Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1166 (GAU)

RENU DEVI KUCHERIA (OSWAL) v. TRAVINI DEVI TEWARI

2017-08-25

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. S.P. Roy, the learned counsel for the Petitioners and Mr. B.K. Jain, the learned counsel for the Respondent. 2. By filing this application under the provisions of Section 114 read with Order XLVII Rule 1 and Section 151 of the Code of Civil Procedure (CPC for short), the applicant has prayed for review of the judgment and order dated 10.03.2016 passed by this Court in CRP No. 96/2015. 3. Bhawri Devi Tewari and Bhagwati Devi Tewari (since deceased) were the plaintiffs in T.S. No. 87 of 1977. The said suit was renumbered as T.S. No. 16 of 1983. Chouthmal Kucheria was the original defendant in the suit. The plaintiffs sought for eviction of the defendants from the suit house described in Schedule of the plaint. The suit house was a two storied house and premises, including godowns, kitchen and latrine situated at SRCB Road, Fancy Bazar, Guwahati. The monthly rent for the said premises was Rs.400/- per month. During the long drawn suit, the sole defendant had died and in his place “Jaichan Lal Kucheria, son of Chouthmal Kucheria, for and on behalf of Hindu Undivided Family (HUF for short) Firm M/s. Chouthmal Jaichan Lal” was substituted. On an application made by Smt. Renu Devi Kucheria, she was impleaded as Defendant No.2 vide order dated 14.10.1985. By virtue of order dated 04.02.2009, passed by this Court in CRP No. 279/2008, Vineet Kucheria was impleaded as Defendant No.1 as LRs of Jaichan Lal Kucheria. During the pendency of the suit, the original plaintiffs had also died and present respondents No. 1 to 5, namely, Travini Devi Tewari, Mahabir Prasad Tewari, Samswarup Tewari, Jai Prakash Tewari and Manoj Kumar Tewari were substituted as LRs of Plaintiff No.1- Bhawri Devi Tewari and Respondents No. 6 to 8, namely, Arjun Tewari, Shobha Tewari and Manju Tewari were substituted as LRs of Plaintiff No.2- Bhagwati Devi Tewari. Owing to enlargement of pecuniary jurisdiction, the suit was transferred to the Court of learned Munsiff No.1, Guwahati, where it was renumbered as T.S. No. 231/2006. 4. In course of trial, the learned trial court framed as many as 10 issues. The respondents- Plaintiffs examined 4 witnesses and exhibited 8 documents. The petitioners- defendants examined 2 witnesses. The said TS No. 231/2006 was allowed vide judgment and decree dated 19.11.2004 passed by the learned Court of Munsiff No.1, Guwahati. 4. In course of trial, the learned trial court framed as many as 10 issues. The respondents- Plaintiffs examined 4 witnesses and exhibited 8 documents. The petitioners- defendants examined 2 witnesses. The said TS No. 231/2006 was allowed vide judgment and decree dated 19.11.2004 passed by the learned Court of Munsiff No.1, Guwahati. Aggrieved by the said judgment and decree, the petitioners filed T.A. No. 24/2014. The said appeal was dismissed by first appellate judgment and decree dated 12.12.2014 passed by the learned Civil Judge No.2, Kamrup (M), Guwahati. The concurrent findings recorded by both the learned courts below was challenged by the petitioners before this Court by filing a revision under Section 115 CPC, which was numbered as CRP No. 96/2015. The said revision was heard on 23.02.2016 and upon hearing the learned counsel for the parties, this Court had dismissed the said CRP No. 96/2015 by judgment dated 10.03.2006. 5. There was a delay of 116 days in filing this review application. By order dated 04.08.2017, this Court had directed the matter to be listed on 17.08.2017, requesting the learned counsel for both sides to be ready to argue the Misc. Case for condoning the delay and also in this Review Application. Accordingly, both the matte relating to MC 6/2017 as well as this un-numbered Review Application has been listed and heard. The delay of 116 days in filing this review application has been condoned for reasons as assigned in MC 6/2017. 6. The learned counsel for the Petitioners has made a lengthy and elaborate argument on the present review application. His stress were on the following points which were stated in paragraph 26 of the present application; they are:- i. Question as to maintainability of the suit in view specific plea taken by the defendant No. 1 that Sri Mahabir Prasad Tewari had no authority to file the suit and depose on behalf of the original plaintiffs. ii. Doctrine of Suspension and Abatement of Rent; iii. Status of the defendant No. 1 whether same is an HUF or not, if not than the suit was bad for non-joinder of necessary parties, iv. Status of plaintiff’s property being joint or separate in view of applications filed by the respondent Nos. 7 & 8, v. If defendant No. 1 is an HUF, then Renu Devi Kucheria is not a necessary party, vi. Status of plaintiff’s property being joint or separate in view of applications filed by the respondent Nos. 7 & 8, v. If defendant No. 1 is an HUF, then Renu Devi Kucheria is not a necessary party, vi. No order on petition No. 5218/81 for striking out the plaint, which is apparent on perusal of Order dated 07.06.1982. 7. The learned counsel for the Petitioners has submitted that during the course of trial, the respondents No.1 to 5 and Smt. Bhagwati Devi Tewari had approached this court by filing CRP 279/2008 and this Court by order dated 04.02.2009, inter-alia, held as follows:- “… According to Mr. Kalita since there is no H.U.F. existing, there is no question of substituting the names of Vineet Kucheria or Vikash Kucheria. The dispute, as to whether, the H.U.F. existed after the death of the original karta in the year 1984 cannot be decided at this stage in the present proceeding. According to the plaintiff, since the H.U.F. exists after the death of the original karta, his eldest son was substituted in the year 1984 and the present application has been filed for substitution of the name of Vineet Kucheria after his death. That being the position the prayer for substitution of Vineet Kucheria in place of Jaichan Lal Kucheria is allowed keeping the question as to whether the H.U.F. exists or not open, to be decided by the learned court below subject to the pleadings and evidence to be adduced by the parties.” 