JUDGMENT S.N. Srivastava, J.
1. The defendant-appellant has preferred this review petition in which is impugned the judgment of this Court dated 28.12.2004, rendered by Hon'ble B. K. Rathi, J, whereby second appeal was dismissed holding that no substantial question of law arose for decision.
2. Initially, a preliminary objection was brought to bear assailing the jurisdiction of this Court which was a Court presided over by a Judge other than the Judge who decided the second appeal and therefore, arguments were heard and the preliminary objection was disposed of by means of order dated 31.3.2005 in which plea was upheld that review was maintainable. The case was set down for hearing on merit on sustainability of review petition on grounds as envisaged in Order XLVII, Rule 1, C.P.C. for today. It is today that the matter has been heard on merit at prolix length.
3. A brief resume of necessary facts is essential for proper appreciation of the dispute involved in this case. It would appear that a suit was instituted by the plaintiff-appellant for specific performance on the basis of agreement to sale attended with further relief to deliver possession of the property in question. The plaintiff set up a case that defendant Ram Prasad had executed an agreement in favour of plaintiff Jagjit Singh on 3.8.1975, for sale of property in question agreeing to a consideration of Rs. 40,000 out of which a sum of Rs. 30,000 was accepted by the defendant No. 1 and the balance was agreed to be paid at the time of execution of sale-deed. It is alleged that plaintiff was delivered possession of the property in question after receipt of Rs. 30,000. It is further alleged that the defendant No. 1 dodged the issue of execution of sale-deed and subsequently, executed sale-deed in favour of defendant No. 2. As a result, the deceased plaintiff Jagjit Singh served a registered notice and when it elicited no response, he instituted the suit aforestated. The defendants filed a joint written statement repudiating the plaint allegations and denying execution of agreement to sale as well as receipt of consideration. It was pleaded by them that the document was forged and unenforceable in law and it was also refuted that it bore signatures of defendant No. 1.
4. The trial court framed as many as seven issues and in ultimate analysis, dismissed the suit by means of judgment and decree dated 27.1.1984. The plaintiff, thereafter, preferred an appeal, which culminated in being allowed, vide judgment and decree dated 21.9.2001, attended with direction to execute sale-deed in terms of agreement excepting plot Nos. 1235, 1236, 1239, 1306 and 1407. It is in this backdrop that the second appeal came to be preferred in this Court. As stated supra, the second appeal was dismissed in limine by Hon'ble B. K. Rathi, J., by means of judgment dated 28.11.2001. The judgment dated 28.11.2001 rendered by Hon'ble B. K. Rathi, J., is excerpted below :
"Hon. B. K. Rathi, J.
The suit was filed by respondent Nos. 1 and 2 for specific performance of contract for sale against the appellants Smt. Rajpati Devi and her father Ram Prasad Singh, who has since died. The suit was dismissed by the trial court. The first appellate court has allowed the appeal and decreed the suit for specific performance of contract for sale. Aggrieved by it, this second appeal has been preferred.
I have heard Sri R. K. Ojha, learned counsel for the appellant and Sri R. N. Upadhyaya, learned counsel for the respondents Nos. 1 and 2.
It is contended that the agreement was unilateral and it was not signed by the purchasers. However, the learned counsel for the appellant could not show that the agreement to sale should be bilateral.
The next question is that prior to the agreement of sale certain plots were already transferred by the defendants. The plaintiff respondents, therefore, requested that they forego claims regarding those plots and the suit may be decreed regarding other plots for the agreed consideration. Therefore, there is also no illegality in the order for specific performance of contract for sale.
The other facts argued are factual regarding the execution of the deed and payment of the consideration.
The second appeal cannot be admitted on facts. No substantial question of law arise for decision in this appeal.
The appeal is accordingly dismissed."
