Brief summary of the principles laid down in these cases
could be made as follows:
A) For the Court to exercise its review
jurisdiction, mistake should be apparent on
the face of the record and not the one which
is not as evident and which requires detection
by process of reasoning.
B) If the order is passed upon assessment of a
fact which in reality never existed and the
continuation of such an order has resulted in
miscarriage of justice, review of the judgment
is in order.
C) It is not permissible to review a judgment or
order passed earlier merely because the
reviewing Court takes a different view on
construction of the document.
D) While exercising review power, the reviewing
Court does not sit in judgment over the
decision of the Court deciding the case
earlier.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
MISC. CIVIL APPLICATION NO. 56 OF 2010
IN
SECOND APPEAL NO. 116 OF 1992(D)
Ramdulari w/o Matabadalsingh (Dead)
.. Versus ..
Meerabai wd/o Bharatsingh Baghel (Dead)
L. R. No.1.
CORAM : S. B. SHUKRE, J.
DATE OF PRONOUNCING THE JUDGMENT : JANUARY 18, 2014.
Citation; AIR 2015(NOC)589 Bom
1. This is an application for review filed under Section 114
read with Order 47 Rule 1 of the Civil Procedure Code, 1908.
2. The review of judgment dated 28/4/2008 delivered by this
Court in Second Appeal No. 116 of 1992 has been sought by the
applicants on the ground that there has been an error apparent on
the face of the record in recording a finding as regards ownership of
the nonapplicants
and that this finding has resulted in miscarriage of
justice.
3. The nonapplicants
filed a civil suit bearing Regular Civil
Suit No.144 of 1976 against the applicants claiming that they became
the owners of field No.6/1 having area of about 29 acres situated at
Mouza Dadapur,Tah. Warora, Distt. Chandrapur, hereinafter called as
'suit property', for the sake of convenience, by virtue of registered will
executed in their favour in the year 1973 by one Bharatsingh. It was
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their case that original nonapplicant
No.1 Meerabai was the legally
wedded wife of Bharatsingh and nonapplicant
No.2 was his son and
that Bharatsingh was the owner of the suit property. They submitted
that way back in the year 1952, Bharatsingh gave possession of the
suit property to Meerabai for her maintenance. But later on, in the
year 1964, Bharatsingh claimed back possession from Meerabai and he
also filed a civil suit against her for possession. The suit was dismissed
by the concerned Court, which was the Court of Civil Judge, Junior
Division, Warora and in the appeal filed against the decree of
dismissal of the suit before the District Court, Chandrapur, the suit
was allowed and decree was granted in favour of Bharatsingh. The
second appeal was preferred by the nonapplicants
before the High
Court in the year 1966. During the pendency of this appeal,
Bharatsingh executed an agreement of maintenance in the year 1968
in favour of Meerabai and later on, in the year 1977 also executed a
registered will in favour of Meerabai as well as nonapplicant
No.2
bequeathing the suit property to them. Bharatsingh died on 01/5/1974
and, thereafter, as per the said will, the applicants claimed that they
became absolute owners of the suit property. Meanwhile, Second
Appeal No.187 of 1966, pending in the High Court, came to be
abated on 13/02/1975 and as no legal representatives were brought
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on record, it was disposed of on 13/02/1975. The nonapplicants
submitted that the applicants falsely claiming themselves to be the
cousins of Bharatsingh and thus the legal heirs of Bharatsingh, filed
execution proceedings to execute the decree of possession passed by
the Court of District Judge, Chandrapur. The nonapplicants
submitted
in these execution proceedings that they were not noticed by the
applicants and thus, without their knowledge, got the decree of
possession executed against them. The nonapplicants
further
submitted that they came to know about the said fraud of the
applicants only on 23/11/1975 when Meerabai was summoned by
Tahsildar for mutating the names of the applicants in revenue record
as owners in respect of the suit property. Therefore, the nonapplicants
filed the said suit bearing Regular Civil Suit No. 144 of 1976
for declaration that they were the owners of the suit property and for
recovery of possession of the suit property against the applicants.
4. The applicants resisted the suit. They denied relationship of
the nonapplicants
with Bharatsingh. They denied execution of the
alleged will in favour of the nonapplicants.
They denied that the nonapplicants
were not aware of the execution proceedings and the
decree was got executed by them by playing fraud upon the nonapplicants.
They submitted that the nonapplicants
were not the legal
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representatives of Bharatsingh. They also submitted that the suit as
filed was not maintainable in view of the provisions contained in
Section 47 of the Civil Procedure Code.
5. On these pleadings, several issues were framed by the trial
Court and after considering the evidence adduced by the rival parties,
the suit was decreed by the trial Court. It was found by the trial Court
that Bharatsingh had executed a maintenance agreement in favour of
Meerabai as well as will and that they were valid. It was also found
that the applicants had failed to prove that Meerabai did not become
the owner of the suit property by virtue of the will. It was further
found that Hanumansingh and Ramnathsingh, the common ancestors,
were joint in property and were cosharers
in the property and that
Bharatsingh was the heir of Ramnathsingh. It was further found that
the applicants were not the heirs of Bharatsingh and were not entitled
for possession of the suit property.
6. Upon challenge to all these findings before the Court of the
District Judge, the learned District Judge repelled the same and
confirmed the findings recorded by the trial Court. He also found that
the suit as filed by the nonapplicants
was not barred under law. Being
aggrieved by these concurrent findings, Second Appeal No.116 of 1992
came to be preferred before this Court by the applicants. This appeal
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was admitted upon substantial questions of law and after hearing
learned Counsel for the applicants/appellants and nonapplicants/
respondents, learned Judge of this Court, by his judgment delivered on
28/4/2008, dismissed the appeal. The review of this judgment has
been sought in this application filed by the applicants/appellants.
