial Judge dismissing the suit in toto. The finding that some forgery was committed by the petitioner in the said agreement dated 1.4.1984 and the agreement was not proved, is incorrect. No such ground that the petitioner was a defaulter was raised in the review petition and as such the Court was not justified in recording a finding that the petitioner is a defaulter. 12. The finding that some forgery was committed by the petitioner in the said agreement dated 1.4.1984 and the agreement was not proved, is incorrect. No such ground that the petitioner was a defaulter was raised in the review petition and as such the Court was not justified in recording a finding that the petitioner is a defaulter. 12. Shri U.K. Mishra, learned counsel for the respondent on the other hand submits that the question of date of construction is not dependent on the lips of witnesses but has to be decided in accordance with the parameters as laid down in the Explanation to Section 2(2) of U.P. Act No. 13 of 1972. The plea that the building is a new construction and the provision of U.P. Act No. 13 of 1972 are not applicable was raised by the counsel for the respondents in the plaint specifically in paragraph 6 thereof. It has not been denied by the defendant in the written statement. The Trial Judge while dismissing the suit ignored the pleadings of the parties and wrongly reached to the conclusion that the shop in question was let out in the month of August 1984, whereas no such plea was ever raised by either of the parties. On the contrary the plaintiffs set out in the plaint that the defendant took the premises in question on rent on 26.10.1994 which was admitted vide paragraph 3 of the written statement. In sum and substance, he submits that earlier judgment and decree of the trial Court suffer with manifest error of law and was rightly reviewed by the Court below. 13. Apart from above, it was also submitted that the present writ petition is not maintainable as the petitioner has got an alternative remedy to challenge the impugned order by way of filing a revision under Section 25 of the Provincial Small Causes Court Act. Further the conduct of the petitioner is such which disentitles him to get any relief from this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. 14. Considered the respective submissions of the learned counsel for the parties. Further the conduct of the petitioner is such which disentitles him to get any relief from this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. 14. Considered the respective submissions of the learned counsel for the parties. The first and the foremost argument of the petitioners counsel is that the Court below has exceeded in its jurisdiction in entertaining and allowing the review application in the absence of there being any error apparent on the face of record, a prerequisite to invoke the power of review. 15. Reliance has been placed on Subhash v. State of Maharashtra and another, 2002 (5) ESC 231. This is a case under Administrative Tribunals Act, 1985 with a reference to Section 22(3) (f) of that Act. Wherein it has been held that Tribunal could have interfered in the matter if the error pointed out, is plain and apparent. The tribunal cannot proceed to examine the matter as if it is an original application before it. The another case relied upon is Savitri Devi (Smt.) v. Shri Lal Chand and Sri Rajendra Kumar Agarwal, 2004(1) ARC 669. In this case, this Court has laid down the following parameters, to exercise the power of review : (1) Review cannot be granted on the ground that decision is erroneous on merits. Such a ground is of appeal, but it cannot be ground of review. (2) There has been a wrong exposition of law or wrong decision on question of law cannot be ground for review. (3) An erroneous view of law on a debatable point has been taken cannot be ground for review. (4) That there has been a wrong application of law, cannot be ground for review. (5) The error of mistake as a consequence of wrong judgment or wrong inference, is not an error apparent on the face of record. (6) In case, a judgment is based on two or more grounds and each of the ground is sufficient to sustain the said judgment independently of the other, the judgment is not liable to be reviewed even though one of the ground is erroneous and the error is apparent on the face of record. 16. Now the question boils down to this as to whether there is an error apparent on the face of the record or not. 16. Now the question boils down to this as to whether there is an error apparent on the face of the record or not. The first ground raised in the review application was and which has also been accepted by the Court below is that in the earlier judgment, the Court recorded the findings ignoring the pleading of the parties and as also the evidence. In the earlier judgment the Court below has proceeded to decide the suit with the supposition and assumption that the shop in question was let out in the year 1984. 