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SMT. RAJPATI DEVI versus SRI RAM SEWAK SINGH AND OTHERS

High Court of Judicature at Allahabad

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Smt. Rajpati Devi v. Sri Ram Sewak Singh And Others - SECOND APPEAL No. 1434 of 2001 [2005] RD-AH 964 (4 April 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 40

REVIEW APPLICATION NO. 1689 OF 2002

IN

Second Appeal No. 1434 of 2001

Smt. Raj Pati Devi..................................................Appellant

Versus

Ram Sewak and others.........................................Respondents.

Hon. S.N.Srivastava, J.

The defendant appellant has preferred this review petition in which is impugned the judgment of this Court dated 28.12.2004 rendered by Hon. B.K.Rathi, J whereby second appeal was dismissed holding that no substantial question of law arose for decision.

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 47, Rule 1 C.P.C. for today. It is today that the matter has been heard on merit at prolix length.

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 3.8.75 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.

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. B.K.Rathi, J by means of judgment dated 28.11.2001. The judgment dated 28.11.2001 rendered by Hon. B.K.Rathi, 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 bi-lateral.

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, this 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."

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 hand-writing experts examined by the parties, converged to believe the opinion of the hand-writing expert examined by defendant and disbelieved the opinion of hand-writing 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 hand-writing experts examined in the case but the lower appellate court ignored altogether the opinions of the hand-writing 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 another , 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 Opp. Parties contended 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 reported in AIR 1975 SC 455 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 reported in AIR 1987 SC 1160 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 47 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.

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

As specified in Order 47, 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 evidence 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".

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 . 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.

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

What is substantial question of law has to be gleaned from a discussion of the following decisions.

 

In Suresh Kumar v. Town Improvement Trust, Bhopal , the Hon. Supreme Court while dealing with the question of compensation under the Land Acquisition Act, quintessentially 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 others v. Mrs. Rajabu F. Buhari and others , 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 Cl W.N. 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 , 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.

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 hand-writing expert examined by plaintiff and believed the opinion of hand-writing expert examined by the defendant no.1 and on 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 bi-lateral and  proceeded to observe that the learned counsel for the appellant could not show that the agreement to sale should be bi-lateral. 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.

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.

As a result of foregoing discussion, I am of the view that it is a fit case for review.

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.

M.H.

4.4.2005


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

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