7. I have heard Shri Joshi, learned Counsel for the applicants
and Shri Badhe, learned Counsel for the nonapplicants.
With their
assistance, I have carefully gone through the judgment delivered by
this Court on 28/4/2008, the plaint of the nonapplicants,
written
statement filed by the applicants and record of the trial Court. Now,
the only point which arises for my consideration is:
Whether the judgment dated 28/4/2008 delivered
by this Court suffers from any error apparent on the
face of the record and, if so, whether it has resulted
in causing of miscarriage of justice?
8. Learned Counsel for the applicants has submitted that the
first error apparent on the face of the record is in the nature of not
answering the first substantial question of law on which this appeal
was initially admitted. He submits that there is absolutely no
reference to this first substantial question of law and it has resulted in
miscarriage of justice. According to learned Counsel for the applicants,
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what is referred to as the first substantial question of law, in fact, is
not a substantial question of law as could be seen from paragraph7
of
the judgment sought to be reviewed by the applicants.
9. Upon perusal of what is stated in paragraph7
of the
judgment dated 28/4/2008, I find that learned Counsel for the nonapplicants
is right. For the sake of convenience, the relevant portion
of paragraph7
is reproduced as under.:
"7. The appeal was initially admitted by Mutalik,
J. on the following substantial question of law.
“Even though there is concurrent finding of
facts given by both the courts below, taking
into consideration the validity of socalled
Wills in or about the years 1884 and 1904
and the previous litigation between the
parties, Second appeal stands admitted.”
10. It is obvious from the above statement that even though the
appeal was stated to be admitted on the substantial question of law,
the fact was that no substantial question of law was formulated in
precise terms. This statement only reflected the reasons for admission
of the second appeal, which were not further translated into a specific
substantial question of law. This was a procedural defect, which
appears to have been cured by this Court by framing in precise terms
three more substantial questions of law, which have been reproduced
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in the later part of paragraph7
of the said judgment. After having
framed the additional substantial questions of law specifically and
precisely, no need for making any reference to the statement
recorded by this Court while admitting the second appeal remained
there and, therefore, I do not find that there is any error apparent
on the face of the record in not referring to and dealing with a
statement of reasons termed as the first substantial question of law.
Therefore, I find no substance in the argument of learned Counsel
made in this regard.
11. Shri Joshi, learned Counsel for the applicants has
submitted that the field, which has been described to be the suit
property in the said judgment dated 28/4/2008, was field Survey No.
6/1 having area of about 29 acres situated at Mouza Dadapur, Tahsil
Warora. He further submitted that in the written statement, in
paragraphs12
and 13, the applicants had only admitted that
Hanumansingh and Ramnathsingh, jointly possessed field No.6 having
area of 58.37 acres in occupancy rights. He further submits that this
admission of a joint possession in occupancy rights of a field was in
respect of field Kh.No. 6 area 58.37 acres and not in respect of the suit
property bearing field Kh.No.6/1 having area of about 29 acres. But,
he further submits, the learned Judge of this Court mistook this
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admission contained in the written statement for admission of the
applicants about the joint ownership and possession of the suit
property by Hanumansingh and Ramnathsingh. He further submits
that on the basis of such an erroneous assumption of fact, which was
not in existence at all, the learned Judge of this Court recorded a
finding that even according to the applicants, Ramnathsingh had half
share in the suit property and with such an admission of title of
Ramnathsingh, the title would naturally pass in favour of Bharatsingh,
the grand son of Ramnathsingh. He further submits that it was for this
reason only and nothing more that this Court confirmed the concurrent
findings recorded by both the Courts below as regards ownership of
the nonapplicants
in respect of the suit property. He argues that this
is an error which is patently manifest on the face of the record and
which has caused miscarriage of justice to the applicants. He submits
that if this mistake is removed, whole basis of the findings recorded by
this Court is taken off and the result would be recall of the judgment
and rehearing of the appeal.
12. On the other hand, Shri Badhe, learned Counsel for the
nonapplicants
submits that the jurisdiction of this Court in reviewing
the judgment is extremely limited and it is limited only to the errors
apparent on the face of the record and that this Court cannot rehear
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the appeal only because another view is possible or the error is of such
a nature as can be detected only through a long drawn process of
reasoning. He submits that in the instant case, there is no such
manifest error which can be detected simply by looking on the face of
the record and therefore any reconsideration of the judgment sought to
be reviewed now would virtually amount to sitting in appeal by this
Court over the judgment delivered by the same Court, which is not
permissible under the law.
13. On going through the judgment of this Court dated
28/4/2008, plaint, written statement and relevant part of the record of
the trial Court, I do not find myself in agreement with the learned
Counsel for the applicants and I am of the opinion that there is
substance in the argument of learned Counsel for the nonapplicants
that this is not a case which falls within the parameters laid down for
exercising review jurisdiction under Section 114 read with Order 47
Rule 1 of the Civil Procedure Code by this Court.
14. In this case, the review power invoked by the applicants is
under that part of Order 47, Rule 1 C.P.C. which relates to judicial
action which is manifestly incorrect. The rule stated in Order 47, Rule
1 is in two parts, first relating to acts attributable to the applicant, and
second to jural actions patently erroneous. For convenience, it is
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reproduced thus “
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, 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.”
15. In the case of M. Shankaraoah & another Vs. State of
Karnataka & others reported in 1993 Supp (4) SCC page 596,
referred to me by learned Counsel for the applicants, the principles
governing the review power relating to judicial action have been stated
in paragraphs18
and 19 of the judgment by the Hon'ble Supreme
Court. The Hon'ble Supreme Court has stated that, basic philosophy
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inherent in the review power is the universal acceptance of human
fallibility and yet, in the realm of law, the Courts lean strongly in
favour of finality of decisions legally and properly made. The Hon'ble
Apex Court has further held that exceptions both statutorily and
judicially have been carved out to correct accidental mistakes or
miscarriage of justice. These exceptions are to be found when the
order is passed under a mistake apparent on the face of record or upon
assumption of some facts which in reality never exist and its
continuation results in miscarriage of justice. The relevant
observations appearing in paragraph18
and are reproduced thus;
“...If the Court finds that the order was passed under
a mistake and it would not have exercised the
jurisdiction but for the erroneous assumption which
in fact did not exist and its perpetration shall result
in miscarriage of justice then it cannot on any
principle be precluded from rectifying the error...”
