Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 219 (JHR)

Alfons Sushil Minz v. Kinu Oraon

2016-01-28

AMITAV K.GUPTA

body2016
ORDER : This review application has been preferred under Order 47 Rule 1 of Civil Procedure Code against the order dated 11.03.2010 of Hon’ble Single Judge in Misc. Appeal no. 210 of 2007. 2. Learned counsel for the petitioner has argued that the Supreme Court in the case of Board of Control for Cricket in India Vs. Netaji Cricket Club reported in (2005) SCC 741 has held 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 in the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 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 therefore, 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 is wide enough to include a misconception of fact or law by Court or even an advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”, (The act of court shall prejudice no party). Placing reliance on the aforesaid ratio, learned counsel has submitted that in the judgment dated 25.04.2007 in Title Appeal no. 35 of 2005, the Additional Judicial Commissioner, Ranchi, while remanding the case to the Trial Court has set aside the judgment but has not set aside the decree. It is contended that Trial Court shall again pass a fresh judgment. It is contended that accordingly another decree will be argued which will give rise to two decrees and the lower appellate court has committed a mistake in not setting aside the earlier decree, which is alien to law and this error has been allowed to subsist by the impugned order. It is submitted that in Order 41 Rule 23-A & 25 of C.P.C., the words used is decree, and it is the decree which has to be set aside, as appeal is preferred against the decree. It is submitted that in Order 41 Rule 23-A & 25 of C.P.C., the words used is decree, and it is the decree which has to be set aside, as appeal is preferred against the decree. The next limb of argument is that the lower appellate court has failed to appreciate the provisions of Order 41 Rule 23-A and Order 41 Rule 25. That the appellate court has observed that the matter is remitted under Order 41 Rule 23-A of C.P.C., to decide the suit afresh after allowing both the sides to lead their evidence and at the same time it directed the Trial Court to give fresh findings on two issues, namely (i) whether the suit is not bad for non-joinder of necessary party and (ii) whether the L.T.I. of Daud Oraon (defendant no. 1), executant of registered sale-deed no. 11102 dated 13.11.1990 (Ext.1) in favour of plaintiff-petitioner is genuine by affording both parties to adduce fresh evidence on this point. It is contended that it is settled law that if the appellate court wants the Trial Court to return its findings, either directing it to receive further fresh evidence or without it, on any issues so framed by it (the Appellate Court), the judgment and decree of the Trial Court is not disturbed for the present, the record is kept pending with the Appellate Court, and it directs the Trial Court to return its verdict on the referred issues in terms of Order 41 Rule 25 C.P.C. It would be evident that in the instant case, the Appellate Court has passed an order intermingling the provisions of Rule 23-A and Rule 25 which is a grave error in law, and by dismissing the Miscellaneous Appeal, the Hon’ble Judge by the impugned order, has allowed such error to persist which calls for review to prevent miscarriage of justice. Thirdly, it has been argued that the Lower Appellate Court while remitting the matter has observed and held that “However, I find that one John Horo, husband of the original defendant no. 3 Buhalan Horo is alive and he has deposed below as DW 5 but he has not been made party in the suit, rather the sons and one daughter of defendant no. 3 have been made party in the suit. Hence, the court below should frame and decide the issue accordingly”. 3 Buhalan Horo is alive and he has deposed below as DW 5 but he has not been made party in the suit, rather the sons and one daughter of defendant no. 3 have been made party in the suit. Hence, the court below should frame and decide the issue accordingly”. It is contended by the learned counsel that the observation and direction given by the learned lower appellate court is an error apparent on the face of the record as it would be reflected from the decree, wherein the name of John Horo is mentioned as defendant no. 3 and the sons and daughter of defendant no. 3 are party in the suit. That Defendant no. 3 had died sometime after passing of the decree in original suit, hence, he was not arrayed as a respondent in the Title Appeal. Thus, direction to frame and decide the issue with respect to non-joinder of necessary party is manifest error of record, which unfortunately, has been allowed to be perpetuated on account of dismissal of Misc. Appeal no. 210 of 2007 by Hon’ble Single Judge by the order under challenge. It is canvassed that earlier the Trial Court had rejected the petition filed by the defendants for comparison by expert the LT.I. of Daud Oraon (Vendor) in the plaintiff’s sale deed (Ext.1) and on the vendors permission, petition was filed under the C.N.T. Act (vide Ext. 3). Against the rejection order a writ application was filed by the defendants which was dismissed by the Writ Court by order dated 17.02.2005, in W.P.(C) no. 751 of 2005. That, since, the matter has attained finality on this point, hence, the direction by the lower appellate court for examination of L.T.I., by an expert is in the teeth of observation made by the Hon’ble Court in W.P.(C) no. 751 of 2005, and this aspect has not been appreciated by the Hon’ble Judge while dismissing the Miscellaneous Appeal. On the above grounds, it is urged that the order dated 11.03.2010 passed by the Hon’ble Single Judge is fit to be reviewed. 