(Review Application No. 28351 of 2018)
1. Heard Sri Sudhir Pande along with Sri Lalit Kishore Pandey, learned counsels for the review-applicant.
2. This review application has been filed by the defendant-appellant in the second appeal.
3. Regular suit no. 465 of 2002 (Mahaveer vs. Gokaran and Ors.) filed by the plaintiff-respondent no. 1, was dismissed by the learned Additional Civil Judge (Junior Division), court no. 3, Sitapur, vide judgment and decree dated 07.04.2015. The regular civil appeal No. 40 of 2015 filed by the plaintiff-respondent was allowed and the suit was decreed by the learned Additional District Judge, court no. 10, Sitapur vide judgment and decree dated 11.10.2017.
4. Challenging the appellate decree, the defendant-appellant filed second appeal No. 518 of 2017, which was dismissed by this Court at the admission stage, vide judgment & decree dated 24.11.2017.
5. In the second appeal, the question for consideration was "whether the lower appellate court has committed any illegality in allowing the appeal and not considering the provisions of Section 331 of the U.P.Z.A. & L.R. Act while deciding the appeal, which was the sole contention raised before the learned Single Judge.
6. This Court, held that no such objection regarding maintainability on the basis of Section 331 of U.P.Z.A. & L.R. Act was taken by the defendant-appellant and placed reliance on the full Bench decision of this Court in Ram Padarath and Ors. vs. Second Addl. District Judge, Sultanpur and Ors. [1989 AWC 290 All.], wherein it was held that the defendant-appellant cannot be permitted to raise the issue of maintainability in the second appeal because no such objection was raised before the courts below. In view thereof, the second appeal was dismissed as involving no substantial question of law.
7. Vide order dated 25.08.2021, the defendant-appellant/review applicant, on his prayer, was granted time to file supplementary affidavit to bring on record the written statement, which was filed along with C.M. Application No. 112182/2021
8. Sri Sudhir Pande, learned counsel for the review-applicant, submits that the plea of bar of jurisdiction in the civil court was raised before the trial court. In this respect, he has referred to para 9 of the written statement and consequently submits that the judgment dated 24.11.2017 under review suffers from apparent error of law.
9. Para 9 of the written statement is in reply to para 9 of the plaint. Para 9 of the written statement reads as under:-
"धारा 9 - गलत है I दावा गलत दायर किया गया है I"
10. Para 9 of the plaint reads as under:-
"धारा 9 - यह कि वाद का कारण दिनांक 22.07.02 व 29.07.02 को तथा उसके पश्चात प्रत्येक दिन जब प्रतिवादी सं० 1 मृतक ता 3 द्वारा वादी की अ.ब.स.द. भूमि पर निर्माण कार्य करके कब्ज़ा करने के उद्देश्य से क्रमशः नपाई की गयी तथा नींव खोदने का प्रयास किया गया स्थान ग्राम कंजा शरीफपुर परगना व तहसील लहरपुर जिला सीतापुर न्यायालय की अधिकारिकता में उत्पन्न हुआ I"
11. From perusal of the plaint and the written statement, it is evident that any plea regarding bar of the suit in the civil court being barred by Section 331 of the U.P.Z.A & L.R. Act was not raised.
12. On specific query put to Sri Sudhir Pande, during arguments, if there was any material on the record of the Second Appeal before the learned Single Judge, which evidenced that the plea of bar of jurisdiction in the civil court was raised in the trial court, as provided by Section 331 of the U.P.Z.A & L.R. Act, he fairly submitted that there was no such material.
13. Sri Sudhir Pande has further submitted that the dispute being with respect to agriculture property, suit was not maintainable in the civil court which ought to have been filed in the revenue court. The suit was barred by Section 331 of the U.P.Z.A. & L.R. Act. Consequently, the decree passed by the civil court being without jurisdiction is nullity and the plea of nullity can be raised at any stage, even in execution of proceedings, and as such, such an objection deserved consideration in Second Appeal even if the objection to the jurisdiction of the civil court was not taken in the trial court. He has placed reliance in judgment of Hon'ble Supreme Court in the cases of Pyarelal vs. Shubhendra Pilania (Minor) [(2019) 3 SCC 692], National Institute of Technology vs. Niraj Kumar Singh [(2007) 2 SCC 481] & Kiran Singh and Ors. vs. Chaman Paswan and Ors. [ AIR 1954 SCC 340].
14. Sri Sudhir Pande has further placed reliance on Order 7 Rule II(d) and Order 14 Rule 2(2) of the Civil Procedure Code, 1908 to submit that the question of jurisdiction should have been decided as preliminary issue and the burden of proof was wrongly placed on the appellant, on the point of possession.
