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2011 DIGILAW 625 (ALL)

M. ISMAIL FARUQUI v. NIRMOHI AKHARA, AYODHYA, FAIZABAD

2011-03-11

S.U.KHAN, SUDHIR AGARWAL, VIRENDRA KUMAR DIXIT

body2011
JUDGMENT : SUDHIR AGARWAL, J. – This application has been filed by Dr. M. Ismail Faruqui seeking review of judgment dated 30.9.2010 in O.O.S No.3 of 1989 (hereinafter referred to as Suit-3). The application has been filed much beyond the period of limitation. The Review Application is accompanied by three applications namely, delay condonation application; dispensation of filing of certified copy of judgment; and seeking time for filing affidavit in support of review application. These three applications accompanying review application are almost identical and similarly worded as the three applications accompanying review application No.1 of 2010 which we have decided by a detailed order of date. For the reasons stated in our order of date in review petition No.1 of 2010, the delay condonation application and application seeking dispensation of filing of certified copy of the judgment are allowed. 2. So far as application dated 22.11.2010 seeking time to file affidavit in support of review application is concerned, on this aspect in para 5 of our order of date in Review Application No. 1 of 2010, we have observed as under: "Now come third application whereby time for filing affidavit in support of review application has been sought. In para 2 thereof, applicant has requested for grant of a fortnight's time. This application is dated 18.11.2010. It was taken up by Court for the first time on 10.12.2010. Much longer time was allowed to applicant by adjourning the matter to 28th January 2011, i.e., time of more than a month and half was available to the applicant to file affidavit in support of review petition. The application seeking time for filing affidavit thus has already rendered infructuous. No affidavit however has been filed. This itself is a sufficient reason to reject review application." The above observations squarely apply here also. 3. However, we had permitted applicant to address Court on merits so as to find out whether there is any substance whatsoever in the review application. This Court adopted this procedure, though normally not, only to satisfy itself that no glaring or apparent error has crept in the judgment and there is no occasion for injustice to any of the parties. This approach, the Court has adopted, considering peculiar and sensitive nature of the matter. 4. This Court adopted this procedure, though normally not, only to satisfy itself that no glaring or apparent error has crept in the judgment and there is no occasion for injustice to any of the parties. This approach, the Court has adopted, considering peculiar and sensitive nature of the matter. 4. The only ground on which review of our judgment in O.O.S. No.3 of 1989 sought is that earlier Sarbarahkar Mahant Raghubar Das of Nirmohi Akhara had filed Suit No. 61/280 of 1885 relating to a platform measuring 21 feet x 17 feet and did not include the premises of the adjacent mosque. The said Suit having been dismissed, Suit-3 therefore was barred and not maintainable in terms of Order II, Rule 2 C.P.C. 5. In Suit 3 no issue was raised by any of the parties regarding res judicata or Order II, Rule 2, C.P.C. Referring to Suit No. 61/280 of 1885, in the connected three suits, issues of res judicata were raised and decided by the Court. On these issues, the Court unanimously has observed that suit No. 61/280 of 1885 would not operate res judicata. The applicant could not dispute that Suit No. 61/280 of 1885 would not operate res judicata. The applicant could not dispute that ssuit No, 61/280 of 1885 was not filed for seeking possession or for declaration of ownership. He also could not explain how Order II, Rule 2, C.P.C. is attracted. Moreover the applicability of Order II, Rule 2 was never an issue in any of the Suits though issues were framed long back, initially on 5.3.1964, and thereafter addition, alteration and--modification thereof were permitted. Issues were reframed before this Court also, almost one and half a decade back. In the circumstances it cannot be said that something which was not raised can be allowed to be agitated in the garb of review application. This is beyond the scope of review under Order XL VII, Rule I, C.P.C. The review is permissible on limited ground and the scope is quite narrow. It is not an appeal in disguise. The review applicant cannot be allowed to re-argue or argue afresh the case in the garb of review. Vide order of date in Review Application No.1 of 2010 in O.O.S. No.1 of 1989 we have already discussed in detail the scope of review and the same holds good here also. 6. It is not an appeal in disguise. The review applicant cannot be allowed to re-argue or argue afresh the case in the garb of review. Vide order of date in Review Application No.1 of 2010 in O.O.S. No.1 of 1989 we have already discussed in detail the scope of review and the same holds good here also. 6. For the reasons stated hereinabove, we are of the view that this Review Application is thoroughly misconceived and devoid of any merit. 7. Rejected. No cost. Revision Petition Rejected.