16. Same principles have been reiterated with further
clarifications in subsequent cases referred to me by learned Counsel
for the nonapplicants.
These cases are;
(1) Devaraju Pillai vs. Seliayya Pillai – AIR 1987
SC 116.
(2) Meera Bhanja vs. Nirmala Kumari Choudhury
– AIR 1995 SC 455.
(3) Parsion Devi Vs. Sumitri Devi – 1997 (8) SCC
715.
(4) M. Ahammedkutty Haji Vs. Tahsildar,
Kozhikode – AIR 2005 SC 1967.
(5) Haridas Das Vs. Usha Rani Banik – AIR 2006
SC 1634.
(6) T. Thimmaiah (D) by L.Rs. Vs. Venkatachala
Raju (D) By L.Rs. AIR
2008 SC (Supp)
1993.
(7) Inderchand Jain (D) Through L.Rs. Vs.
Motilal (D) Through L.Rs.AIR
2009 SCW
5364.
Brief summary of the principles laid down in these cases
could be made as follows:
A) For the Court to exercise its review
jurisdiction, mistake should be apparent on
the face of the record and not the one which
is not as evident and which requires detection
by process of reasoning.
B) If the order is passed upon assessment of a
fact which in reality never existed and the
continuation of such an order has resulted in
miscarriage of justice, review of the judgment
is in order.
C) It is not permissible to review a judgment or
order passed earlier merely because the
reviewing Court takes a different view on
construction of the document.
D) While exercising review power, the reviewing
Court does not sit in judgment over the
decision of the Court deciding the case
earlier.
17. Now, keeping in mind these well settled principles
governing the exercise of review powers under Section 114 read with
Order 47 Rule 1 C.P.C., it has to be seen as to whether any mistake of
fact apparent on the face of the record has been committed by the
Court earlier and whether or not it has resulted in miscarriage of
justice. It must be noted here that to review a judgment, it is not
merely detection of manifest or patent error apparent on the face of
record which is sufficient, but it is also necessary that such an error
must have caused miscarriage of justice to the party seeking review of
the earlier decision.
18. On going through the judgment sought to be reviewed, it
can be seen that this Court mainly relied upon the admission given by
the applicants in their written statement as regards the title of
Ramnathsingh in respect of the suit property and keeping this
admission in mind, this Court recorded a finding that since
Ramnathsingh had a title in respect of the suit property, it would
naturally pass over to Bharatsingh, he being the grandson of
Ramnathsingh. Relevant admissions of the applicants as appearing in
their written statement have been considered by this Court in
paragraph17
of the said judgment. Consideration of these admissions
appears in the following terms:
"...The defendants have pleaded in para 11 of the
written statement that the suit property belonged to
Hanumansingh and Ramnathsingh jointly. It is
pleaded that Hanumansingh had half share in the
suit field. Naturally even, according to defendant,
Ramnathsingh had half share in the suit
property...".
19. The admissions given by the applicants were not in
paragraph11
but in paragraphs 12 and 13 of the written statement
and these admissions were not in respect of the suit property, but in
respect of field bearing Kh.No.6 having area of 58.37 acres. There is
no dispute about the fact that the suit property bearing No.6/1 is a
part of the larger field bearing Kh.No.6 having area of 58.37 acres and
the area of the suit property admittedly is of about 29 acres, which is
half of the larger field bearing Kh. No.6. The admissions appearing in
paragraphs12
and 13 of the written statement unmistakenly point out
that the applicants admitted the fact that Ramnathsingh had half
interest in the larger field bearing Kh. No.6. This Court did consider
the said admission, but while expressing itself on that aspect of the
dispute between the parties, this Court stated that the half share of
Ramnathsingh was admittedly in the "suit property''. Actually, it
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should have been in respect of the field bearing Kh. No.6 and not the
suit property bearing Kh. No.6/1. This is a patent mistake committed
by this Court and as rightly submitted by learned Counsel for the
applicants, it is ascertainable by merely looking on the face of the
record.
20. No doubt, while considering the admissions of the
applicants, this Court should have stated that Ramnathsingh had half
share in the field bearing Kh. No.6 and not in the "suit property". But,
it appears that this mistake has occurred inadvertently and has had no
bearing on the final conclusion reached by this Court, for, what has
been ultimately found by this Court is the ownership and title of
Ramnathsingh only in respect of the suit property admeasuring
about
29 acres and not in respect of the entire field bearing Kh. No.6. This
would mean there is no miscarriage of justice in this case.
21. For exercising review power, as can be seen from principles
of law stated earlier, two conditions must be fulfilled namely (1) the
mistake should be apparent on the face of the record, and (2) it should
result in miscarriage of justice. Attainment of both of these conditions
is essential for reviewing a decision passed earlier by the same Court.
If only one of these two conditions is fulfilled, the Court will not have
any jurisdiction to review its own judgment.