15. On specific query made to Sri Sudhir Pande, as to whether any argument, as is being sought to be raised in review application and noted in above paragraphs was advanced before the learned Single Judge, in second appeal, he fairly admitted that those submissions were not made before the learned Single Judge in the second appeal.
16. The basic principles in which review application can be entertained and cannot be entertained have been eloquently laid down by Hon'ble the Apex Court in the case of Kamlesh Verma vs. Mayawati [(2013) 8 SCC 320]. Paragraph 20 under the heading "summary of principles" is being reproduced hereunder:-
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
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.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275] 20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
17. In the case of Perry Kansagra v. Smriti Madan Kansagra [(2019) 20 SCC 753], the Hon'ble Apex Court on the scope and power of review has reiterated the same principles. It is apt to reproduce paragraph nos. 14 to 16, which are as under:-
14. The issues that arise for our consideration can broadly be put under two heads:
14.1. (a) Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment?
14.2. (b) Whether the High Court was correct in holding that the reports of the Mediator and the Counsellor in this case were part of confidential proceedings and no party could be permitted to use the same in any court proceedings or could place any reliance on such reports?
15. As regards the first issue, relying on the decisions of this Court in Inderchand Jain v. Motilal [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] , Ajit Kumar Rath v. State of Orissa [Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 : 2000 SCC (L&S) 192] and Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715], it was submitted by the appellant that the exercise of review jurisdiction was not warranted at all.
15.1. In Inderchand Jain [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] it was observed in paras 10, 11 and 33 as under: (SCC pp. 669 & 675) "10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this Court held: (SCC p. 251, para 56) '56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.'
33. The High Court had rightly noticed the review jurisdiction of the court, which is as under:
''The law on the subject--exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarised as hereunder:
(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.' In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied."
15.2. In Ajit Kumar Rath [Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 : 2000 SCC (L&S) 192] , it was observed: (SCC p. 608, para 29) "29. In review proceedings, the Tribunal deviated from the principles laid down above which, we must say, is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy had been finally decided. This, we are constrained to say, is not the scope of review under Section 22(3)(f) of the Administrative Tribunals Act, 1985...."
15.3. Similarly, in Parsion Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715] the principles were summarised as under: (SCC p. 719, para 9) "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 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 C.P.C. 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".
16. On the other hand, reliance was placed by the respondent on the decision in BCCI v. Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] to submit that exercise in review would be justified if there be misconception of fact or law. Para 90 of the said decision was to the following effect: (SCC p. 765) "90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."
18. From the aforesaid judgment, it is evident that review proceedings are not by way of appeal. It cannot be treated like an appeal in disguise. A rehearing of the matter is not permissible in law. It is not for an erroneous decision to be ''reheard and corrected' in review jurisdiction.
19. In the case of B.H. Prabhakar and Others vs. M.D. Karnataka State Cooperative Apex Bank Ltd. [(2000) 9 SCC 482], Hon'ble Supreme Court has held that the contention which was not canvassed before the Court when the impugned decision was rendered cannot be made the subject-matter of review proceedings. It is relevant to reproduce the said judgment as follows:-
"We have carefully gone through the common judgment sought to be reviewed in these petitions. In our view, no error, much less any patent error, of law could be demonstrated by the review petitioners for supporting these petitions. The resolution of 07th August 1985 was held not to be operative on the facts of the case. In the Review Petitions an attempt is made to show that resolution of 07th August 1985 was the basis of the appointment of the petitioners. That has not been accepted by the Court. An attempt to re-argue this aspect does not fall within the scope of the review proceedings. So far as the affidavit of Manager, Legal Cell dated 10th August 1996 is concerned it was never pressed in service before the Court when the impugned judgment was rendered. Hence, non-consideration thereof cannot be treated to be an error apparent on the record as tried to be suggested. Policy adopted by the Respondent-bank alleged to be anti-labor for which reliance is placed on the decision of this Court in the case of Dharwad Distt. P.W.D. Literate Daily Wage Employees Assn. v. State of Karnataka also cannot be made subject-matter of review proceeding as no such contention was canvassed before the Court when the impugned decision was rendered. On the other hand the petitioners were absorbed as Clerks by the Respondent-bank after their temporary tenure ended on completion of earlier project. That may be the reason why no allegation was made about anti-labor policy of the Respondent-bank when appeals were argued before the Court. For all these reasons, the Review Petitions are dismissed on merits."
20. In view of the aforesaid, the review applicant cannot be permitted to raise the new grounds/arguments in review jurisdiction, which was not canvassed in the second appeal.
21. The judgment dated 24.11.2017, does not suffer from any apparent error of law or on any other ground legally permissible for exercise of review jurisdiction.
22. For the aforesaid reasons, the review application is devoid of merit and is rejected.
Order Date :- 22.09.2021 Nitesh