8. Thereafter, the learned trial court by an order dated 19.09.2009, observed that the question as to whether the HUF exists or not is left open by this Court. In this regard, it is submitted that this question was ultimately never decided by the learned trial court or the appellate court or by this court and, as such, there exist a good ground for review. 9. It is submitted that the original defendant, namely, Chouthmal Kucheria had married twice. Through his first wife, he had two daughters and one son, namely, Amrao Kucheria, Premlata Kucheria and Jaichan Lal Kucheria. Out of three children, Amrao Kucheria had died leaving behind two daughters and two sons, who were left out from being impleaded. 9. It is submitted that the original defendant, namely, Chouthmal Kucheria had married twice. Through his first wife, he had two daughters and one son, namely, Amrao Kucheria, Premlata Kucheria and Jaichan Lal Kucheria. Out of three children, Amrao Kucheria had died leaving behind two daughters and two sons, who were left out from being impleaded. Out of second marriage, which was solemnized with Renu Devi Kucheria after the death of first wife, Chouthmal Kucheria had three children, namely, Vineet Kucheria, Vivek Kucheria and Rachna Kucheria and out of the three, Vivek Kucheria and Rachna Kucheria were left out from being impleaded. It is also submitted that Jaichan Lal Kucheria died on 23.08.2007, leaving behind his wife, one daughter and two sons, and none of them were impleaded. Hence, the suit, appeal and revision were decided in the absence of all the legal representatives (LRs for short) of Chouthmal Kucheria. Therefore, there exists a good ground for review. 10. By referring to the Power of Attorney, Ext.2 and Ext.9, the learned counsel for the petitioners has submitted that the said Power of Attorney (Ext.2) was not in respect of this suit and, as such, the same was non-est in the eye of law and therefore, it must be treated as if there was no power of attorney by the plaintiffs in favour of Mahabir Prasad Tewari and, as such, the evidence of plaintiffs witnesses ought to have been discarded. 11. It is further submitted that originally, the Power of Attorney (Ext.9) was not exhibited. Therefore, the respondents herein had attempted to exhibit the said Power of Attorney, which was allowed by the learned Trial Court. The matter was agitated by the petitioners before this Court by filing CRP No. 94/2011. This Court by judgment and order dated 06.09.2011 had disallowed the said additional evidence on the ground that it was a highly belated application, by allowing the revision. However, later on to overcome the said order passed by this Court, a fraud was played upon the Court. It is submitted that at a later stage, vide order dated 15.03.2013, the learned trial court passed an order to frame issues and fixed the case for framing issues on 20.03.2013. On the date fixed, i.e. on 20.03.2013, the learned trial court framed the issues and fixed the suit for plaintiff’s evidence. It is submitted that at a later stage, vide order dated 15.03.2013, the learned trial court passed an order to frame issues and fixed the case for framing issues on 20.03.2013. On the date fixed, i.e. on 20.03.2013, the learned trial court framed the issues and fixed the suit for plaintiff’s evidence. Taking a chance, the respondents again filed the evidence- on- affidavit of Sri Mahabir Prasad Tewari and the said witness introduced the said Power of Attorney (Ext.9), which was disallowed by this Court by order dated 06.09.2011 in CRP No. 94/2011. The learned counsel for the petitioner has read out both the evidence-on- affidavits of Sri Mahabir Prasad Tewari to demonstrate that both the affidavits were carbon copies and, as such, the acceptance of additional evidence in respect of the Power of Attorney (Ext.9), which was disallowed by this Court amounted to perpetration of fraud upon the court. It is submitted that even if the petitioners did not point it out at that time, the trial court cannot remain as a silent spectator and could not have allowed the order passed by this court in CRP No. 94/2011 to be violated. It is submitted that this is a good ground for review. In support of his argument, the learned Counsel for the petitioners has relied on the case of Rasiklal Manikchand Dhariwal & Anr. Vs. M.S.S. Food Products, (2012) 2 SCC 196 – on the point that no extra opportunity can be given to a party to prove his case. Reliance is also placed on the cases of (i) Vadiraj Naggappa Vernekar (Dead) through LRs. Vs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 (para 25 to 30) – on the point of power of the court under Order XVIII Rule 17 CPC to recall and re-examine witness, and (ii) Vidhyadhar Vs. Manikrao & Ors., (1999) 3 SCC 573 (para 29 to 32) – on the point of power to examine a witness under Order XVI Rule 1(3) and 1-A CPC. 12. It is submitted that the suit premises for which the plaint had undergone a change. It is submitted that during the pendency of the suit, except for a ‘gaddi’ (Hindi term for trading office) the petitioners were dispossessed from the rest of the suit premises. 