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2008 DIGILAW 1051 (AP)

Gram Panchayat Banswada, Represented by Panchayat Secretary, Village Secretariat Banswada Nizamabad District v. Yashoda

2008-12-10

P.S.NARAYANA

body2008
Order: Sri Serla Pandari, learned counsel representing the review petitioner in Rev.S.A.M.P.No.2606 of 2008 in S.A.No.484 of 1991 had taken this Court through the grounds raised in the review petition and would maintain that it was not brought to the notice of this Court that in a suit of this nature, the relief of declaration prayed for and the consequential relief for perpetual injunction, which had been prayed for, cannot be granted. The learned counsel, incidentally, had drawn attention of this Court to Sections 6 and 7 of Land Encroachment Act, 1905 (hereinafter referred as 'the Act' in short for the purpose of convenience) and would maintain that even on facts the civil Court could not have entertained the suit of this nature and that in the light of the facts and circumstances, which had been explained in detail this being an error apparent on the face of record, the present review petition is perfectly maintainable. Incidentally, the learned counsel also had drawn attention of this Court to the relevant findings recorded by the learned Judge of this Court while allowing Second Appeal Nos.484 and 485 of 1991 by common order. The learned Government Pleader for Arbitration representing the review petitioners in Rev.S.A.M.P.No.2972 of 2008 in S.A.No.485 of 1991, while making submissions, pointed out that in the light of Section 14 of the Act, the very entertainment of the suit by the civil Court is illegal. This being an error apparent on the face of record, such judgment can be reviewed. Further, the learned counsel also pointed out to the relevant findings recorded by the learned Judge while allowing the second appeals and ultimately would submit that in the light of the facts and circumstances, the Review S.A.M.Ps to be allowed and the second appeals to be dismissed. On the contrary, Sri Raghuveer Reddy, learned counsel representing the respondents, in all fairness, would maintain that in the light of the nature of findings recorded by the learned Judge the same may be called in question by invoking the appropriate remedy before the higher forum, the Apex Court, at any rate. In the light of the facts and circumstances and since these review petitions would not fall either under Section 114 or Order XLVII Rule 1 C.P.C., the same are to be dismissed. In the light of the facts and circumstances and since these review petitions would not fall either under Section 114 or Order XLVII Rule 1 C.P.C., the same are to be dismissed. The learned counsel also would further point out that the Court could have recorded a different finding in the facts and circumstances, which may touch the merits and demerits of the matter, and the same cannot be a ground for review and the remedy to the review petitioners if any is elsewhere. Even otherwise, the learned counsel would maintain that these review applications are being filed after a long lapse of time and the inordinate delay also may have to be taken into consideration while interfering with such common order. Heard the learned counsel on record and perused the material. The aforesaid Review S.A.M.Ps. had been filed under Section 114 r/w Order XLVII Rule 1 of the Code of Civil Procedure (hereinafter referred to as the "the code" in short for the purpose of convenience) to review the common order dated 21.11.2001 passed by this Court in S.A.Nos.484 and 485 of 1991. As can be seen from the facts, the suit O.S.No.290 of 1976 on the file of the District Munsiff, Bodhan had been instituted by the plaintiffs praying for declaration and consequential relief of injunction in relation to certain notices issued under the Act and the same was transferred and renumbered as O.S.No.4 of 1987 on the file of the District Munsiff, Banswada. The Court of first instance, on appreciation of evidence available on record, decreed the suit. Aggrieved by the same, both the Gram Panchayat and the Government preferred appeals A.S.Nos.1 and 21 of 1988 respectively on the file of the learned Subordinate Judge, Bodhan and the appellate Court allowed the said appeals. Aggrieved by the reversing decrees and judgments made by the lower appellate Court, the unsuccessful plaintiffs preferred the present second appeals S.A.Nos.484 and 485 of 1991 and this Court by common order dated 21.11.2001 allowed the said second appeals. Aggrieved by the nature of findings, which had been recorded and also the result in these matters i.e., allowing of the second appeals, the Gram Panchayat, Banswada and also the Government filed the present Review Petitions. The submissions made by the respective learned counsel on record already had been referred to above. Section 114 of the Code dealing with Review reads as hereunder: "114. The submissions made by the respective learned counsel on record already had been referred to above. Section 114 of the Code dealing with Review reads as hereunder: "114. Review - Subject as aforesaid, any person considering himself aggrieved,- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." Order XLVII Rule I of the Code dealing with application for review of judgments reads as hereunder: "1. Application for review of judgment: (1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the applicant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment." Section 152 of the Code dealing with amendment of judgments and decrees and all orders specifies that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. It may be appropriate to have a glance at Order XX Rule 3 of the Code as well. It is needless to say that Order XX of the Code deals with judgment and decree and Order XX Rule 3 of the Code dealing with judgment to be signed specifies that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review. The Apex Court in Devaraju Pillai v. Sellayya Pillai AIR 1987 SUPREME COURT 1160 observed that if the party is aggrieved by the Judgment of the single Judge sitting in Second Appeal the appropriate remedy for the party is to file an appeal against that Judgment. A remedy by way of an application for review is entirely misconceived and if a single Judge entertains the application for review then he totally exceeds his jurisdiction in allowing the review, merely because he takes a different view on construction of the document and the view expressed in Sellayya Pillai v. Devaraya Pillai AIR 1972 Mad 309 had been reversed by the Apex Court. While following its judgment in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SUPREME COURT 137 the Apex Court in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SUPREME COURT 455 explained the scope and ambit of the review petition and the limits thereof and observed that error apparent on face of record, means an error which strikes one on mere looking at record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. In Northern India Caterers (India) Ltd., M/s. v. Lt. Governor of Delhi AIR 1980 SUPREME COURT 674 the Apex Court held that where the decision was based on undisputed facts, no review is permissible on the ground that certain alternative situations were not placed before Court. The Apex Court in Chandra Kanta v. Sheik Habib AIR 1975 SUPREME COURT 1500 observed that when once an order has been passed by it the order cannot be lightly interfered with. In the light of the above legal position, this Court is of the considered opinion that the remedy, if any, available to the review petitioners being elsewhere, without expressing any further opinion relating to the other merits and demerits of the matter, the Rev.S.A.M.Ps are hereby dismissed. The parties to bear their own costs.