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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
REVIW APPLICATION NO.42 OF 2009
IN
WRIT PETITION NO. 156 OF 1989
KAUSALYABAI KISAN CHOUHAN
V/S
SAKHARAM NAMDEO GAIKWAD
...
Shri S.D.Kulkarni, Advocate for petitioner and
Shri P.M.Shah, Sr. Advocate i/b Shri S.P.Shah for respondents.
...
ig CORAM : S.B.DESHMUKH,J.
Dated : 21.10.2010
PER COURT :-
1. Heard learned counsel for the respective parties.
2. Rule. By consent, Rule made returnable forthwith.
3. Petitioner, by this application, seeks review of the order
passed by this Court on 16.2.2009 in Writ Petition No.156 of 1989.
Petitioner also seeks remand of the matter to the trial Court with
direction to decide the matter afresh in view of the changed
circumstances by considering the requirements of the heirs, if any.
4. This Civil Application appears to have been filed by tenant
on 2.3.2009. In response to the notices issued by this Court, all
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respondents have entered their appearances. Shri S.P.Shah, Advocate has
filed affidavit in reply on behalf of respondents. It has been sworn by one
Purushottam Gaikwad on 7.5.2009. Thereafter, on behalf of the
petitioner, additional affidavit has been filed, sworn in by Kausalyabai
Chavan on 23.7.2010. Some documents have been placed on record along
with this additional affidavit of the petitioner. Affidavit on behalf of
respondents is also on record (Page 44) affirmed by Prakash Gaikwad on
8.10.2010.
5. Shri Kulkarni, learned Advocate for the petitioner submitted
that Writ Petition No.156 of 1989, initially was filed at Mumbai in 1985.
On establishment of this Bench at Aurangabad, said petition was
transferred and re-registered as above. According to learned counsel Shri
Kulkarni, this petition was pending before this Court for about 23 long
years. Hearing of the petition was protracted by the landlords i.e.
respondents. On 16.2.2009, this Court has heard the matter and passed
an order, review of which is sought by the petitioner.
Shri Kulkarni, learned Advocate for the petitioner submitted
that on that day he himself was not feeling well and therefore, not
present before the Court to address the Court and his colleague Shri
S.S.Kulkarni was before the Court who was also not prepared and was
asking time. This Court, however, considering the pendency of the Writ
Petition for substantial time, asked him to address the Court and read the
judgment. That is how, according to learned counsel Shri Kulkarni, his
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colleague read the judgment. He emphatically submitted that no other
lawyers appearing for respondents, especially learned advocates
appearing for the landlords were present before the Court and did not
insist for hearing of the petition nor advanced submissions. Even though it
is a Writ Petition, Shri Kulkarni, learned Advocate points out that the
State of Maharashtra is not a party and therefore, there was no occasion
for learned Assistant Government Pleader to address the Court. This is
the ground on which Shri Kulkarni, learned Advocate seeks review of the
order dated 16.2.2009.
Another ground raised by Shri Kulkarni is discovery of new
material after passing of the order of this court dt. 16.2.2009.
Apart from these two grounds, he also invited my attention
to ground Nos.(IX) and (X) raised in this civil application, which read as
under :-
(IX) It ought to have been considered that during the
pendency of the Writ Petition the respondent no.1 expiredon 21.10.1992 and his heirs were already brought on record,
the respondent no.5 has expired on 08.06.1994 and his heirs
were already brought on record, the respondent no.3 has
expired on 31.01.1996 and his heirs were already brought onrecord and hence unless and until the requirement of this 14
heirs is ascertained by remanding the matter to the trial
court as laid down by the full bench and the division bench
of this Honourable High Court which are referred above no
decree for possession can be passed in favour of the heirs,
this being a beneficial legislation for the benefit of the
tenant and considering the object of Act and unless and until::: Downloaded on – 09/06/2013 16:34:04 :::
4the requirement is proved and the tenant who is in
possession cannot be deprived of his possession.
