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2019 DIGILAW 78 (HP)

Nand Lal v. Jagdish Chand Sharma

2019-01-08

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present review petition, under Order 47, Rule 1 read with Section 114 of the Code of Civil Procedure, has been maintained by the petitioner for review of judgment dated 16.4.2018, passed by this Court in CMPMO No.431 of 2017. 2. Briefly, the facts, which are necessary for determination and adjudication of the present review petition are that plaintiff-petitioner (hereinafter referred to as the 'plaintiff') maintained a suit for Permanent Prohibitory Injunction, restraining the defendant-respondent (hereinafter referred to as the 'defendant') from interfering and raising any type of construction in the land comprised in Khata No.182, Khatauni No.202, Khasra No.560, area measuring 9 marlas, situated in Tika Lag, Tappa Mewa, Tehsil Bhoranj, District Solan, Himachal Pradesh (hereinafter referred to as 'suit land') and changing the nature thereof and in case, the defendant succeeds in raising forcible construction over the suit land, then suit for possession by way of demolition of such construction. During the pendency of suit, defendant moved an application, under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement, but the learned Court below dismissed the said application, vide order, dated 23.5.2017. This Court, vide order dated 16.4.2018 allowed the amendment and consequently, amended written statement was ordered to be brought on record before the learned Court below. Being aggrieved by that order, the petitioner has maintained the present review petition. 3. In written statement, the defendant submitted that he is owner of the land, which adjoins the suit land and no construction has been raised by him over the suit land and the alleged construction is over his own land prior to filing of the suit. 4. Mr. Ajay Sharma, learned counsel appearing on behalf of the review petitioner has vehemently argued that in earlier written statement filed by the defendant, his stand was that he is owner of the adjoining land. He has argued that the defendant cannot take U-turn and submitted that he has purchased portion of land from one of the ancestors of co-sharer. He has further argued that this fact was within the knowledge of the defendant, when he filed the written statement and there is error apparent on the face of judgment passed by this Court and so, the present review petition be allowed. 5. On the other hand, Mr. He has further argued that this fact was within the knowledge of the defendant, when he filed the written statement and there is error apparent on the face of judgment passed by this Court and so, the present review petition be allowed. 5. On the other hand, Mr. Tarun Kumar Sharma, learned counsel appearing on behalf of the respondent has argued that the evidence qua purchase of land was led before the learned Court below and when the defendant changed his counsel in the learned Court below, he came to know that such defence was not taken by earlier counsel. He has argued that due to this reason, now the application has been filed, which is required to be allowed, as the amendment application was also allowed by this Court, thus suffers from no error apparent on record and even otherwise also, review petition is not maintainable. 6. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 7. At the very outset, it is seen that it is the defendant, who maintained application for amending written statement. He has filed the application for amending the written statement only, when he came to know that such plea, was not taken by him. This fact, he came to know, when he changed his Advocate in the learned Court below. As per the defendant, though, he has led the evidence to that effect that he has purchased portion of the suit land from the so called co-sharer, but this fact was not pleaded in the written statement. In these circumstances, he has prayed that his amended written statement be taken on record. The petitioner has not taken U-turn, as he has already led evidence to that effect, which fact was not taken in the written statement by the earlier counsel. The lis inter se the parties is required to be adjudicated upon properly and in right perspective, if something, which could not come on record because of the inadvertence of the counsel, and if it is allowed to be brought on record, then it will definitely help in the administration of justice. At the same point of time, as far as the review petition is concerned, the law on the point is already settled. 8. At the same point of time, as far as the review petition is concerned, the law on the point is already settled. 8. Hon'ble Supreme Court in Kamlesh Verma vs. Mayawati and others, (2013) 8 SCC 320 , has stipulated the grounds when the review will be maintainable. The relevant extract of the judgment is as under : 20.1. When the review will be maintainable : (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. 9. Similarly, Hon'ble Supreme Court in Union of India vs. Namit Sharma, (2013) 10 SCC 359 , has held that if a reasoning in the judgment under review is at variance with the clear and simple language in a statute, the judgment under review suffers from a manifest error of law, an error apparent on the face of the record, only then the Court can reverse or modify its decision. 10. This Court, thus, comes to the conclusion that there is no error apparent on the face of judgment, which calls for review. So, the review petition is without merits and dismissed. No order as to costs.