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2018 DIGILAW 819 (RAJ)

BALVEER KAUR v. TARA SINGH

2018-03-21

VIRENDRA KUMAR MATHUR

body2018
JUDGMENT AND ORDER : Virendra Kumar Mathur, J. This S.B. Civil Review Petition under Section 114 of the Code of Civil Procedure has been filed against the order dated 02.11.2017 in S.B. Civil First Appeal No.72/1986, Tara Singh & Ors. Vs. Balveer Kaur & Ors. 2. Briefly stated the facts of the case are that this court, on 02.11.2017, pronounced the judgment whereby the appeal preferred by the appellants-non-petitioners herein was allowed and the judgment and decree dated 05.07.1986 has been quashed and set aside. While allowing the appeal, this court has observed that the appellants-non-petitioners alleged that Gurmel Singh S/o Shri Sadhu Singh was defendant in the suit, who expired in the month of August, 1985 and this fact was in the knowledge of the respondents Nos.1 to 5 petitioners but his legal heirs were not brought on record within the time limit prescribed, hence, the suit stood abated and the decree is nullity. It was contended that the court believed upon the allegation made by the appellants-non-petitioners and given finding that the legal heirs of Gurmel Singh S/o Shri Sadhu Singh have also preferred this appeal and challenged the judgment and decree dated 05.07.1986 on merit also and opined that the judgment and decree is passed against the dead person, it has no value in the eye of law and, therefore, there is no need to examine the judgment and decree so passed by the trial court on merit and consequently allowed the appeal and impugned order has been set aside. The appellants-non-petitioners have misled the court while narrating the fact that Gurmel Singh (in the suit cause title the name is mentioned as Gurmej Singh) was expired in the month of August, 1985. However, Gurmel Singh expired on 05.07.1986 and placed the copy of the death certificate issued by the Gram Panchayat, Ganeshgarh, District Sriganganagar on record of this review petition as Annex.2. It was stated that the suit was preferred by the predecessor of the petitioners in the year 1973 for the specific performance of contract dated 05.04.1968 and 31.03.1971, which came up for hearing on 05.05.1984 and the arguments of plaintiff were heard and the matter was ordered to be posted for 29.05.1984 for pronouncement of judgment, however, on that day, the judgment could not be pronounced by the reasons whatsoever. Subsequently, again the arguments were taken place on two dates, i.e. 02.07.1986 and 05.07.1986. Subsequently, again the arguments were taken place on two dates, i.e. 02.07.1986 and 05.07.1986. Advocate Shri Brij Mohan appeared on behalf of the defendants Nos.2 to 6 (Tara Singh, Gurmel Singh, Kartar Singh, Ishar Singh, Jeet Singh) and put his argument on their behalf. After hearing the parties, the learned trial court allowed the suit vide its order dated 05.07.1986. It was alleged that from the order-sheet of the suit, it clearly revealed that the factum of death of defendant Gurmel Singh was nowhere brought to the knowledge of the court because till the decision of the suit, defendant Gurmel Singh was alive. But, only to mislead the court, appellants-non-petitioners have narrated the wrong facts in the memo of appeal. However, no documentary proof was produced in support of their version nor any affidavit has been filed in support of their version. It was further alleged that the appellants-non-petitioners have not taken any grounds in the memo of appeal and no arguments have been raised at the time of final arguments of the appeal with regard to abatement of suit. Hence, the court has committed a serious error while believing upon the alleged wrong fact regarding the death of Gurmel Singh. It was also stated that during the pendency of the first appeal, the respondent No.2 Jaswant Singh S/o Tota Singh also expired on 25.09.1999 but his legal heirs were not brought on record of appeal, therefore, the appeal itself stood abated and the judgment dated 02.11.2017 passed by this court is nullity as the same was passed against a dead person. Hence, the present review petition has been filed. 3. Heard learned counsel for the parties and perused the material available on record. 4. It was contended on behalf of the petitioners that the judgment dated 02.11.2017 passed by this court is apparently erroneous on the face of record, therefore, the same is liable to be reviewed. The appellants-non-petitioners have misled the court while narrating the wrong facts about the factum of death of Gurmel Singh. 4. It was contended on behalf of the petitioners that the judgment dated 02.11.2017 passed by this court is apparently erroneous on the face of record, therefore, the same is liable to be reviewed. The appellants-non-petitioners have misled the court while narrating the wrong facts about the factum of death of Gurmel Singh. From the order-sheet of suit it is clearly revealed that the factum of death of Gurmel Singh was nowhere brought to the knowledge of the court because till the decision of the suit, defendant Gurmel Singh was alive but only with a view to mislead this Court, appellants-non-petitioners have narrated the wrong facts in the memo of appeal and no documentary proof was produced in support of their version nor any affidavit has been filed in support of their version. It was also contended that during the pendency of the first appeal, the non-petitioner No.2 Jaswant Singh S/o Tota Singh expired on 25.09.1999 but his legal heirs were not brought on record and thus the appeal preferred by the appellants-non-petitioners stood abated and the judgment dated 02.11.2017 passed by this court is nullity as the same was passed against a dead person. It was next contended that in the present case, the appellants-non-petitioners have narrated wrong facts with regard to the death of Gurmel Singh but the petitioners could not rebut or controvert the same as the appeal is not an appropriate forum to rebut or controvert the facts. But the court has not considered this aspect of the matter and delivered the judgment declaring the abatement of suit. Hence, the judgment dated 02.11.2017 passed by this court is apparently erroneous on the face of the record and the same is liable to be reviewed. 