12. It is submitted that the suit premises for which the plaint had undergone a change. It is submitted that during the pendency of the suit, except for a ‘gaddi’ (Hindi term for trading office) the petitioners were dispossessed from the rest of the suit premises. To show the said fact, the learned counsel for the petitioners has referred to the various passages from the evidence and cross-examination of the witnesses. In this connection, the learned counsel for the petitioners has made three pronged attack:- a. By referring to ‘house’ as defined in Section 2(b) of the Assam Urban Areas Rent Control Act, 1972 it is submitted that if during the pendency of the suit, or otherwise, the tenanted premises does not remain the same, it gives rise to a new contract of tenancy and therefore, the previous suit cannot succeed as there was no consequent amendment to the schedule of the plaint. Therefore, without amending the schedule, no decree for eviction could have been passed against the petitioners. It is submitted that owing to change in description of the tenanted premises, the respondents could not have been permitted to relied on the earlier agreement and therefore, unless there is a fresh cause of action, the decree is liable to be set aside and, as such, this was a good ground to main a review application. b. The other point of attack is that once the petitioner is dispossessed from a major part of the tenanted premises, the said eviction was illegal and moreover, the doctrine of suspension and abatement of rent would be attracted and the petitioners could not have been declared to be a defaulter in payment of the agreed rent, which was for the entire suit premises. In this regard, the learned Counsel for the petitioners has relied on the following cases:- i. Jatindra Kumar Seal Vs. Raimohan Rai, AIR 1961 Assam 52. In this case, this Court had held as follows:- “The eviction of the tenant, whether from a part of the demised premises or from the whole, entails suspension of the entire rent so long as he eviction lasts, irrespective of the fact that the tenant maybe in possession of the reside. It is not necessary for the Court in such cases to find out from how much land the tenant had been dispossessed. It is not necessary for the Court in such cases to find out from how much land the tenant had been dispossessed. If it is found that he has been dispossessed from some land, the test to be applied is whether there has been an actual physical expulsion with the intention of depriving the tenant of the enjoyment of the demised premises or from a part thereof. Here, the finding shows that as a result of the plaintiffs keeping in logs in the room, great inconvenience has been caused to the defendant and he is unable to occupy the house freely. That being so, the decree of the learned Small Cause Court Judge cannot be maintained. The observation made by him that the defendant should try for removal of the logs and if he fails then alone he can considered himself to be dispossessed, is on the face of it, incorrect. As long as the logs are there, it has to be held on the findings that the defendant has been actually dispossessed and it is the duty of the plaintiff to remove the logs from the premises in question before he can be again entitled to recover rent from the defendant on the basis of the claim made by him. It is not that the rent was payable in respect of a particular portion of the house in question and, as such, the rent could be split up. It was the whole holding that had been let out to the defendant which he was entitled to occupy without any such obstruction or dispossession by the plaintiff. The act of the plaintiff in this case was clearly a tortuous act, as such, he cannot recover rent until the mischief is removed.” ii. Nilkantha Pati Vs. Kshitish Chandra Satpati, AIR 1951 Cal 338 . In this case, the Hon’ble Calcutta High Court has held as follows:- “28. A contract which is entered into between the landlord and the tenant should be held to be a sacred one and the Court is required to protect the weak and the poor from the high-handed, improper and illegal acts on the part of the rich and influential. In this case, the Hon’ble Calcutta High Court has held as follows:- “28. A contract which is entered into between the landlord and the tenant should be held to be a sacred one and the Court is required to protect the weak and the poor from the high-handed, improper and illegal acts on the part of the rich and influential. It is concurrently found in this case that the landlord had dispossessed the tenant from a portion of the tenancy only because he wanted to straighten out his boundary and the tenant was poor and had not the influence of the former. The mere is not an over-riding importance so as to dissuade the Court from applying the principles of justice, equity and good conscience if the Court finds that the act of the landlord was definitely a tortuous one. 29. Irrespective of the principles enunciated by the English Courts, we have no doubt, on the facts of the present case, that the landlord having dispossessed the tenant in a highhanded manner, is not entitled to claim any rent on the basis of the contract with the tenant, as the former had acted tortuously in not allowing the tenant to hold the lands peacefully. The decision referred to above (Ashutosh Roy v. Indu Bhusan Sen Gupta, 49 C.W.N. 470) also clearly indicates that where landlord acts tortuous it is for the Court to consider whether the rule of equity for a total suspension of rent should or not be applied. If and when the landlord chooses to put the tenant again in possession of the portion from which the latter had been dispossessed, he will be entitled to the rent and not till then.” c. The third point of attack was that when the petitioners were dispossessed from a part of the suit premises, they filed a petition, being Petition No. 5218/81 for striking out the plaint. The learned Assistant District Judge No.1, Guwahati, where the suit was pending then, had passed an order dated 07.06.1982 to the effect that the allegations of the petitioners- defendants would be considered at the time of hearing of the suit. However, the learned trial court did not follow its own orders while deciding the suit. Therefore, the judgment and decree was vitiated. 13. However, the learned trial court did not follow its own orders while deciding the suit. Therefore, the judgment and decree was vitiated. 