Over 2 lakh Indian cases. Search powered by Google!

Case Details

RAMESH CHANDRA SHARMA versus U.P.S.E.S.C. & OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Ramesh Chandra Sharma v. U.P.S.E.S.C. & Others - WRIT - A No. 9795 of 1990 [2007] RD-AH 20 (1 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

         Reserved

Civil Misc. (Review) Application No. 4295 of 1984

IN

Civil Misc. Writ Petition No. 9795 of 1980

Smt. Savitri Devi                          .......................Applicant/Petitioner  

   Versus

Shri Lal Chand and Sri Rajendra Kumar

Agarwal since deceased, now both

represented by Sri Vinai Kumar

Agarwal & others                          ...............................Respondents

Hon'ble S. P. Mehrotra, J.

The aforesaid application has been filed on behalf of the respondents under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure, inter-alia, praying for review and recall of the judgment and order dated 17th January, 1984 passed by a learned Single Judge of this Court allowing the aforementioned writ petition filed by Smt. Savitri Devi, the petitioner.

From a perusal of the record, it appears that Lal Chand, Rajendra Kumar Agarwal and Vinai Kumar Agarwal filed a suit against Smt. Savitri Devi (Petitioner in the aforementioned writ petition) for ejectment, arrears of rent, mesne profits etc. in respect of a portion (shop) on the ground floor of the building bearing Municipal No. 26/2, Tilak Road, Dehradun. The said portion (shop) has, hereinafter, been referred to as "the disputed shop".

It was, inter-alia, alleged by the said Lal Chand and others (plaintiffs) that the plaintiffs were the owners / landlords of the property bearing Municipal No. 26/2, Tilak Road, Dehradun, and the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) was a month to month tenant in the disputed shop on the ground floor of the said property on behalf of the plaintiffs at the rate of Rs. 100/- per month as rent and Rs. 6/- per month as Water Tax, total Rs. 106/- per month; and that the provisions of the U.P. Act No. 13 of 1972 ( in short "the Act") were not applicable to the said building including the disputed shop as the period of 10 years had not elapsed since its construction ; and that the tenancy of the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) was determined and terminated through registered AD notice dated 2.11.1978 received by the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) on 8.11.1978 wherein the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) was called upon to quit, vacate and hand over  possession of the disputed shop in her tenancy immediately on the expiry of 30 days from the date of receipt of the notice. The said suit was registered as S.C.C. Suit No. 221 of 1978. A copy of the plaint of the said suit was filed as Annexure 1 to the aforementioned writ petition.

The said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) contested the said suit and filed her written statement dated 5.7.1979, a copy whereof was filed as Annexure 2 to the aforementioned writ petition.

The learned Judge, Small Cause Court / Munsif, Dehradun by the judgment and order dated 6.8.1980 decreed the said suit filed by Lal Chand and others (plaintiffs). It was, inter-alia, held in the said judgment and order dated 6.8.1980 that in view of the judicial decisions, the provisions of the Act would apply to all the buildings which were in existence on the date of enforcement of the Act and as such, the provisions of the Act were applicable to the disputed shop.

It was, inter-alia, further held that the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) did not pay rent with effect from 1.7.1978 till the date of filing of the said suit, despite the said notice dated 2.11.1978, and thus, the rent for more than 4 months was due from the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) on the date of the notice.

It was, inter-alia, further held that the said Lal Chand and others (plaintiffs) were entitled to damages at the rate of Rs. 200/- per month. A copy of the said judgment and order dated 6.8.1980 was filed as Annexure 3 to the writ petition.

Against the said judgment and order dated 6.8.1980, the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) filed a revision under Section 25 of the Provincial Small Cause Courts Act, which was registered as SCC Revision No. 56 of 1980.

By the judgment and order dated 17.10.1980, the learned District Judge, Dehradun dismissed the said revision filed by the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition). It was, inter-alia, held in the said judgment and order dated 17.10.1980 that the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) was in arrears of rent for more than four months, and the amount was not paid inspite of the notice of demand and ejectment; and that the said suit was filed on the basis of default also. It was, inter-alia, further held that the contention of the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) that the provisions of the Act were applicable to the present case, had been accepted by the trial court; and that the provisions of Section 39 of the Act were applicable to the case in which the Act became applicable during the pendency of the suit; and that as such, the contention of the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) claiming benefit of Section 39 of the Act was without force. It was, inter-alia, further held that the contention of Smt. Savitri Devi (Petitioner in the aforementioned writ petition) that the mesne profits awarded at Rs. 200/- per month were excessive, had no force. A copy of the said judgment dated 17.10.1980 was filed as Annexure 5 to the writ petition.

Thereafter, the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) filed the aforementioned writ petition, namely, writ petition No. 9795 of 1980, inter-alia, praying for quashing the said judgment and order dated 6.8.1980 and the said judgment and order dated 17.10.1980.

Counter affidavit and rejoinder affidavit were exchanged between the parties in the aforementioned writ petition.

By the judgment and order dated 17.1.1984, a learned Single Judge of this Court allowed the aforementioned writ petition. The operative portion of the said judgment and order dated 17.1.1984 is quoted below:

"In the result this petition succeeds and is allowed. The order passed by the two courts below granting decree for ejectment is quashed. Parties shall bear their own costs".

It was, inter-alia, held by the learned Single Judge as follows :

"1.  It may be that on facts found petitioner was in arrears of four months on the date of suit but that alone was not sufficient as petitioner should not only have been in arrears of rent for not less than four months but should have failed to pay the same to the opposite party within one month from the date of service upon him of a notice of demand. No such notice was served on petitioner. The question of failure to pay therefore did not arise.

2.  Benefit of Section 39 of Act XIII was not extended to  petitioner as, according to revising authority, it was her claim that building was governed by U.P. Act XIII of 1972 was accepted whereas this Section applied to building to which the provision become applicable after filing of the suit. Although the trial court held that proviso of U.P. Act XIII of 1972 were applicable on strength of Ratan Lal Singhals case but in view of subsequent decision by the Full Bench and affirmed by Supreme Court it stands established that the provisions applied to only those buildings which had completed ten years from the date of completion."

3.  "It having been found that building was assessed for the first time in October 1970 it completed ten years during pendency of revision and the revising authority committed error of jurisdiction in refusing to extend benefit of Section 39"

Thereafter, the aforesaid review application No. 4295 of 1984 was filed on behalf of the said Lal Chand and others (plaintiffs) (which were respondents in the aforementioned writ petition).

By the order dated 24.5.1985, notice was directed to be issued on the said review application.