22. In the instant case, while the first condition of error
apparent on the face of the record has been fulfilled, the second
condition regarding miscarriage of justice has not been. The finding
finally recorded by this Court as stated earlier, is that Ramnathsingh
had a title in the suit property admeasuring
29 acres only. This Court
has not found that he had a title in the larger field bearing Kh. No.6
admeasuring
58.37 acres. This finding is consistent with the
admissions given by the applicants and as are found in paragraph12
of the written statement, wherein the applicants have specifically
admitted that Ramnathsingh had half an interest in the field bearing
Kh. No.6 having area of about 58.37 acres. The finding as regards
ownership of the nonapplicants
through Bharatsingh is only in respect
of this half interest of Ramnathsingh in larger field Kh. No.6. If this
Court, upon erroneous assumption of the facts not in existence, had
recorded a finding that Ramnathsingh had a title in respect of the
entire field bearing Kh. No.6, then, it could have been said that
injustice was caused to the applicants. But, that is not the case here.
It was only due to inadvertence that this Court mentioned about the
admissions appearing in the written statement of the applicants as
relating to the suit property, in stead of larger field bearing Kh. No.6.
This mistake, however, ultimately, has not been continued by this
Court in reaching a conclusion about the title of Ramnathsingh in
respect of the suit property, which was half of field Kh. No.6.
Therefore, I find no merit in the argument of learned Counsel for the
applicants that this is a fit case for review of the judgment delivered on
28/4/2008.
23. Learned Counsel for the applicants invited my attention to
some of the admissions given by original applicant No.1 Ramdulari in
the crossexamination
taken on behalf of the nonapplicants.
In this
crossexamination,
some of the admissions in the nature of denials of
pleading that the suit field was owned by Hanumansingh and
Ramnathsingh have appeared. It is on the basis of these admissions,
learned Counsel for the applicants has submitted that the admissions
given by the applicants about Ramnathsingh having half share in field
Kh. No.6 were retracted and since there has been no reference made
to these admissions in the nature of denial of the pleadings by this
Court in the said judgment, it is yet another mistake apparent on the
face of the record calling for review of the judgment. Learned
Counsel for the nonapplicants
disagrees. He submits that this Court
has considered the overall nature of pleadings and evidence on record
and reached to a conclusion as regards ownership of Ramnathsingh in
respect of the suit property, which conclusion now cannot be reopened
by a reviewing Court, as it would amount to sitting in appeal over the
judgment of same Court.
24. Let us see what these admissions stated to be in the nature
of denials of the pleadings are. They read thus;
"It is not true that the suit field was owned by
Hanumansingh and Ramnathsingh. The contents to
that extent in paras 12, 13 in my written statement
(Exh.21) as marked A & B are false...”
These statements of facts made by Ramdulari cannot be
said to be retraction of her averments in the written statement that
Hanumansingh and Ramnathsingh jointly owned field bearing Kh.No.6
and that in this field, Ramnathsingh had half an interest. By the said
statement of Ramdulari, what is denied is that the suit property
involved in the suit, which was not the field Kh. No.6 but field No.6/1,
was owned by Hanumansingh and Ramnathsingh. The suit field or
suit property never jointly belonged to both these brothers and as per
the averments in the written statement, it has to be understood that
the suit property representing half portion of field Kh. No.6 belonged
to Ramnathsingh. Therefore, the further statement of fact made by
Ramdulari that the contents in paragraphs12
and 13 in the written
statement to the extent of joint ownership of Hanumansingh and
Ramnathsingh in the suit property were false, cannot also be read as
an act of resiling from her original stand. These admissions never
really ran counter to the averments appearing in paragraph12
or
paragraph13
of the written statement. Therefore, I find no substance
in the argument of learned Counsel for the applicants in this regard.
25. Learned Counsel for the applicants has further argued that
in the judgment under review, reliance has been placed upon entries in
revenue record to give a finding about title, which is not permissible.
In support, he places reliance upon the decision of Hon'ble Supreme
Court rendered in the case of State of H.P. Vs. Keshav Ram & others(
1996) 11 SCC 257, which lays down that an entry in the revenue
papers cannot form basis of declaration of title. While there is no
dispute about this principle of law, there is no occasion for this Court
to consider the same for it's application or otherwise in review
jurisdiction. Doing so would amount to rehearing the appeal on
merits, which is not permissible under this jurisdiction.
26. Learned Counsel for the applicants has further submitted
that it is well settled law that merely on the basis of admissions, title
cannot be held to be established. In support, he refers to the law laid
down by the Hon'ble Supreme Court in the case of Union of India Vs.
Purushotam Dass Tandon & another reported in 1986 (Supp) SCC
720. With due respect, it must be stated here that the Hon'ble
Supreme Court in this case has not laid down as a preposition of law
that in all cases clear and unambiguous admissions cannot be used as
reliable pieces of evidence to record a finding about title of a person.
The Hon'ble Supreme Court has held that the admissions before being
relied upon must be unambiguous and must not be vague and if there
is any ambiguity or vagueness, then, it is obligatory upon the party
relying upon them to put them to a witness before they can be used.
Therefore, I find no substance in the argument that admissions can
never be used to record a finding about title. That apart, this is not
something which can be considered by a Court in exercise of review
jurisdiction. This is a matter of merits and therefore would have to be
considered by the appropriate Court in appeal.
27. In the result, I find that review application cannot be
allowed. The point is answered accordingly.
I. The review application stands dismissed.
II. In the circumstances of the case, there shall
be no order as to cost.
III. At this stage, learned Counsel for the
applicants has prayed for continuation of the
interim stay to the effect and operation of
the decrees passed by the courts below for a
period of eight weeks to enable the
applicants to approach the Hon'ble Supreme
Court in the matter.
IV. The request has been strongly opposed by
learned Counsel for the nonapplicants
on
the ground that the applicants have been
deprived of by the possession for a very long
period of time and that this would result in
keeping them out of the possession for a
more period of time, even though they have
succeeded in securing the relief.
V. Considering the fact that interim stay was
already in operation, I do not think that
continuation of the same for some more
period of time would really cause any
prejudice to the rights of the nonapplicants.
Therefore, it would be in the interest of
justice that the prayer so made is granted
and accordingly interim stay is continued for
a further period of eight weeks from the date
of the order.
