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2014 DIGILAW 99 (MP)

Shilpa Suryavanshi v. Rambabu Agrawal

2014-01-17

M.K.MUDGAL, SHEEL NAGU

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ORDER Mudgal, J. -- 1. By this order the review petitions bearing No.202 of 2012 and 446 of 2013 arising out of the order dated 12.3.2012 passed by this Court in Second Appeal No. 493 of 2007 are being disposed of simultaneously. 2. The Review petition No.202 of 2012 has been filed by Smt. Shilpa Suryavanshi widow of the deceased appellant Shivajirao Suryavanshi who filed a Civil Suit No.91-A of 2004 for declaration of title, permanent injunction and for declaration of the decree dated 29.7.2002 passed in Civil Suit No.20A of 1983 being null and void in respect of House No.41/364 situated at Shinde Ki Goth, Huzrat Road, Lashker, Gwalior. The said suit was dismissed vide judgment dated 7.11.2006 by the Court of VIIIth Civil Judge Class 1, Gwalior against which, the plaintiff filed First Appeal No.32A of 2006 which was dismissed vide judgment dated 19.5.2007 by the Court of Vith Additional District Judge, Gwalior against which, Second Appeal No.493 of 2007 was filed by plaintiff Shivaji Rao who died during pendency of the appeal. His wife Shilpa Suryavanshi was substituted as his legal representative. The said appeal was dismissed vide the impugned order dated 12.3.2012. 3. The R.P.No.446 of 2013 has been filed by the defendants No.5 to 9 for correction in the impugned order in respect of the date of the sale deed wrongly indicated as 1.2.1963 instead of 9.9.1963. 4. The facts of the case in brief of the plaint are that vide registered sale deed dated 15.1.1948 Ex.P/1 the disputed house was purchased by Vaman Rao who was father of the plaintiff and defendant No.1 Babu Rao. After death of Vamanrao, his legal heirs i.e. plaintiff Shivaji Rao, defendant No.1 Babu Rao both being sons, sister and widow became co-owners of the said house. However, the defendant No.1 Babu Rao unauthorizedly contracted to sell the disputed house vide agreement dated 18.4.1980 to Smt. Pushplata alias Pushpa Devi whereas, the plaintiff has claimed preferential right to purchase the property as the said house is the property of joint Hindu family and he has also averred that he is a co-owner of the said house. A decree for performance of the said contract was passed in favour of Smt. Pushplata in Civil Suit No.20A of 1983 by the Court of Special Judge Additional District Judge. A decree for performance of the said contract was passed in favour of Smt. Pushplata in Civil Suit No.20A of 1983 by the Court of Special Judge Additional District Judge. The said decree is not binding on the plaintiff as he was not party to the suit. The defendants No.5 to 9 are the legal heirs of Smt. Pushplata. They have no right to get the decree executed against the plaintiff. Further, the defendants No.1 to 5 have no right to get possession of the suit house on the basis of the decree passed in their favour. Therefore, the suit was filed for declaration of title, permanent injunction and for declaration of the decree being null and void. 5. The defendants No.5 to 9 filed written statement stating that they are entitled to get the decree executed in their favour of the disputed house. Within the knowledge of plaintiff, the sale deed dated 9.9.1963 Ex.D/1 regarding the part of this house was executed by Babu Rao in favour of Nandlal Haswani and on 1.2.1963 in favour of Gopal Swaroop Pathak in the presence of the plaintiff who signed the document as a witness. 6. On the basis of the sale-deed, names of the purchasers have been recorded in the revenue papers and so the plaintiff has no right to the said house. Besides it, the decree dated 29.7.2002 is binding on the plaintiff. However, the plaintiff is residing in the disputed house with the permission of the Babu Rao, but since the partition has already taken place in between the plaintiff and Babu Rao, hence, the plaintiff has no share in the suit house. 7. The learned trial Court considering the pleadings of the parties and evidence adduced by them, held that the plaintiff was not coowner of the house and dismissed the suit vide judgment dated 7.11.2006. The findings of learned trial Court were affirmed by learned lower appellate Court as stated earlier. 8. The learned counsel Shri D.D.Bansal submitted that the Hon’ble High Court has overlooked the contents of the sale deed Ex.D/1 as well as the date 9.9.1963 too owing to which, the facts mentioned in the impugned order are wrongly represented. This mistake/error is apparent on the face of record as the actual date of sale-deed Ex.D/1 is 9.9.1963 instead of 1.1.1963. This mistake/error is apparent on the face of record as the actual date of sale-deed Ex.D/1 is 9.9.1963 instead of 1.1.1963. At the same time, the facts stated in the order are incorrect as mentioned containing the fact that property sold has been fallen to the share of Babu Rao in the partition between the parties. The counsel further submitted that if the said contents had not been taken into account by mistake, the result might have been different. Thus, the error on the face of record ought to be rectified by review only. The learned counsel placing reliance on the judgment in S. Bhagirathi Ammal v. Palani Roman Catholic Mission (2009)10 SCC 464 has further put forth that the order in question has to be setaside and appeal be restored for further hearing. The counsel made another argument that the Review petition No.446 of 2013 filed by the Rambabu Agrawal and others deserve to be dismissed since it was not typographical error in the impugned order. 