13. The learned counsel for the petitioner has referred to the order dated 26.03.2012 passed by the learned trial court in connection with Misc. (J) Case No. 1023/11 in TS No. 231/06, by which the respondent- plaintiff No.2 was not permitted to sign the plaint. It is submitted that as the plaintiff No.2 is found to have not signed the plaint, the suit ought not to have been decreed. Hence, this was also a good ground for review. 14. It is submitted that respondent No. 7 and Respondent No.8 had filed two separate petitions in TA No. 24/2014, praying for striking out their names on the ground that they are married daughters and have relinquished their claim and desire that their brother, i.e. Respondent No.6 may inherit all the properties. However, no order was passed on the said petitions, which raises a doubt as to who are the real owners of the suit premises and without that determination, the appeal ought not to have been dismissed. According to the learned counsel for the petitioners, this was a good ground for review. 15. The learned Counsel for the petitioners has relied on the following cases in support of his argument:- i. State of Manipur & Ors. Vs. A.K. Cycle and Allied Centre (M/s.) & Ors., (2015) 1 GLT 649 (DB) (para 6 to 12) – on the point that Court should act ex debito justitiae as may be necessary in the interest of justice or necessary to do so for the sake of justice by exercising the power of review. ii. Inderjit Singh Grewal Vs. State of Punjab & Anr., (2011) 12 SCC 588 (para 17) – on the point that order obtained by fraud cannot be sustained. iii. Meghmala & Ors. Vs. G. Narasimha Reddy & Ors., (2010) 8 SCC 383 (para 33) – on the point that fraud vitiates everything. iv. O.N. Mohindroo Vs. The District Judge, Delhi & Ors., (1971) 3 SCC 5 (FB) (para 22, 37 and 39) – on the point of power of review when fraud is involved. v. Sajjan Singh Vs. State of Rajasthan, AIR 1965 SC 845 (Constitution Bench) (para 21) – on the point of power of review can be exercised if there is infirmity in the previous decision. vi. v. Sajjan Singh Vs. State of Rajasthan, AIR 1965 SC 845 (Constitution Bench) (para 21) – on the point of power of review can be exercised if there is infirmity in the previous decision. vi. Fateh Singh (Dead) through LRs Vs. Hari Chand & Ors., (2017) 5 SCC 175 – on the point that non-examination of person who collected rent was fatal. vii. Man Kaur Vs. Hartar Singh Sangha, (2010) 10 SCC 512 – on the point that adverse presumption is liable to be drawn if a party does not appear in the witness box and does not offer himself for cross- examination. 16. Although the review application contains various other averments, no other points were pressed or argued by the learned counsel for the petitioners. 17. The learned Counsel for the respondents has submitted that the petitioners have laid a huge stress to project as if the respondents have committed any fraud, but the allegations are false and exaggeration for the purpose of portraying the respondents wrongly. It is submitted that the true picture would emerge if the order dated 15.03.2013 (Annexure-24) and 20.03.2013 (Annexure-25) are read in its correct perspective. Then it would be revealed that on 15.03.2013, the case was partly heard. But then it was found that the issues had not been framed. Hence, the matter was adjourned on 15.03.2013. On the next date, i.e. on 20.03.2013, the learned counsels for both sides submitted draft issues and, as such, issues were framed on 20.03.2013. Therefore, as per the practice followed under the Civil Procedure, the learned trial court had to give one opportunity to the parties to lead evidence on issues framed by the trial court. Hence, no infirmity or fraud was committed when by order dated 20.03.2013, the learned trial court after hearing both sides had framed the issues and fixed the suit for plaintiff’s evidence. Taking a chance, the respondents again filed the evidence- on- affidavit of Sri Mahabir Prasad Tewari and the said witness introduced the said Power of Attorney (Ext.9). It is stated that this was an adversarial litigation, where the petitioners were duly represented by their same learned counsels who had argued the matter which led this Court to pass order dated 06.09.2011 in CRP No. 94/2011. It is stated that this was an adversarial litigation, where the petitioners were duly represented by their same learned counsels who had argued the matter which led this Court to pass order dated 06.09.2011 in CRP No. 94/2011. It is further submitted that the framing of issues and examination of PWs were allowed by passing judicial order, which had remained unchallenged until now in three stages of the suit, appeal and revision. Therefore, there was no element of fraud present in the case and the argument is being advanced in a bad taste because nowhere it was stated in this review petition as to who had perpetrated fraud and, as such, the petitioners were not only alleging fraud on the respondents, but by making false, twisted, vague and reckless statements, the petitioners were also encompassing the Courts and its Hon'ble Presiding Officers of Courts at all the three stages of the suit as if they are also parties to the fraud. 18. Similarly, in respect of all other arguments advanced by the learned counsel for the petitioners, it is submitted that all these issues have been raised by the petitioners for the first time in this review application. None of the issues now raised were ever presented in course of trial, appeal and revision. It is further stated that in the suit which is being contested from the year 1977, there could be several orders passed by the trial court and in course of various rounds of revision before this Court, but it would not be possible for any court to either peruse all the previous orders while disposing of the suit, appeal or revision. Therefore, when the petitioners did not make any attempt to raise these issues in course of trial, first appeal and revision, it would amount to waiver and acquiescence and, as such, under the principles of estoppel, the petitioners are stopped from raising these issues for the first time in guise of a review application. Hence, the learned counsel for the respondents has prayed for dismissing this application for review. 