It further appears that during the pendency of the aforesaid review application, the said Lal Chand (who was respondent No.1 in the aforementioned writ petition) and Rajendra Kumar Agarwal (who was Respondent No.2 in the aforementioned writ petition) died. Thereupon, the said Vinai Kumar Agarwal (who was Respondent No. 3 in the aforementioned writ petition) filed a substitution application No. 37016 of 1997. By the order dated 9.1.2002 passed on the said substitution application, it was directed that the names of "Lal Chand and Rajendra Kumar Agarwal shall be deleted and a note be made there that Vinai Kumar Agarwal is already on record". Pursuant to the said order dated 9.1.2002, a note as directed was made on the aforementioned review application.

A counter affidavit sworn on 25th August, 1986 was filed on behalf of the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) in reply to the aforesaid review application.

A rejoinder affidavit sworn on 21st November, 2001 was filed by the said Vinai Kumar Agarwal (Respondent in the aforementioned writ petition) in reply to the said counter affidavit filed in the review matter.

I have heard Sri Rajesh Tandon, learned senior counsel assisted by Sri Som Narain Mishra, learned counsel for the respondent- Vinai Kumar Agarwal in the aforementioned writ petition and Sri Aditya Narain Singh, learned counsel for the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition).

It is submitted by Sri Tandon, learned senior counsel appearing for the respondent - Vinai Kumar Agarwal that the position of law as obtaining on the date of the judgment of the learned single Judge of this Court, namely 17th January, 1984 was as follows:

"(a)      The exemption given in Section 2(2) of the Act exempting a building from the provisions of the Act for 10 years from the date of completion of construction of the building, was applicable to buildings constructed prior to the enforcement of the Act as well as those constructed after the enforcement of the Act. This followed from the decision of a Full Bench of this Court in Gopal Krishna Vs. 5th Additional District Judge, Kanpur and others, 1981 ARC 336 (FB). The said Full Bench considered the conflict between the two decisions of the Apex Court, namely, in Ratan Lal Singhal vs. Smt. Murti Devi, 1979 ARC 507 (SC) and in Ram Swarup Rai vs. Smt. Lilawati Devi,  1980 ARC 466 (S.C.).

(b)      Section 39 of the Act would apply only in respect of those suits which were pending on the date of enforcement of the Act, namely, 15th July, 1972. This followed from the decision of the Apex Court in Om Prakash Gupta vs. Digvijendra Pal Gupta, 1982 (1) ARC 391 (S.C.)= 1982 (8) A.L.R. 242 (SC) = AIR 1982 SC 1230 (2).

(c)       In case there is an assessment made in respect of a building, the date of first assessment of the building would be the date of completion of construction of the building in view of Explanation I to Section 2(2) of the Act. This followed from the decision of the Apex Court in Om Prakash Gupta case (supra).

It is submitted that from the aforesaid legal position, it followed that if the suit was filed subsequent to the date of the enforcement of the Act, namely, 15th July, 1972, and the building was not covered under the provisions of the Act at the time of filing of the suit, then Section 39 of the Act would not apply to such a building even if the period of 10 years from the date of completion of construction of the building (i.e. from the date of first assessment of the building) expired during the pendency of the said suit or the proceedings arising out of the said suit.

Keeping in view the aforesaid legal position as obtaining on the date of the judgment of the learned Single Judge of this Court, namely, 17th January, 1984, it is submitted that the said judgment suffered from an error apparent on the face of the record.

It is submitted that in the earlier part of the judgment dated 17th January, 1984, it was noticed that the date of first assessment was in 1971, but in the latter part of the judgment, it was observed that the building was assessed for the first time in October, 1970, and it completed 10 years during the pendency of the revision. The revision, it is submitted, was decided on 17.10.1980. It is further submitted that as, in fact, the date of first assessment was in 1971, the building in question completed 10 years in the year 1981, when the revision had already been decided on 17.10.1980. It is submitted that in view of an apparent error on the face of the record, in the latter part of the judgment, where it was observed that the building was for the first time assessed in October, 1970, the judgment dated 17th January, 1984 proceeded to hold that the building in question completed 10 years during the pendency of revision, and that the Revising Authority committed error of jurisdiction in refusing to extend the benefit of Section 39 of the Act.

It is further submitted by Sri Tandon that it is true that in Vineet Kumar Vs. Mangal Sain Wadhera, 1984 Supreme Court and Full Bench Rent Cases 156 = (1984) 3 S.C.C., 352 = AIR 1985 SC 817, a Bench consisting of two Hon'ble Judges of the Supreme Court laid down that if the period of 10 years mentioned in Section 2 (2) of the Act expired during the pendency of litigation then the Act would become applicable to the case, and the tenant would be entitled to claim the benefit of Sections 39 and 40 of the Act. However, the submission proceeds, the decision of the Apex Court in Om Prakash Gupta (supra) which was given by a Bench consisting of three Hon'ble Judges of the Supreme Court laid down that Section 39 of the Act would apply only to a case where the suit was pending on the date of commencement i.e. 15th July, 1972. Hence, in view of the said decision, the submission proceeds, even if 10 years expired during the pendency of litigation, the Act would not become applicable unless the suit was pending on the date of commencement of the Act, namely 15th July, 1972.

It is further submitted by Sri Tandon that in Nand Kishore Marwah and others. Vs. Smt. Samundari Devi, 1987 Supreme

Court and Full Bench Rent Cases 375  = (1987) 4 S.C.C. 382 = 1987 (2) ARC 361 (SC) = AIR 1987 SC 2284 decided by a Bench consisting of two Hon'ble Judges of the Supreme Court, the Supreme Court reiterated its view taken in Om Prakash Gupta case (supra), and held that Section 39 of the Act applied only to such a case where the suit was pending on the date of commencement of the Act, namely, 15th July, 1972. It was further held, the submission proceeds, in Nand Kishore Marwah case (supra) that the provisions of Section 40 of the Act would come to the rescue of the tenant only if the suit from which revision or appeal arose was pending on the date of commencement of the Act i.e. 15th July, 1972.

It was further held by the Supreme Court in Nand Kishore Marwah case (supra) that even if the period of 10 years expired during the pendency of the litigation, the restriction imposed by Section 20 of the Act regarding the suit for eviction being filed only on the grounds mentioned in sub-section (2) of Section 20, would not be attracted to such a case.

It is further submitted by Sri Tandon that in Atma Ram Mittal Vs. Ishwar Singh Punia, 1988 Supreme Court and Full Bench Rent Cases 549 decided by a Bench consisting of two Hon'ble Judges of the Supreme Court, the Supreme Court laid down that if the exemption period of 10 years had not expired when the suit was instituted, then the provisions of Rent Act would not be attracted even if the period of 10 years expired during the pendency of the suit. The exemption, it was held, would continue to be available until the suit was disposed of or adjudicated.

