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REVIEW APPLICATION NO.63

High Court of Judicature at Allahabad

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Review Application No.63 - SECOND APPEAL No. 2809 of 1978 [2005] RD-AH 2148 (29 August 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Review Application No. 63 of 1981

On behalf of

Ghoorey Ram & others -- Defendants-respondents/Applicants

In

Second Appeal No. 2809 of 1978

Wali Mohammad                        ----                Plaintiff-appellant

                                                        Vs.

Ghoorey Ram & others                  ----            Defendants-respondents

Hon'ble  V.C. Misra, J.

Sri Sankatha Rai, learned counsel for the plaintiff-appellant and Sri B.D. Mandhyan, Advocate with Sri S.C. Mandhyan, Advocate appearing for the defendants-respondents/applicants are present.

1. The present review application dated 21.8.1981was moved by the defendants-respondents/applicants (in short applicants) under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure alongwith an application under Section 5 of the Indian Limitation Act for condonation of delay in filing review application seeking review of the judgment and order dated 26.2.1981 passed by this Court (Hon'ble V.K. Khanna, J.) in the present Second appeal No. 2809 of 1978 with part success and part failure. The delay in moving review application was condoned by this Court vide order dated 21.1.1982. An amendment application dated 15.2.2005 to the review application was also moved by the applicants which was allowed by this Court vide order dated 31.3.2005.

2. In the review application it has been stated that this Court while passing judgment and order dated 26.2.1981 has committed manifest error of law apparent on the face of the record on the following grounds, inter alia, firstly, that this Court had misread the partition decree with site plan Ext. A-10 passed in the year 1939 in Original Suit No. 712 of 1933 filed in between the predecessors of the plaintiff-appellant. The plaint of that partition suit alongwith two judgments of the Court below were also filed but neither in the plaint nor in the judgments and nor in the decree it was mentioned that the land in suit was ever the Sahan of the parties jointly or separately and that partition suit was purely of the property suit and not of any of the land, either Sahan or otherwise, whereas, this Court vide its judgment dated 26.2.1981 has held that the land in dispute was joint Sahan of the plaintiff-appellant; Secondly, that both the courts below have recorded a finding of fact that the plaintiff-appellant had failed to establish his title over the land, in dispute, and they had considered the compromise decree passed in original suit no. 576 of 1940 in between the predecessors-in-interest of the plaintiff-appellant and the defendant-applicants wherein it was admitted that the predecessors of the applicants were in possession over the land in dispute and thus, the title over the land in dispute was established by the documentary evidence while this Court gave a contrary finding and did not take into consideration that the said compromise decree was binding on the plaintiff-appellant, whereas, the original suit from which this second appeal arises was filed later on  in the year 1958; And thirdly, that this Court has also erroneously discarded the Patta, Ext. A-14, executed by the then Zamindar in favour of the applicants on 9.2.1955 relating to the land plot no. 25 (subsequently numbered as 19) which has been accepted by both the courts below by recording concurrent findings of fact, on the ground that the Patta was executed in the year 1955 and by that time the U.P. Zamindari Abolition and Land Reforms Act, 1950 had come in to force, therefore, the land vested in the Gaon Sabha or the State and no Patta could be validly executed by the Zamindar, whereas admittedly, the land in dispute was situated at Mohallah Hansupur, district Gorakhpur within the municipal limits of Gorakhpur, now  Nagar Nigam Gorakhpur and, therefore, the the U.P. Zamindari Abolition and Land Reforms Act, 1950 was not applicable to the agricultural land or the Banjar land which was situated within the municipal limit, Notified Area, Cantonment or Town area and other local bodies and the U.P. Zamindari Abolition and Land Reforms Act, 1950 became applicable thereon only in the year 1966 and thus, this Court wrongly applied the provisions of Zamindari Abolition and Land Reforms Act, 1950 to the property in question, and this amounts to an error in law apparent on the face of the record.

3. Learned counsel for the respondent-applicants have relied upon the decisions of the apex Court as well as of this Court and other High Courts, namely, Board of control for Cricket, India and another Vs. Netaji Cricket Club and others (JT 2005 (1) SC 235), M.M. Thomas Vs. State of Kerala and another (2000) 1 SCC 666), Srinivasiah Vs. Balaji Krishna Hardware Stores (AIR 1999 SC 462), Shivdeo Singh and others Vs. State of Punjab and others  (AIR 1963 SC (V.50 C-273), U.P. State Electricity Board and others Vs. Presiding Officer, Industrial Tribunal, Allahabad (2003 (51) ALR 589), Commissioner, Hindu Religious and Charitable Endowment Vs. P. Shanmugama and others (2005 (2) AWC 1869 (SC), Hasji Nizamuddin and others Vs. State of U.P. and others  (AIR 1978 Alld. 271) and Lily Thomas Vs. Union of India & others ( JT 2000 (5) SC 617) .

