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2018 DIGILAW 2044 (JHR)

Meera Gupta v. Monjula S Sooresh

2018-09-11

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioner is aggrieved of order dated 05.12.2012 by which the application for review of orders dated 27.01.2006 and 26.03.2008 has been admitted for "hearing", and order dated 02.02.2013 by which the review-applicant has been permitted to lead evidence. 2. Proceeding in this writ petition has spilled over twenty-three dates and on account of pendency of the writ petition proceeding in Partition Suit No.200 of 1993 has not progressed. 3. Respondent in-person is not present. 4. On previous dates also her presence is not marked. 5. In the above facts, I am not inclined to adjourn hearing of this writ petition any further. 6. Briefly stated, Partition Suit No.200 of 1993 was instituted by Sanjiv Sinha for a preliminary decree to the extent of half share in the suit property for him. The defendant filed written-statement admitting the claim of the plaintiff and accordingly the suit was decreed by a judgment dated 02.03.1994 in the following terms: "6. Having considered the factum of half 2 share of the plaintiff and left no.1 in the undivided suit property and the admission having been made by deft. No.1 about the half share of her brother in the same it is held that both the parties have got equal share in the suit property and there is unity of title and community of possession between the parties with regard to the suit land property and under such state of affairs the plaintiff is entitled to get partition in this suit to the extent of his half share. 7. In the result, this suit is decreed on admission made by the deft. No.1 without lost. Let a preliminary decree be prepared with regard to the half 2 share of the plaintiff and defendant no.1 in the suit property and half a share be carved out by a survey knowing pleader commissioner to be appointed. 8. Deft. No.2 is held to have moral right to live in the suit house till his lifetime and plaintiff is morally, religiously and mentally bound under the tennets of Hindu Law to perform his pious obligation towards his father who has brought him on the earth and if he fails in his duty to do so the deft. No.1 who has taken the responsibility on her shoulder to perform all sorts of pious obligation towards her father, will look after him. 9. No.1 who has taken the responsibility on her shoulder to perform all sorts of pious obligation towards her father, will look after him. 9. With these observation this suit is disposed of." 7. About a decade after a preliminary decree was drawn on 11.03.1994, the plaintiff- Sanjiv Sinha died on 11.05.2004. Thereafter, an application under Order-I Rule 10(2) CPC was filed by the petitioner- Mrs. Meera Gupta for her impleadment in the partition suit. This application was for her addition as plaintiff in the partition suit by virtue of sale-deed dated 26.03.2002 executed by the original plaintiff in her favour. Opposing the application for impleadment of the petitioner, the defendant took a stand that on death of the plaintiff since his legal heirs and successors were not substituted the suit has abated. However, by an order dated 27.01.2006 the petitioner was impleaded in the suit in place of the deceased-original plaintiff. The petition dated 17.01.2005 with supplementary petition dated 11.12.2007 were dismissed by an order dated 26.03.2008 on the ground that the final decree proceedings do not abate due to death of a party. 8. Against the orders dated 27.01.2006 and 26.03.2008, the defendant has filed the review petition which has been registered as Misc. Case No.5 of 2008. In the miscellaneous case the petitioner has raised a question on maintainability of the review petition. 9. Mr. Indrajit Sinha, the learned counsel for the petitioner submits that an application for review which is hopelessly barred by limitation cannot be admitted for hearing and, if at all it is admitted, the review-applicant cannot be permitted to lead evidence on the issues which may form foundation for an appeal. 10. Order-Xlvii Rule 1 CPC reads as under: 1. Mr. Indrajit Sinha, the learned counsel for the petitioner submits that an application for review which is hopelessly barred by limitation cannot be admitted for hearing and, if at all it is admitted, the review-applicant cannot be permitted to lead evidence on the issues which may form foundation for an appeal. 10. Order-Xlvii Rule 1 CPC reads 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 mater 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 to the Court which passed the decree or made the order. 11. By now it is well-settled that an application for review must be decided within the parameters as indicated under Order-XLVII CPC; an application for review cannot be converted into an appeal in disguise. The procedure adopted in the civil courts is that normally when an application is filed it is assigned its number and in routine manner it is admitted for hearing. Order dated 05.12.2012 records objection of the petitioner that the review application has been filed to delay disposal of the main matter. In view of long pendency of several applications, all that the trial Judge has done is to admit the application for review for its early disposal; this application was pending for the last about five years. The apprehension of the petitioner, that by admitting the application for review the trial Judge has condoned the delay in filing the aforesaid review petition, is misplaced. A question of limitation, even if not raised by the other party, has to be considered by the trial court [refer section 3 of the Limitation Act]. The apprehension of the petitioner, that by admitting the application for review the trial Judge has condoned the delay in filing the aforesaid review petition, is misplaced. A question of limitation, even if not raised by the other party, has to be considered by the trial court [refer section 3 of the Limitation Act]. In so far as legality of the order dated 26.03.2008 is concerned, keeping in mind the settled position in law that at times question of limitation becomes a mixed question of facts and law, order dated 02.02.2013 by which the review-applicant has been granted permission to lead evidence cannot be questioned. 12. In view of the aforesaid facts and for the reasons indicated hereinabove, challenge to the impugned orders dated 27.01.2006 and 26.03.2008 fails, however, it is clarified that the question of limitation raised by the petitioner is left open to be thrashed out in the proceeding of Misc. Case No.5 of 2008 and the review-applicant shall not be permitted to lead evidence on the issues beyond Order-XLVII Rule 1 CPC. 13. With the aforesaid clarification and direction, the writ petition stands disposed of.