5. Learned counsel for the appellant premised his submission by arguing that the judgment of this Court dated 29.11.2001, wears the taint of an error of law apparent on the face of record and therefore, there is substantial reason writ large for review. He also referred to trial court judgment to bring home the point that trial court on consideration of the opinions of two handwriting experts examined by the parties, converged to believe the opinion of the handwriting expert examined by defendant and disbelieved the opinion of handwriting expert examined by the plaintiff and in ultimate analysis, recorded a finding that there was no similarity between the disputed and admitted signatures. The learned counsel also canvassed that finding on question of execution of agreement to sale was rightly recorded on consideration of oral as well as documentary evidence including the appraisal of opinions of two handwriting experts examined in the case but the lower appellate court ignored altogether the opinions of the handwriting experts while deciding the appeal and arrived at a conclusion by ignoring such material evidence which constituted substantial question of law and ought to have been framed in the second appeal. He further canvassed that while considering the question of execution of deed, the learned single Judge has recorded a finding that other arguments as to the execution of deed and payment of consideration are factual and second appeal cannot be admitted on facts and it, proceeds the arguments, is thus manifested that though substantial question of law was urged before the second appellate court but the Court has erred in holding otherwise. The learned counsel also relied upon a decision of the Apex Court in Green View Tea and Industries v. Collector, Golaghat, Assam and Anr., , and urged that mistake being apparent on the face of record, it is a fit case for review by the Court. Per contra, learned counsel appearing for the opposite parties contented that judgment of this Court while dismissing the second appeal does not make out a case of error of law apparent on the face of record and therefore, it is not a fit case for review. He further contended that this Court is wholly incompetent to interfere with the finding sitting in review over the judgment of this Court. In order to bolster up his contentions that Court cannot re-appreciate the entire evidence by reversing the finding of the appellate court, the learned counsel relied upon a decision in and AIR 2000 SC 1650. The learned counsel further urged that error apparent on the face of record means an error, which strikes one by mere looking at it and does not require any long process of reasoning on the point. He also relied upon a decision in and contended that other Judge is wholly incompetent to review the finding recorded by a previous Judge sitting in judgment over the decision of Judge who decided the second appeal and construed the document. The learned counsel also contended that mistake apparent on the face of record cannot mean an error, which has to be fished out, and searched. He further contended that phrase "for any other sufficient reason" used in Order XLVII, Rule 1 of the C.P.C. should be interpreted as meaning a reason sufficient on grounds at least analogous to those specified in the rule. He further contended that even if opinion of experts was omitted from consideration, the finding could be maintained from other evidence and this cannot be a ground for review.
6. I have bestowed my anxious considerations to the respective submissions made across the bar by the learned counsel for the parties.
Error apparent on the record :
7. As specified in Order XLVII, Rule 1 of the C.P.C. a review is restricted to (1) discovery of new and important evidence matter, which could not be produced at the time of hearing, (2) error apparent on the face of the record and (3) for any other sufficient reason. Main brunt of the argument of the learned counsel for the appellant hinges on 'error apparent on the face of the record'. Review, it is well enunciated, is not a routine procedure and the party seeking review must prove the material error manifest on the face of order resulting in miscarriage of justice. It is also settled by a catena of decision that no error could be said to be apparent on the face of the record if it was not self evident and if it required an examination or argument to establish it. With the above principles bearing in mind, I proceed to scan the decision of the trial court as also the appellate court in order to appreciate whether the decision of lower appellate court suffers from an error of law in ignoring the evidence of the two hand-writing experts which was vital and was elaborately discussed and deliberated by the trial court and whether it constituted ground for review considering the expression "error apparent on the face of the record".
8. There are certain decisions in which the expression "error apparent on the face of the record" has been dealt with and explained. The first decision on the point is Hari Vishnu Kamath v. Ahmad Ishaque, (1995) 1 SCR 1104. In this case, it has been enunciated that an error apparent on the record must be one which is manifest on the face of the record. At the same time, the Court also observed that the real difficulty is not so much in the statement of principle as in its application to the facts of a particular case. In Syed Yakoob v. Radha Krishna, , the Apex Court observed that it is neither possible nor desirable to attempt either to define or to describe adequately cases of errors which can appropriately be described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law apparent on the face of the record must always depend on the facts and circumstances of the case and upon the nature and scope of legal provision, which is alleged to have been misconstrued or contravened.
