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2011 DIGILAW 1117 (MP)

Mohammed Shafi v. Abdul Wahid

2011-09-22

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2011
ORDER 1. This review petition under Order 47 rule 1 read with section 151 of the CPC is directed against the judgment dated 24th November, 2010 passed in Second Appeal No.1307/2005. 2. In brief, the review petitioner was defendant in Civil Suit No.164-A/2002 filed by the respondent seeking eviction from the tenanted premises under the provisions of M.P. Accommodation Control Act, 1961. The suit was opposed by the petitioner inter alia on the ground that no landlord tenant relationship exist and he was the owner of the suit premises. The trial Court had decreed the suit on the ground of denial of title. The first appellate Court had allowed the appeal and dismissed the suit on the ground that the relationship of landlord tenant was not established. The Second Appeal No.1307/2005 has been allowed by the learned Single Judge recording concession of the counsel for petitioner and granting time to the petitioner to vacate the suit premises. In view of the fact that the learned Single Judge who had passed the said judgment has demitted the office, the present review petition is placed before the DB in terms of rule 13(1)(b)(ii)(1) of Chapter IV of the High Court of M.P. Rules, 2008. 3. Learned counsel for the petitioner submits that this Court has wrongly recorded the concession of the counsel for petitioner, though no such concession was given by him as is apparent from his affidavits. He further submitted that the circumstances of the case also demonstrated that there was no occasion to give such a concession. He has further submitted that the matter was not listed for final hearing, yet it was heard finally and that the judgment in the second appeal is not in accordance with section 100 of the CPC and Order 23 rule 3 CPC. He further submitted that the factual finding cannot be recorded on the basis of concession and that the undertaking given by the petitioner in pursuance to the judgment in second appeal would not affect his right to pursue the review petition. 4. Learned counsel for respondents, opposing the review petition, submitted that the present matter does not fall within the scope of the review jurisdiction and that concession given by the counsel on the question of fact is binding. He has also referred to the undertaking given by the petitioner before the trial Court for vacating the suit premises. 5. 4. Learned counsel for respondents, opposing the review petition, submitted that the present matter does not fall within the scope of the review jurisdiction and that concession given by the counsel on the question of fact is binding. He has also referred to the undertaking given by the petitioner before the trial Court for vacating the suit premises. 5. We have heard the learned counsel for parties and perused the record. 6. Before proceeding in the matter, it would be relevant to take note of the scope of the review jurisdiction under Order 47 rule 1 of the CPC. The Supreme Court in the matter of Board of Control for Cricket in India v. Netaji Cricket Club, reported in (2005)4 SCC 741 , has held that the review is also maintainable if it is necessitated on account of some mistake or anyother sufficient reason and that the words “sufficient reason” are wide enough to include misconception of fact or law by a Court or even an Advocate. The Supreme Court has held thus : “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. 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 “sufficient reason” in Order 47 rule 1 of the Code are 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 involving the doctrine “actus curiae neminem gravabit.” 7. In the matter of Lily Thomas v. Union of India, reported in (2000)6 SCC 224 , it has been held that : “52. .... An application for review may be necessitated by way of involving the doctrine “actus curiae neminem gravabit.” 7. In the matter of Lily Thomas v. Union of India, reported in (2000)6 SCC 224 , it has been held that : “52. .... 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 a miscarriage of justice nothing would preclude the Court from rectifying the error.” 8. The relevant part of the order of the learned Single Judge recording the concession of the counsel for petitioner and disposing of the matter in the light of the said concession, reads as under : “At the commencement of arguments, Shri M.OL. Bansal, learned counsel appearing for the defendant-respondent stated that in order to resolve the entire controversy, the defendant-respondent admits the grounds of ejectment raised by the plaintiff-appellant, as upheld by the learned trial Court, and therefore, he has no objection if the judgment and decree dated August 24, 2005, passed by the first appellate Court, are set aside and if the judgment of the trial Court is restored. Shri Bansal specifically states that the defendant-tenant accepts the relationship of landlord and tenant between the parties. However, learned counsel requests that the defendant-respondent be granted time uptill March 31, 2012, to vacate the premises in question. Shri A.K. Sethi, learned senior counsel appearing for the plaintiff-appellant, accepts the offer made by learned counsel for the defendant-respondent. In view of the aforesaid agreement between learned counsel for the parties, the present appeal is allowed and the judgment and decree dated August 24, 2005, passed by the first appellate Court, are set aside and as a result thereof, the judgment and decree of the trial Court are restored. It is held that there is a relationship of landlord and tenant between the parties. The suit filed by the plaintiff-appellant is decreed, as had been done by the trial Court. However, the defendant-respondent shall not be dispossessed from the premises in question, before March 31, 2012.” 