3. Per contra, Mr. P.P.N. Roy, learned senior counsel for the respondents has submitted that admittedly against the judgment of the Additional Judicial Commissioner, Ranchi, the petitioner had preferred Misc. Appeal no. 210 of 2007 under Order 43 Rule 1(u). The above grounds were taken and after considering the submissions, the said Misc. 3. Per contra, Mr. P.P.N. Roy, learned senior counsel for the respondents has submitted that admittedly against the judgment of the Additional Judicial Commissioner, Ranchi, the petitioner had preferred Misc. Appeal no. 210 of 2007 under Order 43 Rule 1(u). The above grounds were taken and after considering the submissions, the said Misc. Appeal was dismissed with the observation that “no error has been committed in the impugned order under appeal”. It is argued that the decree is a formal expression of the final order or judgment and has been defined in Section 2(2) of C.P.C., as well as under Order 45 Rule 1 and setting aside of the judgment would render the decree a nullity. Thus, the earlier decree has lost its force. It is only the judgment and decree passed by the Trial Court after remand which shall be recognized by law. It is submitted that under Section 107, the Appellate Court has the power to remand the case and the court below has remanded the case on the issues after setting aside the judgment, and the Lower Appellate Court has passed the order in terms of Order 41 Rule 23-A, and there is no ambiguity in the said order. It is further contended that John Horo was arrayed as a party, alongwith other sons and daughters on 23.09.2002, as defendant no. 3. However, he died after passing of the decree and was not arrayed as respondent in the appeal and direction of the Appellate Court to array John Horo is an oversight and it cannot be termed as error on the face of the record. 4. Heard. The application for review in terms of Order 47 Rule 1 of the Code is maintainable on the grounds namely; (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time, the decree was passed, (ii) mistake or error apparent on the face of the record and, (iii) for any other sufficient reason. In the instant review application, the petitioner has not sought review on the point of discovery of new matter or evidence rather has urged on the grounds that there is error of law and fact. In the instant review application, the petitioner has not sought review on the point of discovery of new matter or evidence rather has urged on the grounds that there is error of law and fact. It is not disputed that review can be allowed when the order suffers from an error apparent on the face of record and permitting the same to continue would lead to failure of justice. It is well settled that review cannot be permitted when it is an appeal in disguise and power of review is not to be exercised on the ground that the decision was erroneous on merits. There is no disagreement on the proposition that a party cannot be made to suffer on account of an act of the court, in terms of the maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man in administration of law and it does not preclude the reviewing court to consider any subsequent event. As per the submissions of the learned counsel for the petitioner it is evident that these grounds were relied upon by the petitioner in Miscellaneous Appeal no. 210 of 2007, and the Hon’ble Judge after appreciating and considering the submissions had dismissed the appeal by the order impugned herein. At this juncture, it is pertinent to refer to the decision of the Supreme Court in the case of K.A. Ansari Vs. Indian Airlines, Ltd., (2009) 2 SCC 164 ; wherein it has been held .........” it is trite that a party is not entitled to seek a review of a judgment merely for the purpose of rehearing and a fresh decision of the case. It needs little emphasis that when the proceedings stand terminated by final disposal of the writ petition, it is not open to the court to reopen the proceedings by means of miscellaneous application in respect of a matter which provides fresh cause of action .......” The petitioner has been given the liberty to lead further evidence and there is no cause of any prejudice being caused to the petitioner or miscarriage of justice. The petitioner cannot be allowed to reargue the same matter as it would amount to hearing the matter in the disguise of appeal as an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court on a point of fact or law. Thus, while exercising the power of review, this Court cannot sit in appeal over its judgment/decisions. The Hon’ble Apex Court in Meera Bhanja Vs. Nirmala Kumari Choudhury AIR 1995 SC 455 (1995) 1 SCC 170 , has also categorically held that the power of review is not to be confused with appellate power which enables the court to correct all manners of error. An error apparent on the face of the record must be an error which must strike one on mere looking at the record and would not require the court any long drawn process of reasoning on points where there may be conceivably two opinions. In the instant case, as it would be apparent, the learned Advocate for the petitioner has assailed the judgment by the first appellate court, i.e., the Court of the A.J.C., Ranchi. The merits and alleged shortcomings of the judgment of the first appellate court have been argued while the instant application is for review of the judgment passed by the learned Single Judge of this Court. In that view of the matter as well, the application has no merit. Further, the submissions of the learned counsel that the order has been passed in teeth of W.P.(C) no. 751of 2005 is not sustainable, as it would be evident from the aforesaid order that the writ application was dismissed and liberty given to the applicant to raise the points during appeal. Accordingly, the O.P./appellant, had raised all the points before the appellate court which after considering the same had remanded the matter to the court below for reconsideration of the issues after setting aside the judgment. Thus, setting aside of the judgment without setting aside the decree is not an error, as decree is just a formal expression of the judgment and once the judgment has been set aside, the decree becomes non-est in the eye of law. 5. Thus, setting aside of the judgment without setting aside the decree is not an error, as decree is just a formal expression of the judgment and once the judgment has been set aside, the decree becomes non-est in the eye of law. 5. It is also settled law that if the order once passed, the same cannot be entertained in review, until and unless, there is error apparent on the face of the record. 6. With the said observation, the review application is hereby dismissed as not maintainable. Application dismissed.