Manju Bala W/o Late Shri Yuvraj Singh v. Shyam Singh Parihar S/o Late Shri Kan Singh Parihar
2024-09-20
MANOJ KUMAR GARG
body2024
DigiLaw.ai
ORDER : 1. The present review petition has been filed by the petitioners against the judgment dated 08.08.2018 passed by co-ordinate Bench of this Court in S.B. Civil First Appeal No. 388/2010 whereby, the first appeal filed by the respondent/plaintiff was allowed. 2. The respondent/ plaintiff had filed an appeal before this Court being S.B. Civil First Appeal No. 388/2010 which came to be decided in favour of the respondent plaintiff vide judgment dated 08.08.2018. Upon allowing of the appeal, the petitioners filed an application under Order 41 Rule 21 CPC praying for re-hearing of the appeal. The said application was dismissed by this Court vide order dated 30.10.2018. Thereafter, the petitioners preferred SLP before the Hon’ble Apex Court feeling aggrieved by the order dated 08.08.2018 and 30.10.2018. The SLP preferred by the present petitioners also came to be dismissed vide order dated 13.12.2018. Now the petitioners have preferred the present review petition for reviewing the order dated 08.08.2018. 3. The present appeal has been listed in ‘Defect’ category as the same is barred by delay of 305 days. The review petitioners had filed an application under Section 5 of Limitation Act. 4. Learned counsel for the petitioners argued that this Court while passing the judgment dated 08.08.2018 has not considered the fact that the Issues No. 4 to 6 and 8 & 9 have been decided against the plaintiff and even if the suit was within the period of limitation, then too the respondent/plaintiff was not able to prove his case qua his claim for possession. It is argued that the co-ordinate Bench of this Court had not reversed the findings on Issues No. 4 to 6, 8 & 9 while passing the judgment dated 08.08.2018 and therefore, there is error apparent on the face of record. It is further argued that this Court has considered the fact that the plaintiff was able to prove the permissible possession of the defendants whereas, it was not the case of permissible possession but the possession was open and hostile. Another argument of counsel for the petitioners is that respondent Shyam Singh Parihar died in the year 2021 but the legal representatives of deceased were not brought on record. On the contrary, vakalatnama has been filed on behalf of Shyam Singh Parihar in the year 2022. 5.
Another argument of counsel for the petitioners is that respondent Shyam Singh Parihar died in the year 2021 but the legal representatives of deceased were not brought on record. On the contrary, vakalatnama has been filed on behalf of Shyam Singh Parihar in the year 2022. 5. Per contra, counsel for the respondent argued that the present review petition is nothing but abuse of process of law. Admittedly, after allowing of the appeal, the petitioners filed an application under Order 41 Rule 21 CPC praying for reviewing the order dated 08.08.2018. The said application was dismissed by this Court vide order dated 30.10.2018. Thereafter, the petitioners preferred SLP before the Hon’ble Apex Court feeling aggrieved by the order dated 08.08.2018 and 30.10.2018. The said SLP preferred by the present petitioners also came to be dismissed vide order dated 13.12.2018. Now, after dismissal of SLP, the petitioners have again preferred the present review petition for reviewing the order dated 08.08.2018. Further, the present review petition has been filed by the petitioners after gross delay of 305 days, without any explanation for the cause of delay. Learned counsel for respondents has also adverted at some length on the scope of the review petition. It is contended that no re-hearing of the matter on merits of issues which was known to or available with the petitioners at the time of the original hearing is permissible in the present review petition. Thus, it is prayed that the present review petition may be dismissed with exemplary cost upon the petitioners. 6. I have heard learned counsel for the parties and carefully gone through the material on record. 7. From the facts on record, it is evident that after allowing of the appeal, the petitioners had earlier filed an application under Order 41 Rule 21 CPC praying for rehearing/reviewing the order dated 08.08.2018. The said application was dismissed by this Court by way of order dated 30.10.2018. Thereafter, the petitioners preferred SLP before the Hon’ble Apex Court feeling aggrieved by the order dated 08.08.2018 and 30.10.2018. The said SLP preferred by the present petitioners also came to be dismissed vide order dated 13.12.2018. 8.
The said application was dismissed by this Court by way of order dated 30.10.2018. Thereafter, the petitioners preferred SLP before the Hon’ble Apex Court feeling aggrieved by the order dated 08.08.2018 and 30.10.2018. The said SLP preferred by the present petitioners also came to be dismissed vide order dated 13.12.2018. 8. It is well settled law that 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. In the present case, the petitioners had already availed the remedy of seeking re-hearing/review of the judgment dated 08.08.2018 which was dismissed by co-ordinate Bench of this Court on 30.10.2018. The said decision was also challenged by the petitioners by way of SLP, however, it also came to be dismissed vide order dated 13.12.2018 and now the petitioners have filed the present review petition again seeking review of order dated 08.08.2018. 9. It is a well settled principle that the dismissal of the special leave petition would not constitute res judicata provided the appeal was challenged by way of special leave petition. However in the present case, a review/re-hearing petition was filed in the High Court against its earlier order dismissing the appeal. Subsequently, an SLP was filed before the Hon’ble Apex Court against the previous dismissal of the review/re-hearing petition and the appeal. Therefore, in the facts and circumstances of the case, the review petitioners are indulging in vexatious litigation and abusing the process of the court by re-approaching the High Court. 10.
Subsequently, an SLP was filed before the Hon’ble Apex Court against the previous dismissal of the review/re-hearing petition and the appeal. Therefore, in the facts and circumstances of the case, the review petitioners are indulging in vexatious litigation and abusing the process of the court by re-approaching the High Court. 10. Moreover, the present review petition is also liable to be dismissed on being barred by limitation inasmuch as, the present review petition has been filed by the petitioners after gross delay of 305 days, without any plausible explanation for the cause of delay except that they had filed an application for rehearing before this Court and thereafter, they challenged the same before Hon’ble Apex Court by way of filing SLP. 11. For the foregoing reasons, the review petition is dismissed without costs, even though, heavy costs are warranted for the abuse of process. 12. Stay petition also stands dismissed.