17. From a bare look of the pleading of the parties it is clear that the shop in question was let out on 26.10.1994 and in the judgment which has been reviewed, the Court ignored the pleadings. In paragraph 3 of the plaint, it has been stated that the disputed shop was given by Ashok Kumar Singh to the defendant on 26.10.1994 and in respect thereof an agreement of tenancy was executed between the parties. Its reply is given in paragraph 3 of the written statement. In paragraph 3 of the written statement, the contents of paragraph 3 of the plaint are admitted. It follows that there was no lis between the parties that the defendant came into occupation of the disputed shop as tenant on any day other than 26.10.1994. This vital fact with regard to pleadings was completely overlooked by the Trial Judge in the earlier judgment. 18. Secondly, the Trial Judge was very much influenced by the alleged agreement of rent dated 1.6.1984. It was nobody’s case either in the pleadings or in evidence that the tenancy commenced on 1.6.1984. The admitted case of the parties was that it commenced from 26.10.1994. Shri Pramod Kumar Singh was examined by the defendant-petitioner as DW 1. He, in examination-in-chief states that his mother took the shop in question on rent from Ashok Kumar Singh and a rent agreement was executed on 26.10.1994. In the entire deposition neither in examination-in-chief nor in cross-examination there is any whisper to show that the petitioner came into occupation of the disputed shop prior to 26.10.1994. The trial Judge, by no stretch of imagination could proceed to deliver the judgment that the tenancy commenced from 1.6.1984. 19. In the entire deposition neither in examination-in-chief nor in cross-examination there is any whisper to show that the petitioner came into occupation of the disputed shop prior to 26.10.1994. The trial Judge, by no stretch of imagination could proceed to deliver the judgment that the tenancy commenced from 1.6.1984. 19. Thirdly, Shri Pramod Kumar Singh the witness produced by the defendant has not stated even a word that some rent agreement was executed between the parties in the year 1984. 20. In paragraph 6 of the plaint, a specific plea was raised that the building in question is a new construction and as such provisions of U.P. Act No. 13 of 1972 are not applicable. The reply has been given in paragraph 6 of the written statement. The only reply is that the contents of paragraph 6 of the plaint are not admitted. There is not even a single averment in the written statement that the shop in question is not a new construction and is a old construction of the year 1984 or it has not been assessed for the first time in the year 1994. In other words, it is a case of total lack of pleading on the part of the defendant with regard to date of construction of the disputed shop. 21. It was also argued that the alleged agreement was filed after close of the argument when the judgment was reserved. Only a photo copy was filed which was not proved. The said document is not admissible in evidence as its original was neither filed nor summoned from the plaintiffs. The said document was filed after the close of the argument and was not admissible in evidence. Besides it being beyond the pleadings of the parties, there is no satisfactory proof of the non-availability of the original document. The said photo copy being a secondary photocopy was not proved by any evidence. 22. From the above, the errors in the earlier judgment is crystal clear, and no long drawn process to find it out is required. 23. To exercise review jurisdiction two things must exist—(1) Error in the judgment and (2) The error should be apparent on the record. 24. The errors, in the original order, as pointed out above is there. The error was not denied or could have possibly been denied by the petitioner. 23. To exercise review jurisdiction two things must exist—(1) Error in the judgment and (2) The error should be apparent on the record. 24. The errors, in the original order, as pointed out above is there. The error was not denied or could have possibly been denied by the petitioner. There is no challenge on this score in the writ petition. The learned counsel for the petitioner in reply could submit only this much that all these things could have been raised by the plaintiffs before a revisional Court by filing a revision against the judgment and could not be questioned by way of review. 25. Under what circumstances an order can be reviewed by Court even if there is an error, is the only question, now survives. 26. In Board of Control for Cricket, India v. Netaji Cricket Club, AIR 2005 SC 592 , it has been held as follows : “88. We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex-facie bad in law. Section 114 of the Code empowers a Court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in S. 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. 89. 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. 90. ............... 91. It is true that in Moran Mar Basselios Catholicos and another v. 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 : AIR 1954 SC 526 Para 32 : “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 emphasise 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 of 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 applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the 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. 92. Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms : AIR 2000 SC 1650 : 2000 AIR SCW 1760 : 2000 Cri LJ 2433 Para 52. “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. 