19. This court has considered the rival submissions made by the learned counsels for both sides and perused the records of the CRP No. 96/15 as well as the present un-numbered review application. 20. Hence, the learned counsel for the respondents has prayed for dismissing this application for review. 19. This court has considered the rival submissions made by the learned counsels for both sides and perused the records of the CRP No. 96/15 as well as the present un-numbered review application. 20. Before venturing to evaluate the rival arguments of both sides, it would be required to first see that to what extent the power for review can be exercised. In the quest to understand this aspect of the matter, the provisions of Order XLVII Rule 1 is extracted below: “Order 47: REVIEW 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." 21. In the quest for appreciating the jurisdiction of court while entertaining a review application, this court has come across the following cases on the power of review:- i. Raja Prithi Chand Vs Sukhrai, AIR 1941 FC 1. ii. Patel Narshi Thakershi Vs Pradyumansinghji Arjun-singhji, (1971) 3 SCC 844 . iii. M/s Northern India Caterers (India) Vs Lt. Governor of Delhi, AIR 1980 SC 674 . iv. Col. Avtar Singh Sekhon Vs Union of India & Ors., AIR 1980 SC 2041 . v. S. Nagaraj & Ors Vs. State of Karnataka & Ors., 1993 Supp (4) SCC 595 vi. Meera Bhanja Vs. Nirmala Kumari, (1995) 1 SCC 170 . vii. Surjit Singh & Ors Vs. Union of India & Ors., (1997) 10 SCC 592 . viii. Lily Thomas & Ors Vs. Union of India & Ors., (2000) 6 SCC 224 . ix. v. S. Nagaraj & Ors Vs. State of Karnataka & Ors., 1993 Supp (4) SCC 595 vi. Meera Bhanja Vs. Nirmala Kumari, (1995) 1 SCC 170 . vii. Surjit Singh & Ors Vs. Union of India & Ors., (1997) 10 SCC 592 . viii. Lily Thomas & Ors Vs. Union of India & Ors., (2000) 6 SCC 224 . ix. Surendra Kumar Vakil Vs. Chief Executive Officer, MP., AIR 2004 SC 3088 . x. Board of Control for Cricket, India & Anr Vs. Netaji Cricket Club & Ors., AIR 2005 SC 592 . xi. Inderchand Jain (Dead) through LRS Vs. Motilal (dead) through LRS., (2009) 14 SCC 663 . xii. State Vs. Atul Chandra Das, (1995) 1 GLR 246. xiii. Ranjit Biswas Vs. Pabitra Narayan Choudhury, 1996 (2) GLT 92. xiv. Lalma-lsawn Vs. State of Manipur: 2000 (3) GLT 437. 22. Observations made in these cases: a. In the case of Raja Prithi Chand Vs Sukhrai (supra) it was held that the Federal Court will not sit as a Court of appeal from its own decisions, nor will it entertain applications to review for rehearing and also that an order once made is final. Nevertheless, in exceptional circumstances, an application for review can be entertained. The indulgence by way of review is granted mainly owning to the natural desire to prevent irremediable injustice being done by a Court of last resort as whereby some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard. b. In the case of Patel Narshi Thakershi (supra) it was held by the Hon’ble Supreme Court that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. c. In the case of M/s Northern India Caterers (India) (supra) it was held by the Hon’ble Supreme Court that a party is not entitled to seek a review of a judgment delivered by the Supreme Court merely for the purpose of a re-hearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final and departure from the principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. d. In the case of Col. Avtar Singh Sekhon (supra) it was held by the Hon’ble Supreme Court that review is not a routine procedure but an application for review could be entertained when there is material error manifest on the face of the earlier order resulting in miscarriage of justice. e. In the case of S. Nagaraj & Ors (supra), it was held by the Full Bench of Hon’ble Supreme Court that rectification of an order thus stems from the fundamental principles that justice is above all and it was also held that power for rectification/ review is exercised to remove the error and not for disturbing finality. f. In the case of Meera Bhanja Vs. Nirmala Kumari, (1995) 1 SCC 170 , it was held by the Hon’ble Supreme Court that the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order XLVII Rule 1 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has re-appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has re-appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. It was observed that even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order XLII Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, the appeal before the Hon’ble Supreme Court was allowed. g. In the case of Lily Thomas & Ors (supra), it was held by the Hon’ble Supreme Court that the power of review is not an inherent power. It must be conferred by law. A review is also not an appeal in disguise. It cannot be denied that the justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetuation shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. It was further held that the dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. h. In the case of Surendra Kumar Vakil and Ors. It was further held that the dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. h. In the case of Surendra Kumar Vakil and Ors. (supra) it was observed by the Hon’ble Supreme Court that it is not disputed at the Bar that the judgment in question was very much available before the Court when the appeal was argued and the judgment of Nagpur High Court was specifically referred to in the Note of written submissions made on behalf of respondent in the appeal and it was held that a point that has been heard and decided cannot form a ground for review even if assuming that the view taken in the judgment under review is erroneous. i. In the case of Board of Control for Cricket, India & Anr. (supra) it was held by the Hon’ble Supreme Court that application for review of the order on account of misconception of law and fact while passing the order is maintainable. In other words, judgment and order could be reviewed for misconception of law and fact by the Court while passing the order sought to be reviewed. Para 88, 89 and 90 is quoted below: "88. We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law, Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in S.114 of the Code in terms whereof it is empowered to make such order as it thinks fit. 89. Order 47, Rule 1 of the Code provides for filing an application for review. Such 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. 