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2016 DIGILAW 2062 (HP)

Harpreet Singh v. Subhash Chand

2016-09-23

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of the present revision petition, the petitioners have prayed for setting aside of order dated 16.03.2007 passed by the Court of learned District Judge, Solan, Camp Court at Nalagarh, in Review Petition No. 48- NL/6 of 2006 in Civil Appeal No. 12/NL/13 of 2005/2003 titled Harpreet Singh and another Vs. Subhash Chand. 2. Brief facts necessary for the adjudication of the present revision petition are that respondent herein filed Civil Suit No. 250/1 of 1999 for permanent prohibitory injunction for restraining the petitioners herein from raising construction over the suit property measuring 209-25 Sq. Mtrs., comprised in Khasra No. 969/429, Khewat Khatauni No. 116/126 i.e. suit property, in the Court of learned Sub Judge Ist Class, Nalagarh, District Solan, which suit was decreed in favour of the plaintiff on 07.11.2002 therein i.e. present respondent in the following terms:- “In view of the above, the suit of the plaintiff is decreed for permanent prohibitory injunction from restraining the defendants from interfering with the suit land or wall constructed thereon with costs. Decree sheet be prepared accordingly and the file after its due completion be consigned to record room.” 3. Feeling aggrieved by the judgment and decree so passed by the Court of learned Sub Judge Ist Class, Nalagarh, District Solan, present petitioners filed an appeal in the Court of learned District Judge, Solan, i.e. Civil Appeal No. 12/NL/13 of 2005/2003. 4. Vide judgment and decree dated 16.12.2005, learned Appellate Court while dismissing the appeal, partly modified the judgment and decree passed by the Court of learned Sub Judge Ist Class, Nalagarh, District Solan, in the following terms:- “10. Therefore, for the reasons enumerated above, the findings of the learned trial court are sustainable in law and on facts, but the judgment and decree require to be modified to the extent of incorporating the area of the suit land which hitherto is missing from it which is 173.99 square metres. Final Order: 11. In view of my above discussion and conclusions, the appeal is dismissed and the judgment and decree of the trial court are affirmed with modification that the suit of the respondent/plaintiff is decreed and the appellants/defendants are restrained from causing any interference in the suit land measuring 173.99 square metres comprised in Khasra No. 969/429, Khewat Khatauni No. 116/126 situated in the area of Nalagarh town. Parties are left to bear their own costs. Decree be drawn accordingly. The record of the trial court be sent back with a copy of this judgment. File be consigned to records after due completion.” 5. Being dissatisfied with the judgment and decree so passed by learned Appellate Court, present petitioners filed a Regular Second Appeal in this Court i.e. RSA No. 102 of 2006, which was dismissed on 22.03.2006 in following terms: “The grievance of the appellant in this case is that though the learned first Appellate has modified the decree of the learned trial court, whereby he found the plaintiff to the owner in possession to the extent of 173.99 square metres comprised in Khasra No. 969/429, Khewat Khatauni No. 116/126 situate in the area of Nalagarh town. However, the learned first Appellate Court has not specified, that which part of Khasra No. 969/429 comprises 173.99 square metres is in the ownership and possession of the plaintiff. The remedy available with the appellants-defendants to file a review application before the learned first Appellate Court and not by way of this second appeal. This second appeal is mislaid and is dismissed. It is directed that if a review application is filed by the appellants, the first Appellate Court shall decide the same expeditiously within a period of fours weeks of filing of such review application and specify the area which is in possession of the plaintiff and defendants respectively in Khasra No. 969/429 Khewat Khatauni No. 116/126 measures 173.99 square metres. The appeal is disposed of in the terms indicated above.” 6. Accordingly, petitioners filed a review petition before the Court of learned District Judge, Solan and prayed for the following relief in the review petition:- “It is, therefore, prayed that the impugned Judgment & Decree dated 07.11.2002, passed by the Ld. Trial Court in C. Suit No. 250/1 of 1999, may kindly be reversed and set aside and the suit of the respondent/plaintiff may kindly be dismissed with costs, by way of accepting this review petition in favour of the petitioners/appellants/defendants and against the respondent/plaintiff with costs, after restoring the original appellate file and after requisition of the case of the Ld. Trial Court, in the interest of justice. 7. Trial Court, in the interest of justice. 7. Learned Appellate Court vide order dated 16.03.2007 dismissed the review petition so filed by the present petitioners by holding that the grounds which were taken by the petitioners for review were in fact grounds challenging the judgment and decree passed by learned trial Court on merit and no ground in fact was taken in the review petition for reviewing of judgment and decree passed by learned Appellate Court. It was held by learned Appellate Court that there was no mention in the review petition that the judgment and decree passed by learned Appellate Court was suffering from any error apparent on the face of record and review was necessitated on account of discovery of new facts, on point of law as well as point of facts, subsequent amendment of law or judgment of Hon’ble Supreme Court or on account of erroneous decision. Learned Appellate Court further held that whatsoever was stated in the grounds of review petition were averments against the judgment and decree passed by learned trial Court and not averments as to in what manner the judgment and decree passed by learned Appellate Court was wrong. Learned Appellate Court further held that the decree in favour of the plaintiff had been passed on the basis of the plaintiff having purchased 173.99 Sq. Mtrs. of land comprised in Khasra No. 969/429 which as per sale deed executed had earlier been represented by Khasra No. 311/131 Khata Khatauni No.1 min/1 and accordingly, it was held by learned Appellate Court that even otherwise the judgment and decree passed by learned Appellate Court did not suffer from any of the defects on which review was maintainable. Accordingly, the review petition was dismissed. 