Sri Tandon further submits that the period of exemption of 10 years was to be computed from the date on which the construction of building was completed, and such date was to be determined in accordance with the provisions of clause (a) of Explanation I to sub-section (2) of Section 2 of the Act. It is further submitted that in view of various decisions of the Apex Court interpreting the said clause (a) of Explanation I, the date of completion of construction of the building would be the date of first assessment, and such date would be relevant for computing the exemption period of 10 years. Sri Tandon refers to the decisions of the Apex Court in Om Prakash Gupta case (supra) and Nand Kishore Marwah case (supra).

Sri Tandon submits that in view of the aforesaid legal position, the view of  the learned Single Judge of this Court expressed in the said judgment dated 17th January, 1984 that once the period of 10 years expired, the benefit of Section 39 would be extended to the tenant, was not correct. Hence, it is submitted, the said judgment dated 17th January, 1984 be reviewed and recalled.

In reply, Sri Aditya Narain Singh, learned counsel for the said Smt. Savitri Devi (Petitioner in the aforementioned writ petition) has made the following submissions :-

1.Even if the suit was filed after 15th July, 1972, still the provisions of Section 39 of the Act would apply to the building in case the period of 10 years expired during the pendency of the suit. The tenant, in such a case would be entitled to the benefit of Section 39 of the Act provided he complied with the requirements of Section 39 of the Act within the period mentioned in the said provision. Reference in this regard is made to the observation of the Supreme Court in Shiv Kumar Vs Jawahar Lal Verma and others, AIR 1988 SC  2164 (paragraph 8), wherein the decisions of the Supreme Court in Om Prakash case (supra), Vineet Kumar case (supra) and Nand Kishore Marwah case (supra) were referred to.

         2.        Review Petition has not been filed on the ground that the suit was not pending on 15th July, 1972, and, therefore, Section 39 of the Act would not apply, nor has the review petition been filed on the ground that even if the period of 10 years expired during the pendency of the litigation, the Act would not apply. In fact, review petition has been filed on certain factual aspects. Therefore, the submission proceeds, it is not open to the learned senior counsel for the respondent-Vinai Kumar Agarwal in the aforementioned writ petition to raise any new ground for seeking review of the said judgment dated 17th January, 2003.

        3.       The finding recorded by the learned Judge, Small Cause Court / Munsif, Dehradun that the provisions of the Act were applicable to the disputed shop, was confirmed by the learned District Judge, Dehradun in his judgment and order dated 17.10.1980, and the said finding having not been challenged by the plaintiffs/ respondents in the writ petition, the same operates as res-judicata as against the plaintiffs / respondents. It is submitted that even though the Code of Civil Procedure is not applicable to the proceedings in writ petition but principles of res-judicata under-lying Section 11 of the Code of Civil Procedure are applicable to the proceedings in writ petition. Reference in this regard is made to G. K. Dudani and others Vs. S. D. Sharma and others, AIR 1986 SC 1455 (paragraph 18).

               It is further submitted that the principles of res-judicata apply at different stages of the same proceeding. Reference in this regard is made to  Nirhjhin Kumari and others Vs. Gram Samaj and another, 1980 RD 164 and Narain Das Vs. II Additional District Judge. Moradabad and another, AIR 1999 Alld.  74 (head note ''C').

         4.   Even if there was mistake in assuming the date of first assessment as being October 1970, still if the said judgment dated 17th January 1984 can be sustained on other grounds, then there can be no question of any review of the said judgment dated 17th January 1984. It is submitted that if it can be shown on behalf of the said Smt. Savitri Devi (petitioner in the aforementioned writ petition) that the period of 10 years from the date of completion of construction of the building expired before the judgment in the said revision on 17.10.1980, then there can be no question of any review of the said judgment dated 17.1.1984 notwithstanding the said mistake in assuming the date of first assessment as being in October, 1970. Reference is made to State of Uttar Pradesh & another Vs. Shri Anand Swaroop, AIR 1974 SC 125 (paragraph 10) and Bal Krishna Das Agarwal Vs. Smt. Radha Devi & others, AIR 1989 Alld. 133.

       It is submitted that paragraph 11-A was added by amendment in the written statement filed on behalf of the said Smt. Savitri Devi (petitioner in the aforementioned writ petition), inter-alia, to the effect that the building was constructed in June 1970, but the said averments made in the written statement were not denied by the plaintiffs                    (respondents in the aforementioned writ petition) by filing any replication as is apparent from the order dated 18th July, 1980. It is further submitted that categorical assertions in this regard were made on behalf of the said Smt. Savitri Devi  (petitioner in the aforementioned writ petition) in the counter affidavit filed in reply to the said review application, but the said assertions were not denied on behalf of the respondents by filing any rejoinder affidavit in reply to the said counter affidavit filed on behalf of the said Smt. Savitri Devi (petitioner in the aforementioned writ petition)

      Therefore, it is submitted, the averments made on behalf of the said Smt. Savitri Devi (petitioner in the aforementioned writ petition) that the building was constructed in June 1970, stood admitted by the plaintiffs (respondents in the aforementioned writ petition). Reference in this regard is made to the decision in R.C. Bajpayee and Company Vs. 7th A.D.J., Kanpur Nagar and other, 1994 (1) ARC 532 (head note ''A').

         Moreover, DW-1 in his statement, inter-alia, stated that the disputed shop was constructed in July, 1970.

   In the circumstances, it is submitted, the period of 10 years expired before the judgment in the revision on 17.10.1980, and as such, there is no question of any review of the said judgment dated 17th January, 1984.

4.Explanation I to Section 2 (2) of the Act is only a deeming provision, and this will come into play when there is no direct evidence regarding the date of completion of construction of the building. In case, there is direct evidence or admission regarding the date of completion of construction of the building, there will be no occasion to resort to the deeming provision contained in Explanation I to Section 2(2) of the Act. Reference in this regard is made to the observations of their Lordships of the Supreme Court in Ram Swarup Rai Vs. Smt. Lilawati, 1980 ARC 466 (SC) (paragraph 8 of the said ARC).

As regards, the power of the Court to review its orders, Sri Aditya Narain Singh, learned counsel appearing for Smt. Savitri Devi  (petitioner in the aforementioned writ petition) submits that the order of the High Court may be an erroneous decision on merits of the case, but the same cannot be looked into in exercise of review jurisdiction, which is not an exercise of Appellate jurisdiction, and as such, the review is not permissible for correction of legal aspect. Reference in this regard is made to the decision of the Apex Court in A.T. Sharma Vs. A.P. Sharma, AIR 1979 Supreme Court 1047.

It is further submitted by Sri Singh that no review is permissible on the ground that the decision of a case on question of law on which the order is passed was subsequently reversed by the Supreme Court in subsequent decision. Reference in this regard is made to the following decisions :

A.Smt. Bimla Devi Vs. Ist Additional District Judge and others, AIR 1984 SC 1376.

B.Gyan Chandra Dwivedi Vs. II A.D.J., Kanpur & others, AIR 1987 Allahabad 40 (paragraphs 10,12,13 & 14).

