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2019 DIGILAW 544 (UTT)

Gopal Singh v. Board of Revenue

2019-10-22

MANOJ K.TIWARI

body2019
JUDGMENT : Manoj K. Tiwari, J. There is a delay of 3731 days in filing this review application. Cause shown is sufficient to condone the delay. Accordingly, the delay condonation application is allowed. Delay in filing review application is hereby condoned. 2. Mr. Gopal Singh (writ petitioner) filed a suit under Section 180 of U.P. Tenancy Act against Mr. Raghubir Singh (respondent No. 4 herein), which was decreed by Assistant Collector 1st Class, Haldwani vide judgment dated 17.09.1969. The defendant to the suit challenged the said judgment by filing appeal and learned Commissioner, Kumaon Division Nainital vide judgment dated 26.06.1991 allowed the said appeal and dismissed the suit filed by the petitioner. Petitioner, feeling aggrieved, by the judgment rendered by first appellate court, filed second appeal before Board of Revenue, which was dismissed by Board of Revenue vide judgment dated 20.05.1994. The judgment rendered by all the three courts were challenged by the petitioner by filing writ petition No. 29937 of 1994 before Allahabad High Court, which was renumbered as WPMS No. 92 of 2001, after transfer to this Court. The writ petition was dismissed vide judgment dated 07.08.2008. 3. This review application has been filed by Mr. Gopal Singh (writ petitioner) seeking review of the judgment dated 07.08.2008, whereby his writ petition was dismissed and the order dated 05.08.2010, whereby his application seeking review of the judgment was rejected. 4. The grounds raised in this review application are as follows:- A. Because, a manifest error apparent on the face of the record arising out of the judicial impropriety on the part of the first Appellate Court i.e. Commissioner's Court in entertaining the Appeal of respondent No. 4 and disturbing the unassailable findings of the learned trial Court i.e. the Court of Assistant Collector 1st Class/SDM, Haldwani inspite of the learned Commissioner himself firstly dismissing the Appeal of respondent No. 4 as not pressed and dismissing his application for restoration twice (second time following the direction by the Board of Revenue to rehear his application for restoration) committed a faux pas (blunder) in as much as he reheard the appeal and set aside the order passed by the learned trial Court, which is against all canons of administration of justice and has resulted in miscarriage of justice. B. Because, the miscarriage of justice resulting from the impugned order dated 07.08.2008 passed by this Hon'ble Court dismissing the writ petition of the petitioner is without adverting to the case of the petitioner and the grounds taken up in the writ petition as also from the order dated 05.08.2010 passed by this Hon'ble Court dismissing the Review petition against the aforesaid order exclusively on the basis of the false averments made by the respondent that the writ petition was dismissed by the learned Single Judge after hearing the counsel for the petitioner deserves to be adverted to adverted ex debito justicea. C. Because, the correct factual position is that the impugned order dated 07.08.2008 dismissing the writ petition of the petitioner was passed in the absence of the counsel for the petitioner and was also show from the perusal of the record of proceedings inter-alia on 07.08.2008 could not be treated as negated by the factually incorrect submissions made on behalf of the respondents. D. Because, the Hon'ble Court gravely erred in not appreciating the reflection of the names of the counsel for the parties on top of the order finally passed by this Hon'ble Court could not falsify the correct factual position that the counsel for the petitioner was absent when the matter was taken up for hearing and order was reserved. E. Because, the affidavit filed by Ms. Prabha Naithani (earlier counsel for the petitioner) in the Supreme Court in Civil Appeal No. 3164-3165 of 2011 stating that she was not present in the Court when the order was passed, affirms the claim of the petitioner that the order was passed by this Hon'ble Court without hearing her. F. Because, without prejudice to the above grounds it is submitted that this Hon'ble Court was not justified in disregarding the crucial fact that the unexceptionable order/judgment of the learned trial Court was erroneously set aside by the learned Appellate Court without even upsetting the crucial and categorical findings of the learned trial Court that the petitioner in whose name the land in question was entered by the Superintendent Tarai and Bhabhar, Government Estate, Nainital vide order dated 22.09.1948 was a hereditary tenant over the land in question with about two decades of cultivation, which fact was duly vindicated even by the Khatuani of 1374 Fasli. G. Because, this Hon'ble Court failed to appreciate that the dismissal of the suit of the petitioner (which was earlier rightly decreed by the learned trial Court with cost) by the Appellate Court on the basis of erroneous and unsubstantiated assumptions contrary to the letter and spirit of section 180 of the U.P. Tenancy Act, 1939 was legally untenable. 5. This is the second review application filed by the petitioner. His first application, seeking review of the judgment dated 07.08.2008, was rejected on 05.08.2010. Both these orders were challenged by the petitioner by filing SLP and Hon'ble Supreme Court vide order dated 13.08.2018, passed in Civil Appeal Nos. 3164-3165 of 2011, dismissed the civil appeals with liberty to him to file application for review. The order dated 13.08.2018 passed by Hon'ble Supreme Court is extracted below:- "Learned counsel appearing for the appellant prays for withdrawal of these appeals with liberty to make an application for review before the High Court on the ground that the appellant was not heard. Prayer is allowed. Accordingly, the civil appeals are dismissed as withdrawn with the liberty aforesaid." 6. A perusal of the aforesaid order passed by Hon'ble Supreme Court reveals that petitioner's civil appeals were dismissed as withdrawn with liberty to seek review on the ground that he was not heard, while deciding the writ petition. 