9. It is held that there is a relationship of landlord and tenant between the parties. The suit filed by the plaintiff-appellant is decreed, as had been done by the trial Court. However, the defendant-respondent shall not be dispossessed from the premises in question, before March 31, 2012.” 9. After holding aforesaid, the learned Single Judge had directed the petitioner to furnish an undertaking before the Executing Court on or before December 21, 2010 for vacating the premises on or before 31st March, 2012. 10. In the present matter, it has been submitted that there is an error apparent on the face of the record since no concession was made by the counsel for petitioner before the Court at the time of hearing which took place on 24th November, 2010. The detailed affidavit of Shri M.L. Bansal dated 19.7.2011 has been placed on record to disclose as to what transpired on that date in the Court. The learned advocate has stated on oath that at no point of time during the hearing of the second appeal, he had admitted the grounds of ejectment or given no objection for setting aside the judgment of the first appellate Court or accepted the relationship of landlord and tenant between the parties. On the contrary, he has stated that a request was made by him for adjournment since his client was not present in the Court on that day. Shri M.L. Bansal, Advocate has also filed an affidavit dated 3.1.2011 in support of the review application where the same facts have been mentioned. The letter dated 28.11.2010 which was written by Shri M.L. Bansal to the review petitioner immediately after the impugned judgment has been placed on record in which also it has been mentioned as to how the appeal was allowed on that day without accepting his prayer for adjournment. 11. As against this, the respondent has not filed the affidavit of his counsel who had appeared on 24th November, 2010, to controvert the said facts. 12. 11. As against this, the respondent has not filed the affidavit of his counsel who had appeared on 24th November, 2010, to controvert the said facts. 12. The counsel for petitioner has also drawn the attention of this Court to the circumstances of the case and pointed out that the petitioner from the initial stage of the suit is claiming title on the suit property and the landlord tenant relationship was not found proved by the first appellate Court which was the final fact finding Court, therefore, there was no occasion for conceding in favour of the respondent and accepting landlord tenant relationship which will deprive the petitioner of the property on which he is claiming the title. 13. The Supreme Court in the matter of B.S. Bajwa v. State of Punjab, reported in (1998)2 SCC 523 , has held that the concession on the point of law is not binding and it is open to withdraw it by filing a review petition. In the matter of Deepti @ Arati Rai v. Akhil Rai, reported in (1995)5 SCC 751 , it has been held that if the concession is made by the counsel without going through the record, the Court should take care to verify the record before accepting the concession made by the counsel and apply its mind. In the matter of Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, reported in (1991)4 SCC 195 , the Supreme Court has held that any concession made by the Government pleader in the trial Court cannot bind the Government as it is unsafe to rely upon the wrong or erroneous or wanton concession made by the counsel unless it is in writing on instructions from the responsible officer. In Union of India v. Hira Lal, reported in (1996)10 SCC 574 , Supreme Court held that the concession on a question of law cannot said to be binding and in the matter of Uttam Rao, Shivdas Jankar v. Ranjitsingh Vijaysingh Mohite Patil, reported in (2009)13 SCC 131 , the Supreme Court took the view that statutory right of a party for all intend and purpose should not be denied only on the basis of a wrong concession made by the counsel. 14. 14. On considering the affidavit of the Advocate, the letter which was written by the Advocate immediately after the judgment to the petitioner and the stand of the petitioner in the suit and the findings of the first appellate Court recorded in favour of the petitioner, we find substance in the argument of the counsel for the petitioner that there was no reason for the counsel to make such a concession in favour of the respondent and that some misconception or misunderstanding had occurred at the time of hearing of the appeal, resulting into recording of such a concession. 