C.Kamla Palace Vs. State of U.P. and others, 1997(1) ARC 633 (DB).

In rejoinder, Sri Tandon, learned senior counsel for the respondent - Vinai Kumar Agarwal reiterates his submissions made earlier. He further submits that the evidence of PW-1 and paper Nos. 54-Ga and 55-Ga showed that the first assessment of the building took place on 1.10.1971. It is further submitted that the finding recorded by the learned Judge, Small Cause Court / Munsif, Dehradun in his judgment and order dated  6-8-1980 that the first assessment of the building took place on                 1-10-1971, was not challenged by the said Smt. Savitri Devi (petitioner in the aforementioned writ petition) in revision, nor was the said finding challenged by the said Smt. Savitri Devi in the aforementioned writ petition.

It is further submitted that the conclusion of the learned Judge, Small Cause Court/ Munsif, Dehradun that the Act applied to the disputed shop was contrary to the judgment of the Full Bench of this Court in Gopal Krishna  case (supra).

It is further submitted that the correct position of law on the date of the judgment of the learned Single Judge of this Court, namely, 17th January, 1984 was that Section 39 of the Act was not applicable if the suit was not pending on 15th July, 1972, and as such, the view expressed by the learned Single Judge of this Court in the said judgment dated 17th January, 1984 was not correct.

As regards, the power of review, it is submitted by Sri Tandon that the High Court is a Court of record and the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record. Reference in this regard is made to the decision of the Supreme Court in M.M. Thomas Vs. State of Kerala and another, J.T. 2000 (1) S.C. 26.

Reference is further made by Sri Tandon to the decision of this Court in Gurubachan Singh Vs. II Additional District Judge, Bulandshahr and another, 1979 ALJ 1097, wherein the expression "for any other sufficient reason" occurring in Order 47 Rule 1 of the Code of Civil Procedure was interpreted.

Reference is further made by Shri Tandon to the decision of this Court in Sardar Hussain and others vs. VIII th Additionl District Judge, Bareilly and others, 1986 (1) ARC 305.

Reference is also made to the decision of this Court in Inayat Elahi Vs. VIII th Additional District Judge, Kanpur Nagar and others, 2001 (42) ALR 245 wherein this Court exercised its power of review on the ground that the order passed dismissing the writ petition in limine suffered from mistake apparent on the face of record.

I have considered the submissions made by the learned counsel for the parties.

Before proceeding to consider the submissions made by the learned counsel for the parties, it is necessary to examine the legal position regarding existence and scope of review jurisdiction.

The first question, which arises, is as to whether the High Court has power to review its order made under Article 226 of the Constitution of India. It is now settled that the High Court has such power. In Shivdeo Singh and others Vs. State of Punjab and others, AIR 1963 SC 1909, their Lordships of the Supreme Court held as follows (paragraph 8 of the said AIR) :

"(8) The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which, in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is no thing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J."

In M. M. Thomas case (supra) relied upon by the learned Senior Counsel for the respondent-Vinai Kumar Agarwal, their Lordships of the Supreme Court considered the question as to whether the High Court could review its earlier judgment given in an appeal under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. It was held as follows (paragraphs 13, 14, 15 and 16 of the Judgment Today):

"13.   In this case we are not concerned with the power of review of the Forest Tribunal. It was the High Court which reviewed its own judgment and so the question is whether the High Court has such power de hors Section 6C(2) of the Act. Power of review conferred on the Supreme Court under Article 135 of the Constitution is not specifically made applicable to the High Court. Does it mean that the High Court has no power to correct its own orders, even if the High Court is satisfied that there is error apparent on the face of the record ?

14.High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders favoured by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar & ors. V. State of Maharashtra & anr. [1966 (3) SCR 744 = AIR 1967 SC 1] a nine Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a court of plenary jurisdiction being the court of record.

15.In Halsbury's Laws of England  (4th Edn. Vol. 10, para 713) it is stated thus:

"The Chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action."

(Though the above reference is to English courts the principle would squarely apply to the superior courts in India also).

16.Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar  (supra) a two Judge Bench of this Court in M.V. Elisabeth and ors. V. Harwan Investment & Trading Pvt. Ltd. (JT 1992 (2) SC 65 = 1993 Suppl. (2) SCC 433 = AIR 1993 SC 1014) has observed thus:

"The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction..............."

      The next question, which arises, is as to what are the principles on the basis of which the power of review is to be exercised by the High Court. In this context, certain principles in regard to the power of Court to review its judgments and orders, which are relevant in the present case, are noted below:

1.       Review cannot be granted on the ground that decision is erroneous on merits. Such a ground is an appropriate ground for appeal, but it cannot be made a ground for application for review. Reference in this connection may be made to the following decisions:

(a)Chandmall Chopra & another Vs. State of West Bengal, AIR 1986 Calcutta 111 (paragraph 6 at page 113).

(b)Rajkumar Ramavtar Chourasia Vs. Mathew Charian Christian, AIR 1984 Bombay 458 (paragraphs 14 and 15 at pages 460-461)

(c)A. T. Sharma Vs. A.P. Sharma and others, AIR 1979 SC 1047  (supra)

In A.T. Sharma case (supra), their Lordships of the Apex Court laid down as follows (paragraph 3 of the said AIR):

"3.       ...............It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

2. That there has been wrong exposition of law or wrong decision on question of law, cannot be a ground for review. Reference in this regard may be made to the following decisions:

(a) Chhajju Ram Vs. Neki and others, AIR 1922 P.C. 112 (at pages 113 -114).

(b) Saphar Sitapati Rao Vs. Chittaluri Sitabayamma     ,

AIR 1933 Madras 662 (at page 664)

(c) Laxman Anandrao & others Vs. Ramchandra Wasudeo

    Agasti, AIR 1938 Nagpur 145 (at pages 146- 147) (DB).

(d) Jagarao Annaji Deshpande Vs. Balwant Tukaram Kalvikar AIR 1938 Nagpur 221(at pages 223-224)(DB)

(d)J.N. Sahani Vs. State, AIR 1956 MB 174 (at page     175)(FB).

(e)Sitaram Vs.  Kaniram & another, AIR 1929 Nagpur     251 (at page 253)(FB)

3. That an erroneous view of law on a debatable point has been taken cannot be a ground for review. Following decisions may be referred to in this regard :

(a) S.P. Awate Vs. C.P. Fernandes and another, AIR 1959 Bombay 466 (paragraph 1 at page 466).

(b) Dev Krishna & another Vs. Dhani Ram Saligram, AIR 1959 MP 217 (paragraph 4 at pages 217 - 218) (DB).

(c ) Iftikar Ahmad  and others Vs. Bharat Kumar and another, AIR 1957 Rajasthan 165 (paragraph 3 at pages 165-166)(DB).