9. The learned Senior counsel Shri Mishra opposing the submissions has submitted that the error of the date of sale-deed dated 1.2.1963 instead of 9.9.1963 is simply a lapse of typing and contents averred in the order are not adverse to the record. Besides it, the petitioner Smt. Shilpa Suryavanshi had filed S.L.P before the Supreme Court which had been rejected vide order dated 20.1.2013 so the R.P.No.206 of 2012 filed by her is not maintainable. The learned counsel placing reliance upon the judgment in the case of Mohammad Shafi v. Abdul Wahid 2012(1) JLJ 187 = 2011 (4) MPLJ 657 has urged that the review petition filed by Smt. Shilpa Suryavanshi be dismissed and review petition filed by Ram Babu Agrawal and others be allowed and correction regarding said date 9.9.1963 instead of 1.2.1963 in the impugned order be made as prayed by the petitioner. 10. Heard the arguments of both the parties. 11. We have considered the arguments. 12. The contention of learned senior counsel Shri Mishra that the S.L.P. Filed by Smt. Shilpa Suryavnashi was dismissed by apex Court owing to which, the review petition filed by her being not maintainable does not appear to be acceptable as the copy of the said order was placed before the Court. 11. We have considered the arguments. 12. The contention of learned senior counsel Shri Mishra that the S.L.P. Filed by Smt. Shilpa Suryavnashi was dismissed by apex Court owing to which, the review petition filed by her being not maintainable does not appear to be acceptable as the copy of the said order was placed before the Court. On perusal of it, it becomes clear that the S.L.P.No.(S) 21438 of 2012 was dismissed before registration and so there was no basis for adjudication on merits before the apex Court in this case. The rejection of the SLP before registration does not affect the maintainability of the review petition filed by Smt. Shilpa Suryavanshi. 13. The scope of the review has been discussed by the apex Court in para 11 of the judgment in S. Bhagirathi Ammal v. Palani Roman Catholic Mission (2009)10 SCC Page 464 (supra) which follows as below : 11. Since we have already narrated the case of both the parties in the paragraphs supra, there is no need to traverse the same once again. Before considering the rival claims made by both the parties, it is useful to refer the provisions under order 47 rule 1 CPC relating to review which read as under : “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 of 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 appellant, 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.” A reading of the above provision makes it clear that review is permissible (a) from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the face of the record or is a palpable wrong; (d) any other sufficient reason. If any of the conditions satisfy, the party may apply for a review of the judgment or order of the Court which passed the decree or order. The provision also makes it clear that 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”. 14. On perusal of the impugned order, it becomes clear that the date 1.2.1963 mentioned is not only incorrect but the aforesaid contents of the sale-deed Ex.D/1 as stated earlier are also improper as in the sale deed Ex.D/1 dated 9.9.1963, it has not been mentioned by the vendor Babu Rao that the house which was sold by him was given to him in the partition to him and his family members i.e. he got the said house in partition to his share. In view of the aforesaid facts, it is obvious here that the aforesaid error is apparent on the face of the record, so it ought to be rectified by review as the findings of the impugned order are based on the aforesaid facts. 15. In view of the aforesaid facts, it is obvious here that the aforesaid error is apparent on the face of the record, so it ought to be rectified by review as the findings of the impugned order are based on the aforesaid facts. 15. Considering the aforesaid facts and the Supreme Court’s judgment, the Review Petition No.202 of 2012 filed by Smt. Shilpa Suryavanshi deserves to be allowed. The prayer made by Ram Babu Agrawal and others in R.P.No.446 of 2013 is not acceptable as the date 1.2.1963 is not typing mistake only. 16. Therefore, allowing the Review petition No.202 of 2012, the impugned order dated 12.3.2012 passed by this Court is hereby setaside. Consequently, the Second Appeal No.493 of 2007 is hereby restored for hearing on merit. 17. Resultantly, the R.P.No.446 of 2013 filed by Ram Babu Agrawal and others is hereby dismissed. 19. The Registry is directed to restore the Second Appeal No.493 of 2007 for final hearing. A copy of this order be placed in the record of R.P.No.446 of 2013. 20. No order as to the costs.