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2014 DIGILAW 3616 (ALL)

Pratibha Verma v. XII-Additional District Judge

2014-12-04

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal, J. 1. This review petition arises out of the judgment and order dated 13.1.14, passed in Writ Petition No. 41(R/C) of 1999, filed by the review petitioner which was dismissed giving six months time to the petitioner to vacate the premises in dispute and for this period of six months to deposit Rs. 6000/- per month as damages for use and occupation within a month before the court below to be paid to the land lord- respondent. The petitioner was further required to file an undertaking before the court below to the effect that within six months from the date of judgment he will vacate and hand over possession of the property in dispute to the respondent and shall also deposit the entire decretal amount within one month before the court below to be paid to the respondent. 2. The brief facts giving rise to the filing of this review petition are that the petitioner filed a writ petition before this Court assailing the judgment and decree passed by the Judge, Small Causes Court, Lucknow in SCC Suit No. 250 of 1995, Kamakhya Dhaam Charitable Trust, Baba Bhoot Nath v. Smt. Pratibha Verma. The subject matter of the dispute is a shop which is in occupation of the petitioner on a monthly rent of Rs. 480/-. The respondent No. 2-landlord in his plaint specifically pleaded that U.P. Act No. 13 of 1972 (Act) was not applicable to the building in dispute; firstly, because the first assessment was made in September, 1990 which would be the date of construction and the Rent Control Act would be applicable after expiry of a period of 40 years and secondly because the property belonged to Public Religious Institution/Trust and therefore, the property was exempted from the purview of the Act. The trial court dismissed the suit on 30.5.1997. The respondent No. 2 had pleaded that the rate of rent is Rs. 480/- per month but the petitioner, however, asserted that the rate of rent was Rs. 585/- per month which was deposited under Section 30 of the Act. The trial court held that the Act was applicable to the building in dispute and the review petitioner was not defaulter. With regard to the applicability of the exemption clause, the trial court held that since the trust deed was not registered, it was not proved that it was a public charitable trust. The trial court held that the Act was applicable to the building in dispute and the review petitioner was not defaulter. With regard to the applicability of the exemption clause, the trial court held that since the trust deed was not registered, it was not proved that it was a public charitable trust. The trial court further held that the petitioner was tenant since 1981 and thus the year of construction of building was 1981. 3. Feeling aggrieved by the judgment and decree passed by the trial court, the respondent No. 2 filed SCC Revision No. 88 of 1997 which was allowed by the Additional District Judge, Court No. 13, Lucknow, vide judgment and order dated 22.3.1999 setting aside the judgment and decree of the trial court. Consequently the suit of the respondent No. 2 for eviction of arrears of land and recovery of rent was decreed. The petitioner being dis-satisfied with the judgment and order passed in SCC Revision No. 88 of 1997, preferred a writ petition being Writ Petition No. 41 (R/C) of 1999 before this Court, which was dismissed vide judgment and order dated 13.1.2014. 4. In the aforesaid background I have heard Shri Brijesh Kumar Saxena appearing on behalf of the review petitioner and Shri P.K. Khare, appearing on behalf of the respondent No. 2. 5. The learned counsel for the review petitioner has submitted that both the courts below proceeded to decide the controversy with regard to the applicability of the Act on the shop in dispute and the learned trial court found that the Act was not applicable to the building because the year of construction of the building was 1990 and as such the building was exempted for a period of 40 years from the date of construction. The learned trial court also found that the building was a Public Religious Institution and was, therefore, exempted from the operation of the Act. 6. On a revision being filed by the respondent No. 2 the revisional court held that the year of construction of the building was 1981 and as such the building was beyond the purview of the Act but with regard to Public Charitable Trust the revisional court found that since the trust deed was not registered, as such it was not proved that it was a Public Charitable Trust. 7. 7. The main ground for reviewing the judgment and order passed in the writ petition is that the learned counsel for the review petitioner while arguing the case before the Court made submissions and also relied upon several decisions of this Court as well as of the Hon'ble Supreme Court and also pointed out the perversity and legal infirmities in the judgment of the revisional court. The court after hearing the arguments, reserved the judgment and the same was pronounced on 13.1.2014. 8. It has also been submitted on behalf of the review petitioner that after the parties counsel had finished their arguments the court put a question to the review petitioner as to whether the review petitioner was ready to enhance the rent to reasonable extent as to be determined by the Court, to which learned counsel for the review petitioner readily agreed. Thus the review petitioner was under a genuine impression that while deciding his writ petition the Court instead of dismissing the writ petition would enhance the rate of rent and permit the review petitioner to continue in the shop in the capacity of tenant. However, when the judgment was pronounced, the review petitioner was surprised to know that instead of enhancing the rent, the Court dismissed the writ petition and directed the review petitioner to vacate the shop within a period of six months. The learned counsel for the review petitioner has also brought to the notice of this Court that at the time when the arguments were heard and the judgment was reserved it was also reduced in writing in the order that on enquiry the counsel for the review petitioner agreed that in case the writ petition is allowed, the tenant would be ready to enhance the rent to a reasonable extent as determined by the Court. 