(d) Ram Murti and others Vs. Bank of Patiala, AIR  1951 Pepsu 54 (paragraph 4 at pages 55-56) (DB).

4. That there has been wrong application of law, cannot be a ground for review. Reference in this regard may be made to the following decisions :

(a) G.S. Gupta Vs. Basheer Ahmed and others, AIR 1977          Karnataka 193 (paragraphs 4 and 5 at pages 195-196).

(b) Raj Kumar case, AIR 1984 Bombay 458 (paragraphs 14   and 15 at pages 460-461)(supra).

(c) Thakur Kishun Chand Singh vs. Munshi Makund    Sarup & others, AIR 1938 Allahabad 308  (at page 310).

(d) Chandra Shekhar Vs. Sri Thakurji Maharaj and others, AIR 1935 Allahabad 642(1).

5.    The error or mistake as a consequence of wrong judgment or wrong inference, is not an error apparent on the face of record. Reference in this regard may be made to the following decisions :

(a) Manu Pujhari and another Vs State of Orissa, AIR 1965 Orissa 49 (paragraphs 7, 8 and 9 at pages 52, 53)

(b) Dev Krishna case,AIR 1959 M.P. 217 (Paragraph 4 at pages 217-218) (DB)(supra).

6.      In case, a judgment is based on two or more grounds, and each of the said grounds is sufficient to sustain the said judgment independently of the others, the judgment is not liable to be reviewed even though one of the said grounds is erroneous and the error is apparent on the face of the record. Following decisions may be referred to in this regard :

(a)Ramaswami Padayachi Vs. Shanmugha Padayachi, (1959) 2 Mad. Law Journal 201 (at page 204).

(b)Devji Vasta and others Vs. Dhanji Nanji, AIR 1952 Kutch 45 (Paragraphs 4 and 5 at pages 45, 46).

Keeping the aforesaid propositions in mind, let us now proceed to consider the submissions made by the learned counsel for the parties in the present case.

As is apparent from the submissions made by the learned counsel for the parties noted above, the said submissions basically pertain to the merits of the said judgment dated 17th January, 1984 passed by the learned Single Judge of this Court. While Sri Tandon, learned senior counsel appearing for the respondent-Vinay Kumar Agarwal submits that the views expressed by the learned Single Judge in the said judgment were not correct in view of various decisions of the Supreme Court, Sri Aditya Narain Singh, learned counsel for Smt. Savitri Devi (petitioner in the aforementioned writ petition) submits that the views expressed by the learned Single Judge in the said judgment dated 17th January, 1984 were correct.

In my opinion, while dealing with the review petition, it is not open to the Court to consider and adjudicate upon the correctness or otherwise of the judgment sought to be reviewed. The scope of review is a limited one. The Court while dealing with a review application cannot act as an Appellate Court and consider the merits of the judgment sought to be reviewed. Review cannot be appeal in disguise (See: Lal Mohammad V. S.D.O., Bareilly and another, 1959 ALJ 223). Therefore, it is not necessary to deal with the submissions made by the learned counsel for the parties on the correctness or otherwise of the said judgment dated 17th January, 1984.

Coming now to the basic ground for review raised on behalf of the respondent- Vinay Kumar Agarwal that the date of first assessment was assumed by the learned Single Judge to be October, 1970 while in fact, the first assessment was made in 1971, I am of the opinion that the said mistake was not of any consequence as will be evident from the discussion made hereinafter.

As is evident from a perusal of the said judgment dated 17th January, 1984, the learned Single Judge of this Court was of the view that if ten years' period expired during litigation, the tenant would be entitled to the benefit of Section 39 of the Act.

Shri Tandon submits that correct position in regard to Section 39 of the Act, as existing at the time of the said judgment, was that Section 39 would apply only to a case where suit was pending at the time of commencement of the Act, i.e. 15th July, 1972. It is submitted by Sri Tandon that while it is true that a Bench consisting of two Hon'ble Judges of the Supreme Court laid down in Vineet Kumar case (supra) decided on January 5, 1984 that Section 39 of the Act would apply to a case where ten years expired during litigation, a Bench consisting of three Hon'ble Judges of the Supreme Court in Om Prakash Gupta case (supra) had laid down that Section 39 of the Act would apply, where suit was pending on the date of commencement of the Act, i.e. 15th July, 1972.

In case, the submission of Sri Tandon regarding applicability of Section 39 is correct, the view expressed by this Court in the judgment dated 17th January, 1984 would have to be reconsidered on merit, and in my opinion, this cannot be done while dealing with review petition.

It is note-worthy that the view expressed by the learned Single Judge of this Court was in accordance with the decision of the Supreme Court in Vineet Kumar case (supra). Whether this Court should have followed the decision in Om Prakash Gupta case (supra), as submitted by Sri Tandon, cannot be a ground for review.

The questions as to what was the correct legal position on the date of the said judgment of this Court, namely 17th January, 1984, and further, as to whether the said judgment was in consonance with such legal position, pertain to the merits of the said judgment, and could provide grounds to the respondent for filing appeal. However, these cannot be grounds for reviewing the said judgment.

As regards, the mistake in the said judgment dated 17th January, 1984 in treating the date of first assessment as being October, 1970, I am of the opinion that the said mistake is of no consequence in view of the submission of Sri Tandon that Section 39 could not apply to the present case even if ten years expired as Section 39 of the Act could apply only where suit was pending on 15th July, 1972 while in the present case, the suit (namely, SCC Suit No.221 of 1978) was filed in the year 1978.

Whether the date of first assessment is taken to be October, 1970 or October 1971, it would not make any difference as, in the submission of Sri Tandon, Section 39 of the Act would not apply to the said suit (namely, SCC Suit No.221 of 1978) or the said Revision (namely, SCC Revision No. 56 of 1980) arising there-from, irrespective of the expiry of 10 years, in view of the position of law existing on the date of judgment. This Court, however, was of the view that Section 39 of the Act would apply if ten years expired during the pendency of revision.

Therefore, even if there was any mistake regarding the date of first assessment, it was hardly material as the view of this Court was that Section 39 of the Act could apply to the present case while in view of the position of law on that date, as submitted by Shri Tandon, Section 39 of the Act could not apply to the present case.

The mistake in the said judgment dated 17th January, 1984 in treating the date of first assessment as being October 1970 instead of October 1971, is interwoven with the view of the learned Single judge of this Court that Section 39 of the Act would apply if ten years expired during the pendency of revision. Since the latter, as held above, cannot provide a ground for reviewing the said judgment dated 17th January, 1984, so also the former cannot be a ground for review.