9. It would thus appear that expression any error apparent on the record should be determined in the light of the facts and circumstances of each case. However, from the discussion of the above case-laws, it appears to be well-settled that an error can be said to be an error apparent on the face of the record, if it is patent, manifest or self-evident.
Substantial question :
10. What is substantial question of law has to be gleaned from a discussion of the following decisions.
11. In Suresh Kumar v. Town Improvement Trust, Bhopal, , the Hon'ble Supreme Court while dealing with the question of compensation under the Land Acquisition Act, quintesseritially held that in an appeal under Article 136 of the Constitution of India involving the question of valuation of acquired land, Supreme Court will not interfere with the award unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied. In S.V.R. Mudaliar and Ors. v. Mrs. Rqjabu F. Buhari and Ors., , the Apex Court observed that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. The Apex Court also quoted the view stated by the Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, (1906) 10 CWN 630, wherein while regarding the appellate judgment of the High Court of Judicature as careful and able, it was stated that it did not come to close quarters with the judgment which it reviews and indeed never discusses or even alludes to the reasoning of the subordinate Judge. In Dilbagrai Punjabi v. Sharad Chandra, , the Apex Court while dealing with M. P. Accommodation Control Act held that the Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. It was a case in which lower courts had without considering the tenant's admission of the landlord's title to disputed property as contained in his reply to the notice given by the landlord and in the numerous rent receipts issued by the landlord, recorded the finding that the landlord had failed to establish his ownership to the disputed property. In a recent decision in State of Punjab v. Mohinder Singh, 2005 AIR SCW 1476, the Apex Court was seized of dispute relating to date of birth. In the case the stand of the respondent was that the date of birth was entered in the service record by relying on the horoscope and he claimed that both school leaving certificate and the horoscope were produced and the date of birth was recorded by relying on the horoscope. The Apex Court observed that apart from the fact that there was no effort to reconcile the discrepancy in the so called horoscope and the school record is a factor which has rightly been taken note of by the trial court and without any plausible reason the first appellate court took a different view. The Apex Court observed that the school records have more probative value than a horoscope. Where no other material is available, the horoscope may be considered but subject to its authenticity being established. These aspects were not considered by the first appellate court and the High Court. The Apex Court further observed that since the first appellate court acted on irrelevant materials and left out of consideration relevant materials, question of law was involved. The Apex Court also observed that the High Court was therefore not justified in dismissing the second appeal by observing that there was no substantial question of law involved.
12. From a perusal of the judgment of the trial court it is evident that in order to prove respective pleading, i.e., whether the agreement to sale bore signatures of the defendant No. 1 as pleaded by the plaintiff, the trial court scanned the opinions of the two experts produced and examined by the parties in suit. The trial court, it would appear, disbelieved the opinion of handwriting expert examined by plaintiff and believed the opinion of handwriting expert examined by the defendant No. 1 and oh that basis, converged to the conclusion that the document in question did not bear signatures of defendant No. 1. The trial court also reckoned with other evidence both oral and documentary which were tangential to the conclusions arrived at by the trial court and held that the agreement to sale neither contained signatures of the defendant No. 1 nor executed by him. On the other hand, from a close scrutiny of the finding of the lower appellate court, it does not appear that the court below reckoned with this material aspect in upsetting the finding of the trial court. In my considered view, evidence of the two hand-writing experts was of pivotal importance, which goes to the roots and non-consideration thereof in his judgment by the lower appellate court leaves an imprint of error apparent on the face of record and also gives rise to a substantial question of law on the aspects of execution of agreement to sale and payment of consideration to the defendant No. 1. Learned counsel for the respondents faltered and could not pinpoint from the judgment of the appellate court whether the lower appellate bestowed anxious consideration to the evidence of the hand-writing experts. Therefore, it follows that the lower appellate court altogether eschewed from consideration the evidence of the experts which was so