90. Such 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. 90. 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 O.47, R.1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit." j. In the case of Surjit Singh & Ors (supra) it was held by the Hon’ble Supreme Court that when a patent error is brought out to the notice of the Tribunal, the Tribunal is duty bound to correct with grace its mistake of law by way of review of its order or/directions. k. In the case of Inderchand Jain (supra) it was held by the Hon’ble Supreme Court that Section 114 of the Code of Civil Procedure provides for a substantive power of review by a civil Court and consequently by the appellate Courts. The words "subject as aforesaid" occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the Court but such limitations have been provided for in Order 47 of the Code. l. In the case of State of Assam & Ors. (supra) this Court had held that in case a review is by no means an appeal in disguise whereby a judgment is reheard and corrected. The scope of review was held to be very restricted. l. In the case of State of Assam & Ors. (supra) this Court had held that in case a review is by no means an appeal in disguise whereby a judgment is reheard and corrected. The scope of review was held to be very restricted. It was held that a judgment can be reviewed only if the applicant can establish that - (1) discovery of new and important evidence/matter which could not be produced at the time of hearing (2) error apparent on the face of the record and (3) for any other sufficient reason. It was further held that in appropriate case, court can exercise the power of review, but in a very restricted and limited manner and that the spirit of Order XVII CPC has to be followed as guideline to review a judgment/order passed by the High Court in its writ jurisdiction. m. In the case of Ranjit Biswas (supra) this Court had held that the expression "any other sufficient reasons" mentioned in Order XLVII Rule 1 CPC also extends to the grounds or/reasons on which the Court can entertain review petition for doing substantial justice. n. In the case of Lalma-lsawn (supra) this court had interpreted that the expression "any other sufficient reasons" mentioned in Order XLVII Rule 1, CPC and held that it included the reasons on which application for review could be entertained for doing substantial justice. 23. It is to be remembered that when the Hon'ble Supreme Court exercises its powers of review, it is doing so because in the case of the fact that it was the court of last resort and from the ratio of all the cases cited above, it would be apparent that the said Hon'ble Court was making an endeavour to correct the mistake that had crept in the order. The petitioners have not been able to demonstrate from any of the cases cited by him at the Bar that the High Court, which had heard a Civil Revision under Section 115 CPC, by entertaining a review is empowered to hear the revision afresh on points which have been left untouched in three stages of the case, i.e. trial of suit, first appeal and revision. None of the issues raised by the petitioners, appear to be mistake of fact or mistake or incorrect appreciation of law. 24. None of the issues raised by the petitioners, appear to be mistake of fact or mistake or incorrect appreciation of law. 24. It is also well settled that a review cannot be treated as an appeal in disguise to correct all and every error of facts. Moreover, this court is also required to remain cautious that power of revision under Section 115 CPC itself has its limitations and it cannot be exercised like appellate power as if the revisional court was also a court of facts. 25. Now coming to the points raised by the learned counsel for the petitioner, the first issue raised by the learned counsel for the petitioners is that fraud was perpetrated on court, resulting in allowing of the suit. a. On the perusal of the order dated 15.03.2013 (Annexure-24 of the review application), it appears that the suit was partly heard in the presence of the learned counsels for both sides. However, as the issues were not framed, the suit was adjourned on to 20.03.2013, when the learned counsels for both sides submitted draft issues and, as such, issues were framed on 20.03.2013. The suit was then deferred to 05.04.2013 for plaintiff’s evidence and on the said the evidence- on- affidavit of Sri Mahabir Prasad Tewari was submitted and the Power of Attorney was marked as Ext.9. b. The suit was heard on 19.11.2014. c. Thus, there was no fraud. The orders were passed by the learned trial court in the presence of the learned counsels for the parties and sufficient time had lapsed in each step, as such, it cannot be accepted that the learned trial court has shown any unnatural haste in passing the orders. The hearing of the suit took place about 11/2 years after Mahabir Prasad Tewari had submitted his evidence- on- affidavit. d. Therefore, if the petitioners fail to bring the order dated 06.09.2011 passed by this Court in CRP No. 94/2011, by no stretch of imagination, it is open for the petitioners to allege fraud. e. The procedural part of introducing Ext.9, being contrary to the decision of this Court in CRP 94/2011 could have been agitated in appeal and/or in the revision, being CRP 96/2015. f. This was not a case where the trial court had exercised its power to recall and re-examine witness. e. The procedural part of introducing Ext.9, being contrary to the decision of this Court in