There is one more aspect. Section 2(2) of the Act exempts a building from the provisions of the Act for 10 years from the date of completion of construction of the building. The view of this Court in the said judgment dated 17th January, 1984 was that if the said period of ten years expired during the pendency of litigation, the Act would become applicable to the case. This Court was evidently of the view that on the date, it was dealing with the case, the Act had become applicable. This is why, the learned Single Judge considered the question of default, and held that the ground of default was not established.

Shri Tandon submits that the view of the learned Single Judge of this Court in the said judgment dated 17th January, 1984 that if the period of ten years contemplated in Section 2(2) of the Act expired during the pendency of litigation, then the Act would become applicable to the case, was not correct. Shri Tandon refers to the decisions of the Supreme Court in Nand Kishore Marwah case (supra) and Atma Ram Mittal case (supra), and submits that the correct legal position was that if the exemption period of 10 years had not expired when the suit was instituted, the provisions of Rent Act would not be attracted even if the period of 10 years expired during the pendency of the suit, and the exemption would continue to be available until the suit was disposed of or adjudicated.

The question as to whether the view of the learned Single Judge that if the period of ten years contemplated in Section 2(2) of the Act expired during the pendency of litigation, then the Act would become applicable to the case, was correct or not, pertains to the merit of the said judgment dated 17th January, 1984, and the same would not provide a ground for review. It could provide to the respondent a ground for challenging the said judgment in appeal, but not for reviewing the said judgment.

It is also noteworthy that the decision in Nand Kishore Marwah case (supra) was given by the Apex Court on September 17, 1987, while the judgment in Atma Ram Mittal case (supra) was given by the Apex Court on August 22, 1988. Both the said decisions are subsequent to the judgment dated 17th January, 1984 of this Court sought to be reviewed.

Order XLVII Rule 1 of the Code of Civil Procedure lays down as under :

"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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

[Explanation.-  The fact that the decision on a question of law on which the judgment of the Court is based  has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]"

The Explanation quoted above was added to Order XLVII Rule 1 by the Code of Civil Procedure (Amendment) Act, 1976.

Even though the aforesaid provision of Order XLVII Rule 1 of the Code of Civil Procedure including the Explanation mentioned above, as such, is not applicable to the proceedings in writ jurisdiction under Article 226 of the Constitution of India, but the principle underlying the said provision is applicable to writ proceedings.

In Gyan Chandra Dwivedi case (supra), relied upon by the learned counsel for the said Smt. Savitri Devi, a learned Single Judge of this Court held as follows (paragraphs 9, 10, 11, 12, 13 and 14 of the said AIR):

"9. It will thus be seen that while power of review may be inherent in the High Court to review its own order passed in a writ petition, the same has to be exercised on well recognized and established grounds on which judicial orders are reviewed. For example the power may be exercised on the discovery of some new and important matter or evidence which was not within the knowledge of the parties seeking review despite due exercise of diligence when the order was made. Review can also be sought when the order discloses some error apparent on the face of record or on grounds analogous thereto. These are all grounds which find mention in various judicial pronouncements right from the earliest time as well as in the Rules of O. XLVII of the Civil P.C. as permissible grounds of review.

An Explanation was added to Order XLVII Rule 1 by the amendment of the Civil P.C. by Central Act No. 104 of 1976. It reads :

"The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."

10.  This explanation was added on the recommendation of the law Commission to put an end to the controversy which had arisen as regards whether a judgment could be reviewed merely on the ground that the decision on a question of law on which the same was founded has been reversed or modified by the subsequent decision of a superior Court. Almost all the High Courts, save for the solitary exception of Kerala High Court, were unanimous in their opinion that the fact that the view of law taken in a judgment has been altered by a subsequent decision of a Superior Court in another case could not afford a valid ground for the review of the judgment. (See Liaqat Husain v. Mohammad Razi, AIR 1944 Oudh 198; Lachmi v. Ghisa, AIR 1960 Punj 43; Patel Naranbhai v. Patel Gopaldas, AIR 1972 Guj 229; Venkataswami Raddigar v. Thirukamu Reddiar, (1977) 1 Mad LJ 524).

11.       If, therefore, O. XLVII, R. 1 is applied to the present case, it is apparent that the review petition would be liable to be dismissed upon the plain terms of Explanation to O. XLVII. R. 1. Learned counsel for the Landlord, however, placed strong reliance on Explanation to S. 141 of the Civil P.C. Section 141 enacts that the procedure provided in the Code in regard to suits shall be followed, as far as may be in all proceedings in any Court of civil jurisdiction. Explanation to S. 141 was, however, added by the Central Act 104 of 1976 and it provides :-

"In this section, the expression "proceedings" includes proceedings under O. IX, but does not include any proceeding under Art. 226 of the Constitution."

It was urged that in view of this Explanation, Order XLVII would not apply to writ petitions.

12. I am unable to agree, even if it is assumed that O. XLVII. R. 1 may not in terms apply to review of judgment and orders passed in writ petitions under Art. 226 of the Constitution, I see no reason why the principle underlying the same should not be invoked while considering an application for review of a judgment of a High Court rendered under Article 226 of the Constitution. Clause (C) to O. XLVII, R. 1 merely embodies all those principles which the Courts of law have repeatedly recognized as grounds on which a judgment may be legitimately reviewed. Incidentally, these are also the grounds which find mention in the above quoted decision of the Supreme Court in the case of Aribam Taleshwar Sharma, AIR 1979 SC 1047 (supra) as the grounds on which High Courts may review their judgments and orders passed under Art. 226. Explanation to O. XLVII. R. 1 merely explains and outlines the scope and ambit of the expression, in my view, "error apparent on the face of the record."

13. That being so, I see no ground whatever for not applying the principle underlying the Explanation to O. XLVII. R. 1 to writ petitions also. The Explanation, in my view, enshrines a very salutary principle which is of general application, namely, that finality attaching to judgments ought not to be disturbed except by way of appeal or on recognized grounds of review set out hereinabove and approved by their Lordships of the Supreme Court in the decision cited above.

14. Learned counsel for the landlord also submitted that the pronouncement of the Supreme Court in Smt. Bimla Devi's case, (AIR 1984 SC 1376) is binding on this count under Art. 141 and hence should be given effect to even by way of a review of this Court's judgment. No one can possibly dispute that the pronouncements of the Supreme Court have a binding effect under Art. 141 of the Constitution. However, the law laid down by the Supreme Court can be given effect to only if the matter were at large before this Court in proceedings which may be legitimately pending before it. But as it happens this Court finally parted with the case with the pronouncement of its judgment rendered in 1980.That being so, and in view of the above pronouncement of the Supreme Court which is equally binding on me as regards the Scope of High Courts' power of review, this Court will not be justified in reviewing its judgment on the ground canvassed by the learned counsel for the landlord."  

   

Again, in Kamla Palace case (supra), a Division Bench of this Court held as follows (paragraphs 5, 6 and 7 of the said ARC):

"5. It is settled that this Court can review its judgment given under Article 226 of the Constitution of India if the ground for such a review is made out...................................................."