JUDGE
Print Page
could be made as follows:
A) For the Court to exercise its review
jurisdiction, mistake should be apparent on
the face of the record and not the one which
is not as evident and which requires detection
by process of reasoning.
B) If the order is passed upon assessment of a
fact which in reality never existed and the
continuation of such an order has resulted in
miscarriage of justice, review of the judgment
is in order.
C) It is not permissible to review a judgment or
order passed earlier merely because the
reviewing Court takes a different view on
construction of the document.
D) While exercising review power, the reviewing
Court does not sit in judgment over the
decision of the Court deciding the case
earlier.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
MISC. CIVIL APPLICATION NO. 56 OF 2010
IN
SECOND APPEAL NO. 116 OF 1992(D)
Ramdulari w/o Matabadalsingh (Dead)
.. Versus ..
Meerabai wd/o Bharatsingh Baghel (Dead)
L. R. No.1.
CORAM : S. B. SHUKRE, J.
DATE OF PRONOUNCING THE JUDGMENT : JANUARY 18, 2014.
Citation; AIR 2015(NOC)589 Bom
1. This is an application for review filed under Section 114
read with Order 47 Rule 1 of the Civil Procedure Code, 1908.
2. The review of judgment dated 28/4/2008 delivered by this
Court in Second Appeal No. 116 of 1992 has been sought by the
applicants on the ground that there has been an error apparent on
the face of the record in recording a finding as regards ownership of
the nonapplicants
and that this finding has resulted in miscarriage of
justice.
3. The nonapplicants
filed a civil suit bearing Regular Civil
Suit No.144 of 1976 against the applicants claiming that they became
the owners of field No.6/1 having area of about 29 acres situated at
Mouza Dadapur,Tah. Warora, Distt. Chandrapur, hereinafter called as
'suit property', for the sake of convenience, by virtue of registered will
executed in their favour in the year 1973 by one Bharatsingh. It was
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their case that original nonapplicant
No.1 Meerabai was the legally
wedded wife of Bharatsingh and nonapplicant
No.2 was his son and
that Bharatsingh was the owner of the suit property. They submitted
that way back in the year 1952, Bharatsingh gave possession of the
suit property to Meerabai for her maintenance. But later on, in the
year 1964, Bharatsingh claimed back possession from Meerabai and he
also filed a civil suit against her for possession. The suit was dismissed
by the concerned Court, which was the Court of Civil Judge, Junior
Division, Warora and in the appeal filed against the decree of
dismissal of the suit before the District Court, Chandrapur, the suit
was allowed and decree was granted in favour of Bharatsingh. The
second appeal was preferred by the nonapplicants
before the High
Court in the year 1966. During the pendency of this appeal,
Bharatsingh executed an agreement of maintenance in the year 1968
in favour of Meerabai and later on, in the year 1977 also executed a
registered will in favour of Meerabai as well as nonapplicant
No.2
bequeathing the suit property to them. Bharatsingh died on 01/5/1974
and, thereafter, as per the said will, the applicants claimed that they
became absolute owners of the suit property. Meanwhile, Second
Appeal No.187 of 1966, pending in the High Court, came to be
abated on 13/02/1975 and as no legal representatives were brought
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on record, it was disposed of on 13/02/1975. The nonapplicants
submitted that the applicants falsely claiming themselves to be the
cousins of Bharatsingh and thus the legal heirs of Bharatsingh, filed
execution proceedings to execute the decree of possession passed by
the Court of District Judge, Chandrapur. The nonapplicants
submitted
in these execution proceedings that they were not noticed by the
applicants and thus, without their knowledge, got the decree of
possession executed against them. The nonapplicants
further
submitted that they came to know about the said fraud of the
applicants only on 23/11/1975 when Meerabai was summoned by
Tahsildar for mutating the names of the applicants in revenue record
as owners in respect of the suit property. Therefore, the nonapplicants
filed the said suit bearing Regular Civil Suit No. 144 of 1976
for declaration that they were the owners of the suit property and for
recovery of possession of the suit property against the applicants.
4. The applicants resisted the suit. They denied relationship of
the nonapplicants
with Bharatsingh. They denied execution of the
alleged will in favour of the nonapplicants.
They denied that the nonapplicants
were not aware of the execution proceedings and the
decree was got executed by them by playing fraud upon the nonapplicants.
They submitted that the nonapplicants
were not the legal
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representatives of Bharatsingh. They also submitted that the suit as
filed was not maintainable in view of the provisions contained in
Section 47 of the Civil Procedure Code.
5. On these pleadings, several issues were framed by the trial
Court and after considering the evidence adduced by the rival parties,
the suit was decreed by the trial Court. It was found by the trial Court
that Bharatsingh had executed a maintenance agreement in favour of
Meerabai as well as will and that they were valid. It was also found
that the applicants had failed to prove that Meerabai did not become
the owner of the suit property by virtue of the will. It was further
found that Hanumansingh and Ramnathsingh, the common ancestors,
were joint in property and were cosharers
in the property and that
Bharatsingh was the heir of Ramnathsingh. It was further found that
the applicants were not the heirs of Bharatsingh and were not entitled
for possession of the suit property.
6. Upon challenge to all these findings before the Court of the
District Judge, the learned District Judge repelled the same and
confirmed the findings recorded by the trial Court. He also found that
the suit as filed by the nonapplicants
was not barred under law. Being
aggrieved by these concurrent findings, Second Appeal No.116 of 1992
came to be preferred before this Court by the applicants. This appeal
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was admitted upon substantial questions of law and after hearing
learned Counsel for the applicants/appellants and nonapplicants/
respondents, learned Judge of this Court, by his judgment delivered on
28/4/2008, dismissed the appeal. The review of this judgment has
been sought in this application filed by the applicants/appellants.