5. Reply to the review petition was filed on behalf of the appellants-non-petitioners and it was stated that it is wrong to say that the appellants-non-petitioners had misled the Hon'ble Court that Gurmel Singh expired in the month of August, 1985. Notices of appeal were issued in the year 1986, about more than 30 years ago, and it was clearly mentioned in appeal that Gurmel Singh expired in the month of August, 1985. Even at the time of final arguments on appeal, this fact was not opposed and now in the review petition, death certificate of Gurmel Singh issued by the Gram Panchayat has been placed on record. Even at the time of final arguments on appeal, this fact was not opposed and now in the review petition, death certificate of Gurmel Singh issued by the Gram Panchayat has been placed on record. The certificate is false and not reliable. Gurmel Singh died in the month of August, 1985 and after inquiry, this fact was taken on record of a criminal case No.25/1985. Certified copy of the judgment passed by the Additional District Judge, No.1, Sri Gangangar dated 02.02.1987 was placed on record as Ex.R/1. On the death of Gurmel Singh, inland condolence letter was sent to the family and the original letter with typed copy was also placed on record as Ex.R/2. The appellants-non-petitioners had not narrated the wrong facts in the memo of appeal and the present review petition is not maintainable as per the settled legal position. 6. A rejoinder to the reply was also filed and documents Annex.4 and Annex.5 were placed on record to controvert the facts stated in the reply to the review petition. 7. I have given my thoughtful consideration to the rival submissions made on behalf of both the parties. 8. From the perusal of memo of appeal, it is revealed that in para No.6 of the memo of appeal, it was specifically mentioned that Gurmel Singh S/o Shri Sadhu Singh was defendant in the suit who expired in the month of August, 1985 and this fact was well within the knowledge of the petitioners and his legal heirs were not brought on record within the time prescribed, therefore, the suit stood abated and the decree is nullity. The notices of the appeal were issued in the year 1986, more than 30 years ago and this fact was never controverted. Even, during the pendency of the appeal also, nothing has been stated with regard to the death of Gurmel Singh. Hence, it cannot be said that the petitioners could not get an opportunity to controvert the contentions taken in the memo of appeal regarding the death of Gurmel Singh. 9. So far as the power of review is concerned, the relevant provision is Order XLVII Rule 1 of the Code of Civil Procedure, which reads as under:- "1. Hence, it cannot be said that the petitioners could not get an opportunity to controvert the contentions taken in the memo of appeal regarding the death of Gurmel Singh. 9. So far as the power of review is concerned, the relevant provision is Order XLVII Rule 1 of the Code of Civil Procedure, which 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 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, 6r 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. (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." 10. In order to appreciate the scope of review, Section 114 of the Code of Civil Procedure has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit". In order to appreciate the scope of review, Section 114 of the Code of Civil Procedure has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order XLVII of the Code of Civil Procedure and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XVII CPC which states that the fact that the decision on 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 aground for the review of such judgment. Where the order in question is appealable, the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. The Hon'ble Apex Court, in the case of Thungabhadra Industries Ltd. Vs. Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, (1964) AIR(Supreme Court) 1372, has held as follows:- "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in dusguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. A review is by no means an appeal in dusguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." 11. The Hon'ble Supreme Court, in the case of Meera Bhanja Vs. Nirmala Kumari Choudhary, (1995) AIR(Supreme Court) 455, held as under:- "It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations: It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable error committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court." 12. But, it may not be exercised on the ground that the decision was erroneous on merit. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court." 12. A perusal of the Order XLVII, Rule 1 CPC show that review of a judgment or an order could be sought :(a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. The observations in connection with an error apparent on the face of the record in the case of Satyanarayan Laxminarayan Hegde Vs. Mallikarjum Bhavanappa Tiruymale, (1960) AIR(Supreme Court) 137 were also noted by the Hon'ble Supreme Court as follows:- "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." 13. Under Order XLVII, Rule, CPC, a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII Rule 1 CPC. In exercise of jurisdiction under Order XLVII, Rule 1 CPC, it is not permissible for an erroneous decision to be reheard and connected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. 14. In exercise of jurisdiction under Order XLVII, Rule 1 CPC, it is not permissible for an erroneous decision to be reheard and connected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. 14. In the present case, the plea of death of Gurmel Singh was taken in the memo of appeal in para No.6 and in spite of this, the fact of death of Gurmel Singh was not controverted during 30 years when the appeal remained pending nor any objection was taken during the arguments and now by way of review petition, the fact of death of Gurmel Singh was controverted by placing on record the death certificate issued by the Gram Panchayat, which was challenged in reply to the review petition. Thus, it cannot be said that even after the exercise of due diligence, this fact was not within the knowledge of the petitioners or they could not produce the death certificate at the time when the judgment was passed. There is no error or mistake apparent on the face of record and has to be detected by a process of reasoning. 15. In view of the above, I find no force in this review petition and the same is, therefore, dismissed.