6. A Division Bench of this Court in Allahabad District Co-operative Bank Ltd. v. Lalji Srivastava, 1996 (1) LBESR 109 (All) (DB), has after considering the decisions of the Hon'ble Supreme Court, held as follows:-

"The grounds on which this Court can review its judgment under Article 226 of the Constitution, are almost the same which have been set out in Rule 1 of Order XLVII of the Code of Civil Procedure (hereinafter referred to as the Code). In fact Supreme Court in Meera Bhanja v. Nirmal Kumar Chaudhury, 1995  (1) SCC 170, has relied upon the case of A.T. Sharma v. A.P. Sharma (supra), while considering the scope of review under Order XLVII, Rule 1 of the Code."

7. We have been informed by the learned counsel for the parties that the S.L.P. filed against the aforesaid decision of the Division Bench has been rejected. Therefore, this Court can review its judgment under Article 226 of the Constitution almost on the same grounds which have been set out in Rule 1 of Order XLVII of the CPC Explanation to the Rule 1 of Order XLVII, which is reproduced below, bars the review of a decision on the ground that the question of law on which the decision is based has been reversed or modified  by the subsequent decision of the Superior Court in any other case.

"Explanation.--The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a Superior Court in any other case, shall not be a ground for the review of such judgment."

In view of the above explanation, the review application filed by the State is not maintainable. Presuming that the said explanation is not applicable to writ jurisdiction, the principles contained therein can and should be applied, while considering an application for review of a decision of this Court given under Article 226 of the Constitution. This Court in Gyan Chandra Dwivedi v. IInd Additional District Judge, Kanpur and others,  AIR 1987 Alld. 40, while holding that it is not permissible to review a judgment on the ground that a question of law on which it is based has been overruled by a Larger Bench or a Higher Court, has relied upon the said explanation and the principle contained therein.............................."  

It is thus evident that the principle underlying the Explanation to Order XLVII Rule 1 of the Code of Civil Procedure is applicable to writ proceedings under Article 226 of the Constitution. Hence, if the decision on a question of law on which the judgment of the High Court in its writ jurisdiction is based, is reversed or modified by a subsequent decision of a Superior Court, then this will not provide a ground for the review of such judgment.

The said principle also implies that if the judgment of the Court has been given taking a particular view of the legal position on the matter, and subsequently a Superior Court takes a contrary view of the legal position on the said matter, then this will not provide a ground for the review of the said judgment.

In M/s A.C. Estates v. M/s Serajuddin and Co. and another, AIR 1966 SC 935, their Lordships of the Supreme Court laid down as under (paragraph 10 of the said AIR):

"10.   ..........................But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event [see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Mad 1 (PC)].

In Syed Liaqat Husain v. Mohammad Razi and others, AIR (31) 1944 Oudh 198, it was laid down as follows (page 199):

"We have heard the learned counsel for the parties at length, and after a careful consideration of the question at issue we have arrived at the conclusion that this review application must be rejected. In order that a mistake or error may constitute a ground under O. 47, R. 1 Civil P.C., for review it must be one apparent on the face of the record and not one which may require extraneous matters to prove the underlying fallacy. Such an error may be one of law, but in order that it may be a valid ground, the law must have been indisputable at the date of the decision which is characterized as erroneous. A view of law taken by a Judge on a debatable point and subsequently found by an authoritative pronouncement to be incorrect is not a mistake apparent on the face of the record so as to entitle the aggrieved party to apply under Order 47, Rule 1, Civil Procedure Code................................ "

In (Danbir Seth) Laxmichand v. Shiamlal, AIR 1959 MP 10, it was held as follows (paragraph 2 of the said AIR):

"2. ...............................................once the decision on an issue is given, the court cannot change it by reviewing it merely because subsequent to the decision, the law on the point has been changed either by statute or by a decision of a Superior Court."

In Board of Revenue and another v. P.K. Syed Akbar Sahib, AIR 1973 Kerala 285, it was laid down as follows (paragraphs 5 and 6 of the said AIR):

"5. ..........In the light of these, we are unable to accept the position that the subsequent decision of the Supreme Court rendered on 30.7.1969 or of the Division Bench given on 15.10.1970 constitutes discovery of "a new and important matter" justifying review."

6. Nor can we regard these as amounting to the discovery of a "mistake" or an "error apparent on the face of the record".

In view of the aforesaid legal position, I am of the opinion that the said judgment dated 17th January, 1984 passed by the learned Single Judge of this Court cannot be reviewed on the ground that the view of the learned Single Judge regarding the applicability of the Act on the expiry of 10 years during the pendency of the litigation was contrary to the subsequent decisions of the Apex Court in Nand Kishore Marwah case (supra) and Atma Ram Mittal case (supra).

Before parting with the case, it is necessary to deal with certain cases cited by Shri Tandon, learned Senior Counsel for the respondent-Vinay Kumar Agarwal regarding scope of review.

In Inayat Elahi case (supra), a writ petition filed by the petitioner/tenant was dismissed by a learned Single Judge of this Court in limine by an order dated 4.8.1999. The petitioner/tenant filed Special Leave Petition before the Supreme Court. The Supreme Court by its order dated 3.1.2000 permitted the petitioner /tenant to get the Special Leave Petition dismissed as withdrawn so as to enable them to file appropriate review proceedings before this Court. Thereafter, the petitioner/ tenant filed a review petition before this Court.

The learned Single Judge of this Court held that the writ petition filed by the petitioner/ tenant was dismissed by the order dated 4.8.1999 without adverting to the submission made on behalf of the petitioner/tenant that the Appellate Authority had decided the question of comparative hardship in favour of the landlord on the ground of the availability of two accommodations with the petitioner / tenant without recording a positive finding whether those alternative accommodations were suitable for business and further whether  the petitioner / tenant could shift his existing business in those premises without any substantial loss. Hence, it was held by the learned Single Judge that there was mistake apparent on the face of record in the said order dated 4.8.1999. The review petition was, therefore, allowed by the learned Single Judge.

The facts of Inayat Elahi case (supra) are thus evidently distinguishable from those of the present case. In the present case, it has not been shown that the learned Single Judge in the said judgment dated 17th January, 1984 omitted to consider any submission made on behalf of the respondent. What is being contended is that the view of the learned Single Judge on various legal questions was not correct. As held above, this cannot be a ground for review. Thus, the decision in Inayat Elahi case (supra) is not applicable to the present case.