7. I have heard Shri Joshi, learned Counsel for the applicants
and Shri Badhe, learned Counsel for the nonapplicants.
With their
assistance, I have carefully gone through the judgment delivered by
this Court on 28/4/2008, the plaint of the nonapplicants,
written
statement filed by the applicants and record of the trial Court. Now,
the only point which arises for my consideration is:
Whether the judgment dated 28/4/2008 delivered
by this Court suffers from any error apparent on the
face of the record and, if so, whether it has resulted
in causing of miscarriage of justice?
8. Learned Counsel for the applicants has submitted that the
first error apparent on the face of the record is in the nature of not
answering the first substantial question of law on which this appeal
was initially admitted. He submits that there is absolutely no
reference to this first substantial question of law and it has resulted in
miscarriage of justice. According to learned Counsel for the applicants,
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what is referred to as the first substantial question of law, in fact, is
not a substantial question of law as could be seen from paragraph7
of
the judgment sought to be reviewed by the applicants.
9. Upon perusal of what is stated in paragraph7
of the
judgment dated 28/4/2008, I find that learned Counsel for the nonapplicants
is right. For the sake of convenience, the relevant portion
of paragraph7
is reproduced as under.:
"7. The appeal was initially admitted by Mutalik,
J. on the following substantial question of law.
“Even though there is concurrent finding of
facts given by both the courts below, taking
into consideration the validity of socalled
Wills in or about the years 1884 and 1904
and the previous litigation between the
parties, Second appeal stands admitted.”
10. It is obvious from the above statement that even though the
appeal was stated to be admitted on the substantial question of law,
the fact was that no substantial question of law was formulated in
precise terms. This statement only reflected the reasons for admission
of the second appeal, which were not further translated into a specific
substantial question of law. This was a procedural defect, which
appears to have been cured by this Court by framing in precise terms
three more substantial questions of law, which have been reproduced
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in the later part of paragraph7
of the said judgment. After having
framed the additional substantial questions of law specifically and
precisely, no need for making any reference to the statement
recorded by this Court while admitting the second appeal remained
there and, therefore, I do not find that there is any error apparent
on the face of the record in not referring to and dealing with a
statement of reasons termed as the first substantial question of law.
Therefore, I find no substance in the argument of learned Counsel
made in this regard.
11. Shri Joshi, learned Counsel for the applicants has
submitted that the field, which has been described to be the suit
property in the said judgment dated 28/4/2008, was field Survey No.
6/1 having area of about 29 acres situated at Mouza Dadapur, Tahsil
Warora. He further submitted that in the written statement, in
paragraphs12
and 13, the applicants had only admitted that
Hanumansingh and Ramnathsingh, jointly possessed field No.6 having
area of 58.37 acres in occupancy rights. He further submits that this
admission of a joint possession in occupancy rights of a field was in
respect of field Kh.No. 6 area 58.37 acres and not in respect of the suit
property bearing field Kh.No.6/1 having area of about 29 acres. But,
he further submits, the learned Judge of this Court mistook this
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admission contained in the written statement for admission of the
applicants about the joint ownership and possession of the suit
property by Hanumansingh and Ramnathsingh. He further submits
that on the basis of such an erroneous assumption of fact, which was
not in existence at all, the learned Judge of this Court recorded a
finding that even according to the applicants, Ramnathsingh had half
share in the suit property and with such an admission of title of
Ramnathsingh, the title would naturally pass in favour of Bharatsingh,
the grand son of Ramnathsingh. He further submits that it was for this
reason only and nothing more that this Court confirmed the concurrent
findings recorded by both the Courts below as regards ownership of
the nonapplicants
in respect of the suit property. He argues that this
is an error which is patently manifest on the face of the record and
which has caused miscarriage of justice to the applicants. He submits
that if this mistake is removed, whole basis of the findings recorded by
this Court is taken off and the result would be recall of the judgment
and rehearing of the appeal.
12. On the other hand, Shri Badhe, learned Counsel for the
nonapplicants
submits that the jurisdiction of this Court in reviewing
the judgment is extremely limited and it is limited only to the errors
apparent on the face of the record and that this Court cannot rehear
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the appeal only because another view is possible or the error is of such
a nature as can be detected only through a long drawn process of
reasoning. He submits that in the instant case, there is no such
manifest error which can be detected simply by looking on the face of
the record and therefore any reconsideration of the judgment sought to
be reviewed now would virtually amount to sitting in appeal by this
Court over the judgment delivered by the same Court, which is not
permissible under the law.
13. On going through the judgment of this Court dated
28/4/2008, plaint, written statement and relevant part of the record of
the trial Court, I do not find myself in agreement with the learned
Counsel for the applicants and I am of the opinion that there is
substance in the argument of learned Counsel for the nonapplicants
that this is not a case which falls within the parameters laid down for
exercising review jurisdiction under Section 114 read with Order 47
Rule 1 of the Civil Procedure Code by this Court.
14. In this case, the review power invoked by the applicants is
under that part of Order 47, Rule 1 C.P.C. which relates to judicial
action which is manifestly incorrect. The rule stated in Order 47, Rule
1 is in two parts, first relating to acts attributable to the applicant, and
second to jural actions patently erroneous. For convenience, it is
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reproduced thus “
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, 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.”
15. In the case of M. Shankaraoah & another Vs. State of
Karnataka & others reported in 1993 Supp (4) SCC page 596,
referred to me by learned Counsel for the applicants, the principles
governing the review power relating to judicial action have been stated
in paragraphs18
and 19 of the judgment by the Hon'ble Supreme
Court. The Hon'ble Supreme Court has stated that, basic philosophy
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inherent in the review power is the universal acceptance of human
fallibility and yet, in the realm of law, the Courts lean strongly in
favour of finality of decisions legally and properly made. The Hon'ble
Apex Court has further held that exceptions both statutorily and
judicially have been carved out to correct accidental mistakes or
miscarriage of justice. These exceptions are to be found when the
order is passed under a mistake apparent on the face of record or upon
assumption of some facts which in reality never exist and its
continuation results in miscarriage of justice. The relevant
observations appearing in paragraph18
and are reproduced thus;
“...If the Court finds that the order was passed under
a mistake and it would not have exercised the
jurisdiction but for the erroneous assumption which
in fact did not exist and its perpetration shall result
in miscarriage of justice then it cannot on any
principle be precluded from rectifying the error...”