CRP 94/2011 could have been agitated in appeal and/or in the revision, being CRP 96/2015. f. This was not a case where the trial court had exercised its power to recall and re-examine witness. It was done mechanically pursuant to framing of issues, without any objection from the petitioners. Therefore, the case of Rasiklal Maniklal Dhariwal (supra), cited by the petitioner is distinguishable from the facts of the present case. The other cited case of Vadiraj Nagappa Vernekar (supra) was on the power of court to examine witness under Order XVI Rule 1(3) CPC, which is not the case in hand and, as such, this court does not find the said case applicable in the fact situation herein as no unlisted witness was sought to be examined. g. Therefore, instead of fraud, this court finds that the issue is vitiated by principles waiver, acquiescence and estoppel on part of the petitioners at all three stages, i.e. suit, appeal and revision. 26. The learned Counsel for the petitioner had only pressed paragraph 26 as the ground for review. The said grounds are answered as under:- a. The other issue is that of maintainability of suit on the ground that Mahabir Prasad Tewa ri had no authority to file and depose on behalf of original plaintiffs. This issue was also not raised in trial, appeal and revision. Moreover, it is seen that the said person is the substituted LRs of the Plaintiff No.1. b. The other issue is about doctrine of suspension and abatement of rent. In this context, it must be referred that in respect of urban areas of the State of Assam, the rent law is governed by the provisions of the Assam Urban Areas Rent Control Act, 1972, which provides for power of the court to fix “fair rent” and “standard rent”. Therefore, when there is a specific provisions of law in this regard, the trial court, in the absence of any issue on the point and without following the procedure for calculating the “fair rent” and “standard rent”, which is unique to the said 1972 Act, cannot devise its own procedure to suspend or abate rent as envisaged by the “Doctrine of Suspension and Abatement of Rent”, pressed by the learned Counsel for the petitioner for the first time at this stage. The decision of this Court in the case of Jatindra Kumar Seal Vs. Raimohan Rai (supra) as well as the cited case of Nilkantha V. Kshitish Chandra, which was a decision by the Hon’ble Calcutta High Court were both not rendered under the Assam Urban Areas Rent Control Act, 1972 and, as such, the same is not applicable in the present case in hand and distinguishable in facts as well as on the applicable law in force. Moreover, this issue was also not raised in suit, appeal or revision. c. The other two points raised were that the status of Defendant No.1 as HUF was left undecided and that if Defendant No.1 was a HUF, then the suit is bad for non- joinder of necessary parties and Renu Devi Kucheria was not a necessary party. In this regard, although this Court in CRP 94/2011 had left the issue to be decided in suit, no material has been produced in this review application to show that the petitioners had led evidence to show that the Defendant No.1 was a HUF. Moreover, it is not explained why the Defendant No.2 got herself impleaded by claiming herself to be the LRs of original sole defendant and why any of the alleged HUF members remained silent amounting to their acquiescence when Petitioner No. 1 claimed to be a necessary party and got herself impleaded by order dated 14.10.1985. Moreover, the original tenant was Chouthmal Kucheria, who was an individual and against whom the suit was originally instituted in the year 1977. The learned counsel for the petitioners has not been able to show from any material produced in this application that who are the Karta and coparceners of HUF and whether all the HUF members share a common kitchen. Therefore, when the petitioners have not raised the point at the suit, appeal or revision, the doctrine of waiver, acquiescence and estoppel on part of the petitioners is found to have set in. d. The other issue is about the status of property of the respondents. In this regard, it is a trite law that the tenant cannot question the title of the landlord. It is also a well settled law that any co-owner can sue for eviction of a tenant. d. The other issue is about the status of property of the respondents. In this regard, it is a trite law that the tenant cannot question the title of the landlord. It is also a well settled law that any co-owner can sue for eviction of a tenant. Moreover, the petitions filed by the Respondents No.7 and 8 cannot be treated as relinquishment, as it is hit by the provisions of Section 17(1) of the Registration Act, 1908. On perusal of petition filed by respondents No.7 and 8, they merely state here that they are happily married with sufficient dowry and they have waived and relinquished their claims and desire that the respondent No.6 may inherit the property. Therefore, inheritance has not yet been settled. This issue was also not raised in course of trial, appeal and revision and has been raised for the first time in this review. e. The last issue raised was that no order was passed on petition No. 5218/81, for striking out the plaint. None of the present petitioners were parties to the suit in the year 1981. There is no positive statement that the petitioners pressed the point even at the stage of final hearing. Therefore, when a suit based on the plaint has been decreed, no case is made out now for striking out the plaint. The court does not owe any duty to shift records and find out which petitions have not been disposed of. If the courts do not get notice that petition filed in 1981 was not pressed by the petitioners, such petition would fall within the scope of well settled principles that prayer made and not allowed is deemed to be refused. The matter was left out in trial, appeal and revision and raised in this review after a lapse of 36 years. The said petition is also found to be adversely hit by the principles of waiver, acquiescence and estoppel. 