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......" (Emphasis supplied) In Green View Tea and Industries, M/s. v. Collector, Golaghat, AIR 2004 SC 1738 , it has been held that when material on record has escaped notice of High Court while considering question of compensation, there is an error apparent on face of record and the matter was remitted to High Court for second look to its own judgment. In Rajendra Kumar v. Rambhai, AIR 2003 SC 2095 , it has been held that foremost requirement for entertaining review is that the order must suffer from error apparent on face of order and permitting the order to stand will lead to failure of justice. In Haridas Das v. Usha Rani Banik, AIR 2006 SC 1634 , it has been held that ignoring of material evidence is a good ground to review the order." 27. In view of the law as noted above, an order can be reviewed if the earlier order was passed under a mistake and could not have been passed but for erroneous assumption which in fact did not exist, or material on record has escaped the notice of the Court or the order suffers from error apparent on face of the order and permitting the order to stand will lead to failure of justice, are some of the recognized grounds on which an order can be reviewed. These grounds, as pointed out earlier do exist in the present case. The view taken by the Court below that there was an error on the face of the record cannot be said to be illegal or unreasonable. 28. These grounds, as pointed out earlier do exist in the present case. The view taken by the Court below that there was an error on the face of the record cannot be said to be illegal or unreasonable. 28. The learned counsel for the petitioner could not justify even in the written argument that in the original judgment the Court proceeded with the assumption that the tenant came in possession of the disputed property in the year 1984, which is contrary to record and the pleadings of the parties. The basis of the earlier judgment is the alleged rent note dated 1.6.1984. The said rent note could not be read in evidence. The error in the original judgment was rightly reviewed by the impugned judgment. 29. Now the next question arises with regard to finding recorded by the Court below on the question of date of construction of the building. In the original judgment the attention of the Court was invited that it is the date of the first assessment which is relevant to decide the date of construction in view of the Section 2(2) of U.P. Act No. 13 of 1972. The said argument was brushed aside in the earlier judgment and that the Court proceeded to decide the issue on the footing that a part of the building was constructed in the year 1984 (which was never the case of the petitioner in the written statement or in evidence) as is evident from the document filed by the tenant subsequent to the close of the hearing, but before the delivery of the judgment. The said document was obviously not admissible in evidence as it was not proved. Besides the above there was no pleading of the defendant-petitioner that the shop in question was constructed in the year 1984. What to say about the pleading even no evidence was produced by the defendant to show that any part of the construction was raised that the shop in question was constructed on any day prior to 1994. 30. In the earlier judgment which was reviewed, the Court proceeded to decide the date of construction on the basis of the oral submission of the learned counsel for the defendant completely ignoring the material on record. It is evident that it has placed reliance on alleged rent agreement dated 1.6.1984, allegedly it contains the signature of Ashok Singh Kashyap. 30. In the earlier judgment which was reviewed, the Court proceeded to decide the date of construction on the basis of the oral submission of the learned counsel for the defendant completely ignoring the material on record. It is evident that it has placed reliance on alleged rent agreement dated 1.6.1984, allegedly it contains the signature of Ashok Singh Kashyap. There is no averment that the said rent agreement was in any manner proved or its original was called for. The application to take the said document on record was filed after the close of argument as is evident from the judgment of the trial Court and was considered against the all judicial principles by the Court while dismissing the suit. 31. The apex Court in Ram Saroop Rai v. Smt. Leelawati, 1980 ARC 466, has held that date of construction shall be decided on the basis of the assessment record in the municipality and it will not be dependent on the lips of the witness. The statutory guidelines as prescribed under Section 2(2) has to be followed and the burden lay upon the landlord to establish date of construction. In Om Prakash Gupta v. Dig Vijendrapal Gupta, 1982 ARC 391, on a threadbare analysis of Section 2(2) as also the Explanation, it has reached to the conclusion that in the case of a building which is subject to assessment, the date of first assessment is the relevant date of the completion of the building. The following observation for the sake of convenience is reproduced below : “If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction.” 