material to be taken into consideration in the facts and circumstances of the case. While deciding the second appeal in limine, the learned single Judge noticed two aspects. The first aspect considered by the learned Judge was whether the agreement was unilateral or bilateral and proceeded to observe that the learned counsel for the appellant could not show that the agreement to sale should be bilateral. The next question considered by the learned single Judge was that prior to the agreement of sale certain plots were already transferred by the defendants. It was also stated that plaintiff respondents requested that they forego claims regarding those plots and the suit may be decreed regarding other plots for the agreed consideration and in consequence held that there is no illegality in the order for specific performance of contract for sale. In my considered view, the evidence of two experts and other allied evidence on record as considered by the trial court were very material which lower appellate court did not take into reckoning and proceeded to upset the finding on re-appreciation of evidences without considering the evidence of pivotal importance on record. Therefore, the question that the lower appellate court omitted from consideration the evidence of two hand-writing experts is a question of pivotal significance and the learned single Judge while dismissing the second appeal in limine neither noticed nor considered the question which in fact was a substantial question of law and therefore, in the facts and circumstances, it is a fit case for review by reason of an error of law apparent on record.
13. Coming to grips with the decisions cited across the bar by the learned counsel for the respondents, I would confine myself to saying that decisions cited across the bar are illuminating but they did not squarely apply to the facts of this case.
14. As a result of foregoing discussion, I am of the view that it is a fit case for review.
15. In the result, review petition is allowed. In consequence, judgment and order dated 28.11.2001, passed by this Court dismissing the appeal in limine is set aside. In the facts and circumstances of the case there would be no order as to costs.
16. In the course of hearing, an objection having completion of preliminary objection was agitated by the learned counsel for the respondents centering on maintainability of review petition by this Bench.
17. The facts anteceding the review petition are that by judgment dated 28th November, 2001, Mr. Justice B. K. Rathi, dismissed the second appeal in limine. It was followed by filing of review petition, which came to be listed on 7th February, 2002, on which date, Mr. Justice B. K. Rathi, passed the following order :
"Heard Sri A. N. Bhargava learned counsel for the applicant. The affidavit in support of the review application may be filed within three days. Also issue notices."
On 6.9.2002 again, the case came to be listed before the self-same learned single Judge who had earlier dismissed the second appeal. The order of date is reproduced below :
"Heard Sri A. N. Bhargava for the appellant and Sri R. N. Upadhyay for respondents. Call for record as requested by Sri A. N. Bhargava. However, during the pendency of this application, the execution shall not be stayed."
It would appear from the record that the case was listed before several Benches and ultimately ; the case has been assigned to this Bench by nomination ordered by Hon'ble the Chief Justice by means of order dated 22.3.2005.
18. Sri A. N. Bhargava, learned counsel for the appellant canvassed that from the materials on record, it is eloquent that a clear case for review is made out. Per contra, Sri R. N. Upadhyay, learned counsel for the respondents as stated supra, raised an objection having complexion of a preliminary objection relying at the same time on a decision in Devaraju Pillai v. Sellayya Pillai, , to the effect that this Court has no jurisdiction to hear review petition canvassing that the Judge who had dismissed the second appeal earlier, has since retired and now the only remedy available to application for review is by way of filing an appeal against the judgment of learned single Judge before the Apex Court. Refuting the aforestated objection, Sri A. N. Bhargava urged that judgment relied upon by the learned counsel for the respondents cannot be called in aid for application to the facts of the present case. He drew attention of the Court to the provisions of Rule 12 of Chapter V of the Rules of Court pointing out that there is a clear provision that in case a Judge is not available, the matter may be placed before Hon'ble Chief Justice for nominating a Bench for hearing of such case. Assailing reliance on the decision of the Apex Court by the learned counsel for the respondents, the learned counsel for the petitioner contended that the Apex Court while deciding the case has laid down that different view on a construction of the document cannot be taken by some other single Judge in review. He further canvassed that the preliminary objection is not sustainable on the above counts and he be permitted to argue the case on merits.