16. Same principles have been reiterated with further
clarifications in subsequent cases referred to me by learned Counsel
for the nonapplicants.
These cases are;
(1) Devaraju Pillai vs. Seliayya Pillai – AIR 1987
SC 116.
(2) Meera Bhanja vs. Nirmala Kumari Choudhury
– AIR 1995 SC 455.
(3) Parsion Devi Vs. Sumitri Devi – 1997 (8) SCC
715.
(4) M. Ahammedkutty Haji Vs. Tahsildar,
Kozhikode – AIR 2005 SC 1967.
(5) Haridas Das Vs. Usha Rani Banik – AIR 2006
SC 1634.
(6) T. Thimmaiah (D) by L.Rs. Vs. Venkatachala
Raju (D) By L.Rs. AIR
2008 SC (Supp)
1993.
(7) Inderchand Jain (D) Through L.Rs. Vs.
Motilal (D) Through L.Rs.AIR
2009 SCW
5364.
Brief summary of the principles laid down in these cases
could be made as follows:
A) For the Court to exercise its review
jurisdiction, mistake should be apparent on
the face of the record and not the one which
is not as evident and which requires detection
by process of reasoning.
B) If the order is passed upon assessment of a
fact which in reality never existed and the
continuation of such an order has resulted in
miscarriage of justice, review of the judgment
is in order.
C) It is not permissible to review a judgment or
order passed earlier merely because the
reviewing Court takes a different view on
construction of the document.
D) While exercising review power, the reviewing
Court does not sit in judgment over the
decision of the Court deciding the case
earlier.
17. Now, keeping in mind these well settled principles
governing the exercise of review powers under Section 114 read with
Order 47 Rule 1 C.P.C., it has to be seen as to whether any mistake of
fact apparent on the face of the record has been committed by the
Court earlier and whether or not it has resulted in miscarriage of
justice. It must be noted here that to review a judgment, it is not
merely detection of manifest or patent error apparent on the face of
record which is sufficient, but it is also necessary that such an error
must have caused miscarriage of justice to the party seeking review of
the earlier decision.
18. On going through the judgment sought to be reviewed, it
can be seen that this Court mainly relied upon the admission given by
the applicants in their written statement as regards the title of
Ramnathsingh in respect of the suit property and keeping this
admission in mind, this Court recorded a finding that since
Ramnathsingh had a title in respect of the suit property, it would
naturally pass over to Bharatsingh, he being the grandson of
Ramnathsingh. Relevant admissions of the applicants as appearing in
their written statement have been considered by this Court in
paragraph17
of the said judgment. Consideration of these admissions
appears in the following terms:
"...The defendants have pleaded in para 11 of the
written statement that the suit property belonged to
Hanumansingh and Ramnathsingh jointly. It is
pleaded that Hanumansingh had half share in the
suit field. Naturally even, according to defendant,
Ramnathsingh had half share in the suit
property...".
19. The admissions given by the applicants were not in
paragraph11
but in paragraphs 12 and 13 of the written statement
and these admissions were not in respect of the suit property, but in
respect of field bearing Kh.No.6 having area of 58.37 acres. There is
no dispute about the fact that the suit property bearing No.6/1 is a
part of the larger field bearing Kh.No.6 having area of 58.37 acres and
the area of the suit property admittedly is of about 29 acres, which is
half of the larger field bearing Kh. No.6. The admissions appearing in
paragraphs12
and 13 of the written statement unmistakenly point out
that the applicants admitted the fact that Ramnathsingh had half
interest in the larger field bearing Kh. No.6. This Court did consider
the said admission, but while expressing itself on that aspect of the
dispute between the parties, this Court stated that the half share of
Ramnathsingh was admittedly in the "suit property''. Actually, it
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should have been in respect of the field bearing Kh. No.6 and not the
suit property bearing Kh. No.6/1. This is a patent mistake committed
by this Court and as rightly submitted by learned Counsel for the
applicants, it is ascertainable by merely looking on the face of the
record.
20. No doubt, while considering the admissions of the
applicants, this Court should have stated that Ramnathsingh had half
share in the field bearing Kh. No.6 and not in the "suit property". But,
it appears that this mistake has occurred inadvertently and has had no
bearing on the final conclusion reached by this Court, for, what has
been ultimately found by this Court is the ownership and title of
Ramnathsingh only in respect of the suit property admeasuring
about
29 acres and not in respect of the entire field bearing Kh. No.6. This
would mean there is no miscarriage of justice in this case.
21. For exercising review power, as can be seen from principles
of law stated earlier, two conditions must be fulfilled namely (1) the
mistake should be apparent on the face of the record, and (2) it should
result in miscarriage of justice. Attainment of both of these conditions
is essential for reviewing a decision passed earlier by the same Court.
If only one of these two conditions is fulfilled, the Court will not have
any jurisdiction to review its own judgment.
22. In the instant case, while the first condition of error
apparent on the face of the record has been fulfilled, the second
condition regarding miscarriage of justice has not been. The finding
finally recorded by this Court as stated earlier, is that Ramnathsingh
had a title in the suit property admeasuring
29 acres only. This Court
has not found that he had a title in the larger field bearing Kh. No.6
admeasuring
58.37 acres. This finding is consistent with the
admissions given by the applicants and as are found in paragraph12
of the written statement, wherein the applicants have specifically
admitted that Ramnathsingh had half an interest in the field bearing
Kh. No.6 having area of about 58.37 acres. The finding as regards
ownership of the nonapplicants
through Bharatsingh is only in respect
of this half interest of Ramnathsingh in larger field Kh. No.6. If this
Court, upon erroneous assumption of the facts not in existence, had
recorded a finding that Ramnathsingh had a title in respect of the
entire field bearing Kh. No.6, then, it could have been said that
injustice was caused to the applicants. But, that is not the case here.