9. The learned counsel for the review petitioner further submits that the learned revisional court on the basis of the material on record found that the opposite party No. 2 was not a Public Charitable Trust for want of registration of trust deed. This Court while referring to para 6 of the plaint and para 5 of the written statement came to the conclusion that the averment made in the para 6 of the plaint with respect to the Public Charitable Trust, were admitted by the petitioner in para 5 of the written statement. This Court while referring to para 6 of the plaint and para 5 of the written statement came to the conclusion that the averment made in the para 6 of the plaint with respect to the Public Charitable Trust, were admitted by the petitioner in para 5 of the written statement. It appears that this Court taking recourse of Order 8 Rule 5 CPC concluded that since the averment made in para 6 of the plaint were not specifically denied by the petitioner in para 5 of the written statement, therefore, the averment made in para 6 of the plaint would be deemed to have been admitted. The provision of Order 8 Rule 5 CPC provides that if any averment made in the plaint is not specifically denied in the written statement, the same would be deemed to has been admitted. It has been argued by the learned counsel for the review petitioner that it was never argued by the learned counsel for the opposite party No. 2 that the averment made in para 6 of the plaint has not been specifically denied in the written statement and therefore, the said averment should be deemed as admitted. The parties counsel submitted their written submission also before the court but not a whisper was made therein that since the averment made in para 6 of the plaint is not specifically denied, therefore, it should be deemed to has been admitted. Since this Court has based its finding on the basis of the argument which was never argued by any of the parties, the judgment is erroneous. On this ground alone the judgment is liable to be reviewed. 10. In support of his argument, the learned counsel for the review petitioner has relied upon a case reported in AIR 2005 Supreme Court, 592 Board of Control for Cricket, India and another v. Netaji Cricket Club and others. In this case the Hon'ble Apex Court has observed that there is no limitation on the power of the Court to be exercised under Order 47 Rule 1 CPC which provides for review of the judgment on certain ground. The Hon'ble Supreme Court has observed that Section 114 of the Code empowers the Court to review its judgment if the conditions laid down therein are satisfied. The Hon'ble Supreme Court has observed that Section 114 of the Code empowers the Court to review its judgment if the conditions laid down therein are satisfied. This provision does not prescribe any limitation on the powers of the Court and 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. A mistake on the part of the Court which would include a mistake in the nature of the understanding 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' is wide enough to include a misconception of fact or law by a Court or even an Advocate. 11. Another case relied upon by the learned counsel for the review-petitioner reported in (2013) 8 SCC 337 Union of India v. Sandur Manganese and Iron Ores Limited and others; In this case the Hon'ble Supreme Court has held that if in the judgment the Court misquoted the report of the expert committee, it would a good ground for review of the judgment and order. However, the Hon'ble Supreme Court has further held that the power of review is not in the nature of appeal and has to be strictly confined to scope and ambit of Order 47 Rule 1 CPC. The power of review can be exercised only on discovery of new and important matter or evidence which was not within the knowledge of the petitioner or could not be produced by him, the mistake or error apparent on the face of the record or for any other sufficient reason. 12. The submission on behalf of the review-petitioner is that the judgment of which review has been sought, suffers from apparent errors on account of mis-conception of law as well as the material facts of evidence. 12. The submission on behalf of the review-petitioner is that the judgment of which review has been sought, suffers from apparent errors on account of mis-conception of law as well as the material facts of evidence. The learned counsel has drawn attention of the Court towards paragraph 6 of the plaint in which it has been asserted by the opposite party No. 2 that the plaintiff is a Public Religious Institution/Public Charitable Trust and the provision of U.P. Act No. 13 of 1972 is not applicable. The paragraph 6 of the plaint was replied in paragraph 5 of the written submission in which it was stated that the reply to the contents of para 6 of the plaint would be given at the time of argument. Thus the petitioner did not admit in any manner that the opposite party No. 2 was a Public Charitable Trust. This Court has, without there being any argument on the point, considered the provisions of Order 8 Rule 5 CPC and concluded that since the averments made in para 6 of the plaint are not specifically denied, therefore, the same would be deemed to have been admitted by the review petitioner. It is a clear mis-conception of law and error apparent on the face of record because this point was never argued by any of the parties at any stage of the case. 13. Shri P.K. Khare, learned counsel for the opposite party No. 2, while giving reply to the arguments advanced on behalf of the review petitioner submits that the judgment in the writ petition was delivered on 13.1.2014. The review petitioner instead of filing the review petition within time waited for the Hon'ble Judge who passed the judgment under review to retire, and only after retirement of the Hon'ble Judge, the review petition was filed with delay. 