19. Before analytically examining the rival submissions, I feel called to look into the provisions of Code of Civil Procedure as well as the High Court Rules. The High Court Rules have been framed under Article 225 of the Constitution of India to regulate the procedure of the Court. Chapter V of the Rules of Court prescribes the procedure for constitution of Benches, jurisdiction of a single Judge, jurisdiction of Division Bench etc. Rule 12 of Chapter V being germane to the controversy raised before me may be reproduced below :
"12. Application for review.- An application for the review of a judgment - shall be presented to the Registrar, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered along with an office report as to limitation and sufficiency of court fees. If such Judge or Judges or any-one or more of such Judges be no longer attached to the Court, the application shall be laid before the Chief Justice who shall having regard to the provisions of Rule 5 of Order XLVII of the Code, nominate a Bench for the hearing of such applications :
Provided that an application for the review of a judgment of one Judge who is precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a single Judge and that an application for the review of a judgment of two or more Judges, any-one or more of whom is or are precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a Bench consisting of the same or a greater number of Judges.
Explanation.-For the purposes of this rule the expression 'no longer attached to the Court' shall be deemed to include absence from the permanent place of sitting on account of the directions given under Rule 17 of this Chapter, illness or any other cause."
Order XLVII, Rule 5, C.P.C. being also relevant in the context of the controversy involved, are also quoted below :
"Rule 5. Application for review in Court consisting of two or more Judges.-Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which applies for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same."
Coming to the facts of the present case, it would transpire from the record that application for review was presented before Justice B. K. Rathi, who had earlier dismissed the appeal and who after satisfying himself with the grounds taken for review, issued notices. Thereafter, the matter protracted before the said Bench. In the meantime, Justice Rathi retired and thereafter, the matter was placed before some other Bench. Now it has come to this Bench by way of nomination made by Hon. Chief Justice. From a scrutiny of Order XLVII, Rule 5, it would transpire that it envisages presentation of review application before the same Judge. On the other hand, Rule 12 of Chapter V of the Rules of Court clearly prescribes the matter to be heard by other Judge on nomination where the Judge who decided the matter earlier is not available on the permanent seat. In Iridium India Telcom Ltd. v. Motorola Inc. 2005 AIR SCW 138, it has been held that it is incorrect to say that the Letters Patent, and the rules made thereunder by the High Court for regulating its procedure on the original side, were subordinate legislation and, therefore, must give way to the superior legislation, namely, the substantive provisions of the C.P.C. The rules regulating the procedure to be followed on the original side of Chartered High Court are not rules as defined in the C.P.C. 1890. It was further held by the Apex Court that "A Letter Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law." It would thus crystallise that the procedure prescribed in the Rules of the Court was rightly followed by the Chief Justice by passing appropriate orders of nominating this Bench and it cannot be said that this Bench has no jurisdiction to hear the review on merits.
20. Coming to the case law cited by the learned counsel for the respondents, I have carefully gone through it and am of the view that the said decision cannot be called in aid in view of the fact that firstly, the decision has been arrived at without adverting notice of the Apex Court to the provisions of Rule 12 of Chapter V of the Rules of Court and secondly it is distinguishable on the ground that in the present case the matter was presented before the same Bench who issued notice on prima facie satisfaction about the grounds of review and now the matter has come up before this Bench for final hearing. It is not clear from the decision cited across the bar by the learned counsel for the respondents whether review application in that case was presented before the same Judge and it was later-on transferred to another Judge for final hearing but what is clear from the facts enumerated in the judgment is that the matter was placed before some other Bench who decided the same, construed the document differently and held that it was a Will and not a deed of settlement. In view of the above, I am of the view that the decision cited across the bar being distinguishable is unavailing.
21. In the above perspective, the preliminary objection cannot be sustained and is overruled.
22. List this matter for hearing on merits on 4.4.2005.