32. In this view of the matter, the finding in the judgment that the first assessment of the building is wholly irrelevant to determine the date of construction of building was patently erroneous in law and was rightly reviewed by the impugned order. 33. Before me except that the Court below has exceeded in its jurisdiction to allow the review application no argument was made on the merits of the case, to support the earlier judgment or to point out any illegal infirmity in the impugned order on merits. 34. 33. Before me except that the Court below has exceeded in its jurisdiction to allow the review application no argument was made on the merits of the case, to support the earlier judgment or to point out any illegal infirmity in the impugned order on merits. 34. Even assuming for a moment that the Court below has exceeded in its jurisdiction while reviewing the order, this will not be a valid ground to quash the said order. It is an accepted legal position that a writ petition is meant to do justice between the parties and not to enforce technicalities. 35. One of the principles is that if by issuing a writ an illegal order is restored back, it would not be appropriate exercise of writ jurisdiction to set aside such order whereby and whereunder justice has been done. If the order allowing the review application is set aside, the original order of the trial Court would be reviewed which, as demonstrated above, is illegal as also it is in teeth of the judgment of the apex Court. This is an additional reason not to interfere in the matter as it would cause injustice to the respondents. By the impugned order substantial justice has been done to the parties. 36. There is another aspect of the matter which cannot be ignored lightly. This writ petition was filed and the stay order was obtained in the year 2004 and was listed subsequently on various dates. It was dismissed in default on 9.3.2003 but was restored back subsequently. Thereafter it was dismissed in default on 30.3.2006 and was restored subsequently. Then it was dismissed in default on 1.5.2007 and again restoration application was filed. 37. The learned counsel for the contesting respondents very fairly took the stand that the petitioner is in habit of getting the writ petition dismissed in default and gets its restoration subsequently. He took a firm stand that he will have no objection if the writ petition is restored provided the petitioner’s counsel is prepared to argue the case on merits without seeking for any adjournment. To enable the learned counsel for the petitioner to argue out the case, it was adjourned keeping the restoration application pending and under such compelling circumstance, the petitioner’s counsel argued the matter finally. To enable the learned counsel for the petitioner to argue out the case, it was adjourned keeping the restoration application pending and under such compelling circumstance, the petitioner’s counsel argued the matter finally. The learned counsel for the respondents submits that the petitioner is guilty of abusing the process of Court and the writ petition should be dismissed out right. Be that as it may, I have noticed the fact as pointed by the respondent and proceeded to decide the writ petition on merits. 38. There is some force in the argument of the petitioner that question of default was decided in his favour and it was based on the appreciation of evidence. The said finding could not have been reviewed on reappreciation of evidence. 39. In the review application also no such grievance was raised by the respondent that the finding recorded under issue No. 1 is incorrect. This part of the judgment of the Court below decreeing the suit for recovery of arrears of rent cannot, therefore, be sustained and is liable to be set aside. 40. During the pendency of the writ petition this Court by the order dated 6.11.2006 directed the petitioner to pay the damages @ Rs. 2,100/- per month to the landlord. The petitioner submits that the said order is being complied with. 41. In view of the above discussion, the writ petition is allowed in part. The judgment and decree so far as it relates to ejectment of the petitioner and recovery of pendente lite and future damages is concerned, is sustained but the decree for recovery of arrears of rent is set aside. 42. Time upto 31st December, 2007 is granted to the petitioner to vacate the disputed shop provided he continues to deposit the damages @ Rs. 2,100/- per month as directed earlier. The petitioner shall deposit the damages for the period up to 31.10.2007 and the arrears if any within a period of one month from today and shall also file an undertaking on affidavit before the trial Court within the aforesaid period stating that he will hand over actual physical and peaceful possession without creating any third party interest to the landlord on or before 31.12.2007. In case of non-compliance of any of the conditions stipulated above, it shall be open to the landlord respondents to proceed with the execution of the decree. 43. In case of non-compliance of any of the conditions stipulated above, it shall be open to the landlord respondents to proceed with the execution of the decree. 43. In view of the divided success, no order as to costs. ————