7. No material has been brought on record in support of petitioner's contention that his counsel was not present during the course of hearing of the writ petition. The judgment dated 07.08.2008 clearly indicates that petitioner's counsel was present at the time when the writ petition was heard and decided. Petitioner's review application was rejected by holding that petitioner's counsel was heard while deciding the writ petition. There is no material on record to prove that petitioner's counsel was not present during the course of hearing of the writ petition. 8. The factum of presence of counsel of the petitioner noted in the judgment dated 07.08.2008 cannot be disbelieved merely on the asking of the petitioner. Learned counsel for the petitioner has raised new issues in the review application touching on the merits of the case. According to learned counsel for the petitioner/ applicant, learned Commissioner erred in allowing the first appeal, which was dismissed qua Mr. Raghubir Singh (respondent No. 3 herein) vide order dated 28.03.1990. Learned counsel for the petitioner has raised new issues in the review application touching on the merits of the case. According to learned counsel for the petitioner/ applicant, learned Commissioner erred in allowing the first appeal, which was dismissed qua Mr. Raghubir Singh (respondent No. 3 herein) vide order dated 28.03.1990. I am afraid that such a plea cannot be entertained at the stage of review application, when it was not raised in his Second Appeal and Writ Petition. 9. Under the garb of review application, applicant wants rehearing of the writ petition, which is not permissible. Under Order 47 Rule 1 of C.P.C. 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 apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 of C.P.C. In exercise of review jurisdiction, it is not permissible for an erroneous decision to be reheard or corrected. A review petition, has a limited purpose and cannot be allowed to be an appeal in disguise. 10. Hon'Ble Supreme Court in the case of Meera Bhanja Vs Nirmala Kumari Chaudhary, (1995) 1 SCC 170 , while dealing with the scope of review jurisdiction has held as under:- "8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, 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 v. Aribam Pishak Sharma, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) (1979) 4 SCC 389 : AIR 1979 SC 1047 "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, 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 errors 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 or 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 merits. That would be 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 errors committed by the subordinate court. 15. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, 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. 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. 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 47, 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, this appeal is required to be allowed. The final decision dated 8-7-1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8-1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs." 11. Hon'ble Supreme Court in the case of Union of India Vs. Sandur Manganese and Iron Ores Limited and others, (2013) 8 SCC 337 , has held as under: "23. It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715 , this Court held as under:- "9. Under Order 47 Rule 1 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. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715 , this Court held as under:- "9. Under Order 47 Rule 1 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 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 24. This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. 25. In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case." 12. In the case of Perry Kansagra Vs. Smriti Madan Kansagra,2019 SCCOnline(SC) 211, Hon'ble Supreme Court has held as under: "16. We have gone through both the judgments of the High Court in the instant case and considered rival submissions on the point. It is well settled that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. We have gone through both the judgments of the High Court in the instant case and considered rival submissions on the point. It is well settled that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. To justify exercise of review jurisdiction, the error must be self-evident. Tested on this parameter, the exercise of jurisdiction in the present case was not correct. The exercise undertaken in the present case, in our considered view, was as if the High Court was sitting in appeal over the earlier decision dated 17.02.2017. Even assuming that there was no correct appreciation of facts and law in the earlier judgment, the parties could be left to challenge the decision in an appeal. But the review was not a proper remedy at all. In our view, the High Court erred in entertaining the review petition and setting aside the earlier view dated 17.02.2017. Having so concluded, the logical course in the circumstances would be to set aside the judgment under appeal and permit the respondent to challenge the judgment dated 17.02.2017. But such a course would entail further litigation and therefore, we have considered the matter from the stand point of second issue as well." 13. Hon'Ble Supreme Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, (2009) 10 SCC 464 , has held as under: "12. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled to rehearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order. With this background, let us analyse the impugned judgment of the High Court and find out whether it satisfies any of the tests formulated above. 26. As held earlier, if the judgment/order is vitiated by an apparent error or it is a palpable wrong and if the error is self-evident, review is permissible and in this case the High Court has rightly applied the said principles as provided under Order 47 Rule 1 CPC. In view of the same, we are unable to accept the arguments of learned Senior Counsel appearing for the appellant, on the other hand, we are in entire agreement with the view expressed by the High Court." 14. After hearing learned counsel for the applicant/petitioner, I do not find any error apparent on the face of the record, which may justify invocation of review jurisdiction. Since rehearing of the writ petition on merits is not permissible under review jurisdiction, therefore, the review application is liable to be rejected. 15. Accordingly, review application is rejected. No order as to costs.