It was only due to inadvertence that this Court mentioned about the
admissions appearing in the written statement of the applicants as
relating to the suit property, in stead of larger field bearing Kh. No.6.
This mistake, however, ultimately, has not been continued by this
Court in reaching a conclusion about the title of Ramnathsingh in
respect of the suit property, which was half of field Kh. No.6.
Therefore, I find no merit in the argument of learned Counsel for the
applicants that this is a fit case for review of the judgment delivered on
28/4/2008.
23. Learned Counsel for the applicants invited my attention to
some of the admissions given by original applicant No.1 Ramdulari in
the crossexamination
taken on behalf of the nonapplicants.
In this
crossexamination,
some of the admissions in the nature of denials of
pleading that the suit field was owned by Hanumansingh and
Ramnathsingh have appeared. It is on the basis of these admissions,
learned Counsel for the applicants has submitted that the admissions
given by the applicants about Ramnathsingh having half share in field
Kh. No.6 were retracted and since there has been no reference made
to these admissions in the nature of denial of the pleadings by this
Court in the said judgment, it is yet another mistake apparent on the
face of the record calling for review of the judgment. Learned
Counsel for the nonapplicants
disagrees. He submits that this Court
has considered the overall nature of pleadings and evidence on record
and reached to a conclusion as regards ownership of Ramnathsingh in
respect of the suit property, which conclusion now cannot be reopened
by a reviewing Court, as it would amount to sitting in appeal over the
judgment of same Court.
24. Let us see what these admissions stated to be in the nature
of denials of the pleadings are. They read thus;
"It is not true that the suit field was owned by
Hanumansingh and Ramnathsingh. The contents to
that extent in paras 12, 13 in my written statement
(Exh.21) as marked A & B are false...”
These statements of facts made by Ramdulari cannot be
said to be retraction of her averments in the written statement that
Hanumansingh and Ramnathsingh jointly owned field bearing Kh.No.6
and that in this field, Ramnathsingh had half an interest. By the said
statement of Ramdulari, what is denied is that the suit property
involved in the suit, which was not the field Kh. No.6 but field No.6/1,
was owned by Hanumansingh and Ramnathsingh. The suit field or
suit property never jointly belonged to both these brothers and as per
the averments in the written statement, it has to be understood that
the suit property representing half portion of field Kh. No.6 belonged
to Ramnathsingh. Therefore, the further statement of fact made by
Ramdulari that the contents in paragraphs12
and 13 in the written
statement to the extent of joint ownership of Hanumansingh and
Ramnathsingh in the suit property were false, cannot also be read as
an act of resiling from her original stand. These admissions never
really ran counter to the averments appearing in paragraph12
or
paragraph13
of the written statement. Therefore, I find no substance
in the argument of learned Counsel for the applicants in this regard.
25. Learned Counsel for the applicants has further argued that
in the judgment under review, reliance has been placed upon entries in
revenue record to give a finding about title, which is not permissible.
In support, he places reliance upon the decision of Hon'ble Supreme
Court rendered in the case of State of H.P. Vs. Keshav Ram & others(
1996) 11 SCC 257, which lays down that an entry in the revenue
papers cannot form basis of declaration of title. While there is no
dispute about this principle of law, there is no occasion for this Court
to consider the same for it's application or otherwise in review
jurisdiction. Doing so would amount to rehearing the appeal on
merits, which is not permissible under this jurisdiction.
26. Learned Counsel for the applicants has further submitted
that it is well settled law that merely on the basis of admissions, title
cannot be held to be established. In support, he refers to the law laid
down by the Hon'ble Supreme Court in the case of Union of India Vs.
Purushotam Dass Tandon & another reported in 1986 (Supp) SCC
720. With due respect, it must be stated here that the Hon'ble
Supreme Court in this case has not laid down as a preposition of law
that in all cases clear and unambiguous admissions cannot be used as
reliable pieces of evidence to record a finding about title of a person.
The Hon'ble Supreme Court has held that the admissions before being
relied upon must be unambiguous and must not be vague and if there
is any ambiguity or vagueness, then, it is obligatory upon the party
relying upon them to put them to a witness before they can be used.
Therefore, I find no substance in the argument that admissions can
never be used to record a finding about title. That apart, this is not
something which can be considered by a Court in exercise of review
jurisdiction. This is a matter of merits and therefore would have to be
considered by the appropriate Court in appeal.
27. In the result, I find that review application cannot be
allowed. The point is answered accordingly.
I. The review application stands dismissed.
II. In the circumstances of the case, there shall
be no order as to cost.
III. At this stage, learned Counsel for the
applicants has prayed for continuation of the
interim stay to the effect and operation of
the decrees passed by the courts below for a
period of eight weeks to enable the
applicants to approach the Hon'ble Supreme
Court in the matter.
IV. The request has been strongly opposed by
learned Counsel for the nonapplicants
on
the ground that the applicants have been
deprived of by the possession for a very long
period of time and that this would result in
keeping them out of the possession for a
more period of time, even though they have
succeeded in securing the relief.
V. Considering the fact that interim stay was
already in operation, I do not think that
continuation of the same for some more
period of time would really cause any
prejudice to the rights of the nonapplicants.
Therefore, it would be in the interest of
justice that the prayer so made is granted
and accordingly interim stay is continued for
a further period of eight weeks from the date
of the order.
JUDGE
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