8. Feeling aggrieved by the rejection of the said review petition by learned Appellate Court, petitioners challenged the same by way of present revision petition under Section 115 of the Code of Civil Procedure. 9. Mr. Dinesh Bhanot, learned counsel appearing for the petitioners, has argued that order passed by learned Appellate Court dated 16.03.2007, vide which, review petition of the present petitioners was dismissed, is erroneous and not sustainable in the eyes of law as while dismissing the review petition filed by the present petitioners, learned Appellate Court lost site of the directions issued by this Court in RSA No. 102 of 2006 vide order dated 22.03.2006. Mr. Mr. Bhanot argued that it was incumbent upon learned Appellate Court to have had specified the area which was in possession of the plaintiff and defendants respectively in Khasra No. 969/429, Khewat Khatauni No. 116/126 measuring 173.99 Sq. Mtrs. According to Mr. Bhanot, by not doing so, learned Appellate Court had misdirected itself and on this account alone, the order impugned was liable to be set aside. No other point was urged. 10. On the other hand, Mr. Jeet Ram Poswal, learned counsel for the respondent, argued that there was no merit in the contention of learned counsel for the petitioners in view of the fact that learned Appellate Court had rightly dismissed the review petition so filed by the petitioners because besides their being no merit in the same even otherwise the grounds on which the review petition was filed were not available to the petitioners to file and maintain a review petition under Section 114 of the Code of Civil Procedure. According to Mr. Poswal, learned Appellate Court rightly held that there was no mention in the entire review petition as to what was the error apparent with the judgment and decree passed by learned Appellate Court. On this ground, it was urged by Mr. Poswal that there was no merit in the present petition and the same be dismissed. 11. I have heard learned counsel for the parties and have also perused the records of the case as well as the order passed by learned Appellate Court. 12. A perusal of the grounds of the review petition filed by the present petitioners after the dismissal of their regular second appeal reveals that in the said review petition, petitioners challenged the judgment and decree passed by learned trial Court dated 07.11.2002 passed in Civil Suit No. 250/1 of 1999, which in fact had attained finality by subsequent adjudication upon the same by learned Appellate Court as well as by this Court in a Regular Second Appeal. Not only this, there was not even a whisper in the said review petition as to what was error apparent on the face of record as far as the judgment and decree passed by learned Appellate Court was concerned, nor was there any averment or prayer in the same for specifying the area which was in possession of the plaintiff and defendants respectively in Khasra No. 969/429, Khewat Khatauni No. 116/126 measuring 173.99 Sq. Mtrs. 13. In this view of the matter, in my considered view, the review petition so filed by the petitioners was rightly dismissed by learned Appellate Court by holding that besides challenging the judgment and decree passed by learned trial Court there were no averments made in the review petition as to on what grounds the review of the judgment and decree passed by learned Appellate Court in Civil Appeal No. 12/NL/13 of 2005/2003 dated 16.12.2005, was being called for by the petitioners. The findings returned by learned Appellate Court while dismissing the review petition to the effect that in the review petition none of the grounds contemplated in Section 114 of the Code of Civil Procedure were made out, can also not be faulted it. The findings so returned by learned Appellate Court are borne out from the averments which were made in the review petition. 14. Even otherwise, it is settled law that the principle enunciated in Section 114 of the Civil Procedure Code read with Order 47 speaks of error apparent on the face of record. In Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal, AIR 1980 (SC) 2041 , it was held by the Hon’ble Supreme Court that review cannot be made in a routine procedure unless the Court is satisfied that manifest error, apparent on the face of it, results in miscarriage of justice or results in undermining the soundness of that judgment. Thus, the scope of review is very limited when there is error apparent on the face of record. 15. Therefore, in my considered view, there is no infirmity with the order passed by learned Appellate Court in dismissing the review petition so filed by the petitioners and the order under challenge does not suffer from any jurisdictional error nor it can be said that learned Appellate Court either did not exercise jurisdiction vested in it or exercised jurisdiction vested in it with material irregularity. 16. 16. Therefore, as there is no merit in the present petition, the same is dismissed with costs. Pending miscellaneous applications, if any, also stand disposed of.