14. He further submits that it is a settled principle of law that the Court of law has to act in accordance with law and has to be guided by the law. Thus even if a legal argument is not raised by any of the parties, the Court is legally bound to consider and examine the controversy between the parties in the light of the relevant law. Thus even if a legal argument is not raised by any of the parties, the Court is legally bound to consider and examine the controversy between the parties in the light of the relevant law. There is a specific provision under Order 8 Rule 5 C.P.C. that if an averment made in the plaint is not specifically denied by the defendant in his written statement, the same would be treated as admitted. 15. The review petitioner instead of specifically denying that the opposite party No. 2 is a Public Charitable Trust, merely stated that the reply to this para would be given at the time of argument. This statement made by the petitioner in para 5 of the written statement would be an implied admission that the opposite party No. 2 is a Public Charitable Trust. He has further submitted that so far as the date of construction of building is concerned, the same was held to have been constructed in the year 1981, as the review petitioner was continuing as tenant since 1981. Although the area in which the building in question is situated, was outside the Municipal area in the year 1981 and was for the first time included in the Municipal limits in the year 1990, the date of construction of the building would not change by extension of the Municipal limits. The Hon'ble Court, while deciding the writ petition found that the finding of the revisional court on this point was erroneous and while reversing the finding of the learned revisional court, this Court found that the date of construction of the building was 1981. As the review petitioner had not denied in the written statement that the opposite party No. 2 is a Public Charitable Trust, the same would be deemed to have been admitted to him irrespective of the fact as to whether any party raised this argument before the court or not? 16. The learned counsel for the review petitioner has argued that admittedly in the year 1981 when the building was let out to the review petitioner, the trust was not in existence and the property was let out by Baba Bhoot Nath himself. Thus, admittedly the trust was not the landlord but subsequently it appears that a trust was created in order to manage the affairs of the temple etc. Thus, admittedly the trust was not the landlord but subsequently it appears that a trust was created in order to manage the affairs of the temple etc. but the review petitioner continued as the tenant of Baba Bhoot Nath and after his death, of his legal heirs. The review petitioner was never tenant of the trust and this important aspect of the matter has also not been examined by this Court while deciding the writ petition while as a matter of fact the arguments were advanced on this point also. This argument put forward on behalf of the review petitioner, has no force as the opposite party No. 2 in para 1 of the plaint itself, stated that the opposite party No. 2 was the owner and the landlord of shopping complex, namely, Shakti Shopping Centre, Baba Bhoot Nath Ashram Kamakhya Dhaam, Faizabad Road, Lucknow and in reply to this para the review petitioner in para 1 of the written statement stated that the contents of para 1 of the plaint do not require any reply. Thus the review petitioner admitted the opposite party No. 2 as her landlord and now at this stage this point cannot be re-agitated again. 17. After hearing the learned counsel for the parties and going through the record of the case and the relevant law on the subject, one thing is clear that the power of review has a limited scope and the Court while exercising jurisdiction of review cannot act as an Appellate Court. The provision of Order 47 Rule 1 CPC clearly provides specific grounds upon which the court can exercise power of review. The provision makes it clear that the power of review may be exercised either where there is some mistake or error apparent on the face of the record or where there is a discovery of any new and important piece of evidence which was not in possession of party seeking review at the time when the order was passed or for any sufficient reason. 18. Although the Court has been given liberty to review its order for any sufficient reason but taking recourse all these words, the court cannot stretch the scope of the powers of review. 18. Although the Court has been given liberty to review its order for any sufficient reason but taking recourse all these words, the court cannot stretch the scope of the powers of review. It is a settled law that the power of review cannot be exercised on the ground that the decision was erroneous on merit that would be province of a court of appeal. The power of the appellate court distinct from the power of review. This Court cannot sit in appeal on its own order. It has also been held by the Apex Court that re-hearing of the matter is not permissible in law while exercising the power of review. The power of review is an exception to the general rule that once the judgment is signed and pronounced, it should not be altered. This view has been taken by the Hon'ble Supreme Court in the case of Inderchand Jain v. Motilal reported in (2009) 14 SCC 663 . It is also a settled law that the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Lily Thomas v. Union of India reported in (2000) 6 SCC 224 . The review petitioner if feels dis-satisfied or aggrieved by the judgment and order passed in the writ petition, there is an adequate and efficacious remedy to approach the higher Court instead of seeking review of the judgment on flimsy ground. 19. On a careful consideration on the submissions made on behalf of the parties and the material on record, I do not find any obvious reason to disturb the finality attained by the order passed in the writ petition. As there is no mistake or error apparent on the face of record or any materiel on record, which was raised, there is no sufficient ground to interfere with the order passed in writ petition. There is also no misconception on the fact or the law on the part of the Court while deciding the writ petition. 20. In view of the above, the review petition being devoid of merit is liable to be dismissed and is hereby dismissed.