27. One more point was forcefully submitted that Mahabir Prasad Tewari was not the attorney and the original plaintiffs did not appear as witness. In this connection, it is seen that Mahabir Prasad Tewari was duly substituted as the LRs of the plaintiff No.1. 27. One more point was forcefully submitted that Mahabir Prasad Tewari was not the attorney and the original plaintiffs did not appear as witness. In this connection, it is seen that Mahabir Prasad Tewari was duly substituted as the LRs of the plaintiff No.1. Therefore, even assuming that he was not the attorney of any of the plaintiffs or substituted plaintiffs, he still had the right to examine himself as substituted plaintiff and since a suit by a co-owner is maintainable even if other co-owners do not join in the suit, the suit is still maintainable. No authority contrary to above was pressed by the learned counsel for the petitioners. Moreover, the said issue having not been raised in course of revision, the judgment cannot be faulted with on this point. 28. As this court finds that several points were not raised in the suit and argued for the first time in this review application, this court is compelled to observe that in a suit which is being contested from the year 1977, there could be several orders passed by the trial court and there could be still more orders passed in course of appeal before the first appellate court and various rounds of revision before this Court. It would be too much to expect that any court would owe a duty to minutely go through all the previous orders passed in the suit, appeal or revision, save and except an order of remand by the superior court. Therefore, when the petitioners did not make any attempt to raise any of the points in course of trial, first appeal and revision, it would amount to waiver and acquiescence and, as such, under the principles of estoppel, the petitioners are prevented from raising these issues for the first time in guise of a review application. This court is not persuaded to accept that there was any mistake or error in the judgment passed by this court in CRP 96/2015. 29. All the issues that are now being pressed are those matters which could have been raised or urged before the learned court of first instance, but were not raised and they were also not agitated in course of first appeal, which is the last court of facts. 29. All the issues that are now being pressed are those matters which could have been raised or urged before the learned court of first instance, but were not raised and they were also not agitated in course of first appeal, which is the last court of facts. The scope of a revisional court under section 115 CPC to interfere with the concurrent finding of facts is on a narrow pedestal and the scope for a review is far more restricted as it is bound by the provisions of Order XLVII Rule 1 CPC. 30. In none of the cases cited by the learned counsel for the petitioners, it has been laid down that issue raised for the first time can be a ground for exercising review jurisdiction, even when there is no error in the revisional judgment. This Court is not persuaded to accept that merely because if one point is allowed to be raised, the result of the decision would be different, is not one of the recognized tenets of law in respect of exercise of power of review. The said submission made by the learned counsel for the petitioners sounds attractive, but it may perhaps be best suited for an appeal, but certainly not for exercising the power to review that if a different argument is made and accepted, the result of the decision may be different. Moreover, this court is definitely not sitting in appeal over the order passed by this Court in CRP 96/2015. 31. The cases cited by the learned Counsel for the petitioners are not applicable in the present case in hand and distinguishable on facts. None of the cases cited by the learned counsel for the petitioners are relevant to the issue herein as to “whether a point can be urged for the first time in review”. All the matters and/or issues which are now put up and/or pressed for re-consideration in review were the situations which were very much available on record at the time when the suit was heard. It is not that any new material was recently discovered, which despite due diligence could not have been raised at the stage of trial, appeal or revision. 32. It is a trite law while exercising power of review that the error complained of must be found apparent on the face of the record without delving much to find out the defect. 32. It is a trite law while exercising power of review that the error complained of must be found apparent on the face of the record without delving much to find out the defect. But in the present case, this court has been led to read the pleadings, various orders and relevant portion of the evidence of the witnesses as well as so many judgments cited by the petitioners in an attempt to find out whether or not there was any error apparent on the face of record. But as indicated above, no error apparent was found in the impugned judgment and order passed by this Court in CRP No. 96/2015. 33. It is also not the case of the petitioners that any new and important matter or evidence, which after the exercise of due diligence was not within the knowledge of the petitioners. The words “any other sufficient reason” cannot be read to mean a fresh hearing of revision on points not raised in course of trial, appeal or revision. 34. Hence, in view of the discussions above, without finding any infirmity in the judgment and order dated 10.03.2016 passed by this Court in CRP No. 96/2015, this application for review is dismissed. The review is held, not maintainable. The parties are left to bear their own cost. 35. The registry may now register and number the review application and treat the same as dismissed. After the registration and numbering of the review application, this judgment may be released and posted online.