In Sardar Hussain case  (supra), the suit filed by the plaintiffs/ respondents against the defendants / petitioners was dismissed by the Trial Court. Thereupon, an appeal was filed by the plaintiffs / respondents against the decree. Before the Appellate Court, an objection was raised on behalf of the defendants/ petitioners that in view of Section 96(4) of the Code of Civil Procedure, introduced by the Central Act, 1976, with effect from 1st February, 1977, no appeal could lie except on a question of law since the appeal was from a decree in a suit of the nature cognizable in the Court of Small Causes. The objection was repelled by the Appellate Court under the impugned order dated 26th August, 1981. Thereupon, the defendants/petitioners filed writ petition before this Court. By the order dated 13th May, 1985, a learned Single Judge of this Court dismissed the writ petition.

The defendants/petitioners filed review application before this Court. The learned Single Judge of this Court allowed the review application, and recalled the order dated 13th May, 1985. It was held that the objection regarding Section 96(4) of the Code of Civil Procedure escaped notice of the Court when the decision dated 13th May1985 was recorded.

The learned Single Judge observed as under (paragraphs 4 and 5 of the said ARC):

"4. For the reasons stated above, the order made by the Court below to the effect that the appeal shall be taken up as one lying under Section 96 of the Code and not covered under Section 96 (4) of the Civil Procedure Code, cannot be sustained. It may be added that this petition was decided earlier by this Court on 13th May, 1985, and had been dismissed but subsequent to this there is a review, application filed against this and since this aspect of the controversy raised and referred to above escaped notice when the decision dated 13th May, 1985 was recorded, that review petition has been on that account allowed.

5. For these reasons the review application is allowed. The order dated 13th May, 1985, is recalled. The writ petition succeeds. The order made by the Additional District Judge dated 26th August, 1981 is set aside. The Court below is directed to proceed with and decide the appeal on merits in accordance with law and in the light of the observations made above. Costs on parties.'  

The facts of Sardar Hussain case (supra) are thus evidently distinguishable from those of the present case. In Sardar Hussain case (supra), there was omission to consider the objection regarding Section 96(4) of the Code of Civil Procedure. In the present case, it is not contended the learned Single Judge omitted to consider any point raised on behalf of the respondent. Thus, the decision in Sardar Hussain case (supra) is not applicable to the present case.

In Gurbachan Singh case (supra), the facts were as follows. The Trial Court in a suit granted temporary injunction. The Appellate Court by the judgment dated 25th April, 1979 allowed the appeal, set-aside the order of temporary injunction issued by the Trail Court, and dismissed the injunction application. Writ petition filed by the defendant/petitioner against the said judgment of the Appellate Court was dismissed by a learned Single Judge of this Court by the judgment dated 17th May, 1979 with certain observations regarding the offer made by the plaintiff/respondent before the Trial Court and the Appellate Court in regard to temporary arrangement of the wooden staircase.

The defendant filed a review application before the Appellate Court under Order XLVII Rule 1 read with Section 151, Civil Procedure Code in view of the observations made by this Court in the said judgment dated 17th May, 1979. The review application was allowed by the Appellate Court by its order dated 29th May, 1979.

The plaintiff thereupon filed writ petition before this Court against the said order dated 29th May, 1979. It was, inter-alia, contended on behalf of the plaintiff/ petitioner before this Court that the impugned order dated 29th May, 1979 was a nullity as the Appellate Court had no power to review its earlier order under Section 151 Code of Civil Procedure. Dealing with the said submission, a learned Single Judge of this Court held as follows (paragraph 16 of the said ALJ):

"16.  In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 Supreme Court 527) the Supreme Court held that courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of O. 39 Rr. 1 and 2 if the court is of opinion that the interests of justice require the issue of such an interim injunction. The Additional District Judge, therefore, while deciding the appeal on 25th April 1979 rejecting the injunction application on the ground that the plaintiff respondent could not get an injunction under O. 39, R. 1 should have also further considered as to whether an injunction should have been granted under its inherent power as it had recorded a finding that balance of convenience was in favour of tenant and irreparable injury would be caused to him if injunction is refused. This was an essential matter which should have been considered by the Additional District Judge. It was not considered and as such the High Court was compelled to observe the same in its order dated 17th May 1979. Since there was an omission to decide an important matter in the appeal the principle laid down in Moran Mar Bassalios  Catholicos' case (supra) would fully apply and the court had the power to review under the expression ''for any other sufficient reason.' In view of the above the order of the Additional District Judge is not a nullity and the order has been passed within jurisdiction."

Thus, in Gurbachan Singh case (supra), it was held that as the Appellate Court did not consider whether injunction could be granted under its inherent power, the Appellate Court had power to review under the expression "for any other sufficient reason" occurring in Order XLVII Rule 1, Code of Civil Procedure.

The facts of the present case are different from those of Gurbachan Singh case (supra). In the present case, it is not contended that the learned Single Judge omitted to consider any point raised on behalf of the respondent. Thus, the decision in Gurbachan Singh  case (supra) is not applicable to the present case.

As regards review on the ground covered under the expression "for any other sufficient reason", it is pertinent to refer to the decision of the Privy Council in Chhajju Ram case, AIR 1922 PC 112 (supra). Their Lordships of the Privy Council held as follows (at page 115 of the said AIR):

"Their Lordships have examined numerous authorities, and they have found much conflict of judicial opinion on the point referred to. There is plainly no such preponderance of view in course of decision which they are under obligation to follow. Some of the decisions in the earlier cases may have been influenced by the wider form of expression then in force, and these decisions may have had weight with the learned Judges who in cases turning on the subsequent Code, had regarded the intention of the legislature as remaining unaltered. But their Lordships are unable to assume that the language used in the Codes of 1877 and 1908 is intended to leave open the questions which were raised on the language used in the earlier legislation. They think that Rule 1 of Order XLVII must be read as in itself definite of the limits within which review is today permitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words "any other sufficient reason" as meaning a reason sufficient on grounds at least analogous to those specified immediately previously..............................."

In Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others, AIR 1954 SC 526, their Lordships of the Supreme Court observed as follows (paragraph 32 of the said AIR):

"32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasize that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.

It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.

It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule." See - ''Chhajju Ram v. Neki,' AIR 1922 PC 112 (D). This conclusion was reiterated by the Judicial Committee in --- ''Bisheshwar Pratap Sahi v. Parath Nath', AIR 1934 PC 213 (E) and was adopted by our Federal Court in - ''Hari Shankar v. Anath Nath,' AIR 1949 FC 106 at pp 110, 111 (F). Learned counsel appearing in support of this appeal recognizes the aforesaid limitations and submits that his case comes within the ground of "mistake or error apparent on the face of the record" or some ground analogous thereto................................................."

In the present case, in my opinion, there is no sufficient reason for reviewing the judgment dated 17th January, 1984.

In view of the aforesaid discussion, I am of the view that the Review Application filed on behalf of the respondents lacks merit, and the same is liable to be dismissed. The Review Application is accordingly dismissed. However, on the facts and in the circumstances of the case, there will be no order as to costs.

Dt.               /RA-4295-84/AK


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.