15. Counsel for the respondent has raised an objection that the concession made by the petitioner’s counsel was a concession on question of fact, therefore, it is binding. Such a submission, cannot be accepted since the aforesaid analysis indicates that either no such concession was made by counsel for petitioner or such a concession was recorded under some misconception and that the said concession was not on the basis of the instructions of the client and it was improbable to make such a concession considering the circumstances of the case. 16. From the perusal of the cause list dated 24.11.2010, we have also noticed that on that date the second appeal was listed in motion hearing for further orders. It was not listed for final hearing, therefore, counsel for the petitioner is justified in his submission that the counsel appearing in the matter was not prepared on merit and was seeking adjournment to obtain instructions. 17. It is also worth noting that the second appeal was already admitted for hearing on 9.1.2006 and three substantial questions of law were formulated by this Court, but apparently in the order dated 24th November, 2010, neither those substantial questions of law have been taken note of nor they have been decided. The finding of landlord tenant relationship has been recorded on the basis of the concession made by the counsel for petitioner. The said concession was not even supported by the instructions of the petitioner since in the uncontroverted affidavit, the Advocate has stated that his client was not present in the Court on that day. 18. The finding of landlord tenant relationship has been recorded on the basis of the concession made by the counsel for petitioner. The said concession was not even supported by the instructions of the petitioner since in the uncontroverted affidavit, the Advocate has stated that his client was not present in the Court on that day. 18. An issue has also been raised in respect of the maintainability of the review petition in view of the fact that in pursuance to the order dated November 24, 2010, the petitioner had submitted an undertaking before the Executing Court for vacating the suit premises on or before 31st March, 2010. It is no longer res integra that by giving such an undertaking the statutory remedy of appeal, revision or review etc. is not scuttled or foreclosed. The Supreme Court in the matter of P.R. Deshpande v. Maruti Balaram Haibatti, reported in (1998)6 SCC 507 , has settled the said controversy by holding that : “11. A party to a lis can be asked to give an undertaking to the Court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking, no Court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by the superior Court or even the same Court on a review, the undertaking given by the party will automatically cease to operate. Merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay, he cannot be presumed to communicate to the other party that he is hereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long as the order remains alive and operative. However, it is open to such superior Court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the party concerned has given undertaking in the lower Court to abide by the decree or order within the time fixed by that Court.” 19. However, it is open to such superior Court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the party concerned has given undertaking in the lower Court to abide by the decree or order within the time fixed by that Court.” 19. By the above judgment, the Supreme Court has approved its earlier view in the matter of Prashant Ramchandra Deshpande v. Maruti Balaram Haibatti, reported in 1995 (Supp.)2 SCC 539. 20. We have examined the undertaking which was given by the petitioner before the Executing Court. The said undertaking was given by the petitioner expressly stating that the undertaking was without prejudice to his legal rights. Thus, in view of the aforesaid judgment of the Supreme Court and the language of the undertaking, we find that the petitioner’s remedy to file the present review petition is not closed on that account. 21. It is also worth noting that by the judgement dated 24th November, 2010, the second appeal was allowed noting the alleged “agreement” between the counsel for the parties whereas under Order 23 rule 3 CPC, suit can be compromised by a lawful agreement in writing and signed by the parties or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, but these conditions are non-existent in the present case. 22. Thus, in view of the aforesaid analysis, we find that there is error apparent on the face of the record and sufficient reason exists for reviewing the judgment passed in second appeal. Such a review is necessary keeping in view the doctrine of “actus curiae neminem gravabit”. 23. Accordingly, we allow the review petition and recall the judgment dated 24th November, 2010 passed in Second Appeal No.1307/2005 and restore the second appeal to its original position for final decision as per roster in accordance with law. .............