4. Learned counsel for the plaintiff-appellant while opposing the review application has submitted that the errors pointed out by the learned counsel for the applicants are not open to review under Order 47 rule 1 of the Code of Civil Procedure inasmuch as no mistake apparent on the fact of the record has crept in and in such circumstances the judgment and order passed in this second appeal should not be disturbed. In support of his case, learned counsel for the plaintiff-appellant has relied upon the following decisions rendered in the case of Devaraju Pillai Vs. Sellayya P. (AIR 1987 SC 1160), Santosh Kumar Vs. Nageshwar Prasad (AIR 2001 Alld. 187) Lily Thomas Vs. Union of India & others (AIR 2000 SC 1650), Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Chaudhary (AIR 1995 SC 455), Satyanarayan Hegde Vs. Mallikarjun Tirulale (AIR 1960 SC 137) and Rajendra Kumar and others Vs. Rambhai (AIR 2003 SC 2095).

5. I have heard learned counsel for the parties at length and perused the record and the authorities cited by them respectively and find firstly that this Court while passing its judgment-dated 26.2.1981 has held that the land (Sahan) in dispute was joint Sahan of the plaintiff-appellant. This finding is erroneous apparent on the face of the record as the partition decree with site plan, which is Ext. A-10 passed in the year 1939 in Original suit No.712 of 1933 between predecessors of the plaintiff-appellant and the plaint of the partition suit alongwith two judgments of the courts below do not mention that the disputed land Sahan or otherwise was joint or separate, but this Court surmised so by holding it to be a joint Sahan of the plaintiff appellant as at observed, "From the aforesaid map it is clear that the house was partitioned but there was no partition of the Sahan. May be that the Sahan may have been kept joint of the parties". Secondly, the compromise decree passed in Original Suit No. 576 of 1940 in between the predecessors-in-interest of the plaintiff-appellant and the respondent-applicants shows that the respondent-applicants were in possession over the land in view of the compromise decree, which was binding on the plaintiff-appellant. This being a very important piece of evidence had escaped the attention of this Court in the judgment which was required to be considered while deciding the claim of the parties and had it been considered, this Court might have arrived at a different conclusion based on documentary evidence and it could not have resulted in failure of justice. Thirdly, this Court also committed mistake of law apparent on the face of the record. It has wrongly applied the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 to the property, in question, whereas the land in dispute did not fall within the purview of the said Act, which came into force and became applicable only since 1st July 1966. Since, admittedly, the land, in dispute, was situated within the municipal limits of Gorakhpur, now the present Nagar Nigam, Gorakhpur. Due to this wrong application of the provisions of the said Act, this Court discarded a very valuable piece of evidence Ext. A-14, a Patta dated 9.2.1955 given by the then Zamindar in favour of the applicants. The finding of this court that this document will not help defendant no. 1, because in the year 1955 the Zamindar had no right to execute a lease deed (Patta) in respect of barren land inasmuch as the U.P. Zamindari Abolition and Land Reforms Act, 1950 had come into force and all the vacant land would be deemed to have been vested in the State and thereafter the Management of Gaon Sabha, was due to wrong application of the provisions of the said Act, as the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 were not applicable till 1966 over the land which fell within the jurisdiction of Municipal limits of Gorakhpur, now Nagar Nigam, Gorakhpur.

6. The submission of the learned counsel for the plaintiff-appellant that it is not open to this Court to review the judgment and order dated 26.2.1981 as required under the provision under Order 47 Rule 1 of the Code of Civil Procedure Code inasmuch as no mistake apparent on the face of the record has accrued and this Court has no jurisdiction to entertain review application, is uncalled for. The Supreme Court in the case of M.M. Thomas (Supra) has held that the 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 passed by it the High Court has not only power, but also a duty to correct it and the High Court's power in that regard is plenary.

7. Learned counsel for the plaintiff-appellant submitted that the judgment and order in this second appeal was passed on 26.2.1981 and this application has been moved at a very late stage seeking review of that judgment. The apex Court in the case of Board of Control for Cricket (Supra) has held that, the substantive provisions of law did not prescribe any limitation on the powers of the High Court except those expressly provided in Section 114 of the Code of Civil Procedure and hence in entertaining the review application cannot be said to be bad in law. The application for review would be maintainable under Order 47, Rule 1 of the Code of Civil Procedure, not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the fact of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason which is wide enough to include a misconception of fact of law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". The Hon'ble Supreme Court has further clarified the position in the case of Lily Thomas (Supra) and held as under:

"Law has to bend before justice, if the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error "

8. Considering the facts and circumstances of the instant case, in my view, this Court, under mistaken belief had erroneously assumed that benefit of the lease deed (Patta) executed in favour of the respondent-applicants by the then Zamindar in the year 1955, Ext. A-14 was of no consequence on the basis that the U.P. Zamindari Abolition of Land Reforms Act, 1950 had already come into force, which in fact was not applicable on the date of execution of the Patta. This is a clear case of error of law apparent on the face of record. Therefore, there is ample justification for rectifying the error and interference in exercising review jurisdiction by this Court. In this view of the matter and the observations made above, the judgment and order dated 26.2.1981 passed by this Court stands vitiated by error apparent on the face of the record which if allowed to stand will lead to failure of justice and is accordingly recalled.

9. In the result, the review application is allowed to the extent indicated above. There will be no order as to costs. The case shall be listed before the appropriate Bench for final hearing afresh.

August 29, 2005

Kdo


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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

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