(X) It ought to have been considered that already the
necessary material which is required for deciding the effect
of subsequent events during the pendency of theproceedings is brought on record by filing an affidavit along
with the supporting documents and there is no challenge to
the above statements by the respondents and hence thepetitioner is entitled for those benefits in view of the law
laid down by the Honourable High Court and HonourableSupreme Court.
Shri Kulkarni, learned counsel for the petitioner relied upon
the judgment in the case of Board of Control for Cricket Vs. Netaji Cricket
Club [AIR 2005 SC 592] Paragraphs 88 to 92. I have considered the facts
and ratio of the said judgment.
6. Shri Shah, learned Sr. Advocate submitted that these two
grounds cannot be considered to be the grounds available for review. In
support of this submission, he relied upon the judgment of the Supreme
Court in the matter of Shakuntalabai and others Vs. Narayan Das and
others [(2004) 5 SCC 772]. Indisputably, the issue in that matter had
arisen under the provisions of the Rent Act. In the case on hand, dispute
amongst the parties is in relation to rights of the parties to the
agricultural lands in accordance with the Bombay Tenancy and
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Agricultural Lands Act, 1948. In my opinion, the judgment relied upon by
Shri Shah, Sr. Advocate can be distinguished on facts. However, these two
grounds, in my opinion, cannot be considered to be the grounds for review
within the parameters of Order XLVII read with Section 114 of the Code of
Civil Procedure (“CPC”).
7. The ground urged by Shri Kulkarni, learned Advocate that he
was not available and the matter has been argued by his colleague, who
was not even acquainted with the facts of the case and absence of
Advocates appearing for contesting respondents/landlords, in my view, is
material. In support of this ground, Shri Kulkarni, learned Advocate took
me to the additional affidavit of the petitioner (Page 33). Paragraph “N”
of the said affidavit reads as under :-
“(N). The petitioner states that apart from the above facts,
the Advocate, who was appearing for the petitioner, was notfeeling well and hence, all the material along with the legal
position was not pointed out to this Honourable High Court
and hence in view of the above circumstances, it is a fit case
for exercising the review jurisdiction with a view to givejustice to the petitioner who is old lady and is fighting this
litigation since more than 30 years.”
8. Procedural review is an issue, which can be considered by
this Court. It belongs to a different category. So far procedural review is
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concerned, it is apposite at this stage to usefully make a reference to the
judgment of the Honourable Supreme Court in the case of Kapra Mazdoor
Ekta Union Vs. Management of M/s Birla Cotton [ AIR 2005 SC 1782].
Paragraph No.19 of the said judgment, which is material, is reproduced
herein below.
“Applying these principles it is apparent that where a Court
or quasi judicial authority having jurisdiction to adjudicate
on merit proceeds to do so, its judgment or order can bereviewed on merit only if the Court or the quasi judicial
authority is vested with power of review by express provisionor by necessary implication. The procedural review belongs
to a different category. In such a review, the Court or quasi
judicial authority having jurisdiction to adjudicate proceedsto do so, but in doing so commits a procedural illegality
which goes to the root of the matter and invalidates theproceeding itself, and consequently the order passed
therein. Cases where a decision is rendered by the Court or
quasi judicial authority without notice to the opposite partyor under a mistaken impression that the notice had been
served upon the opposite party, or where a matter is taken
up for hearing and decision on a date other than the datefixed for its hearing, are some illustrative cases in which the
power of procedural review may be invoked. In such a case
the party seeking review or recall of the order does not have
to substantiate the ground that the order passed suffers
from an error apparent on the face of the record or any
other ground which may justify a review. He has to establish
that the procedure followed by the Court or the quasi::: Downloaded on – 09/06/2013 16:34:04 :::
7judicial authority suffered from such illegality that it
vitiated the proceeding and invalidated the order made
therein, inasmuch the opposite party concerned was notheard for no fault of his, or that the matter was heard and
decided on a date other than the one fixed for hearing of
the matter which he could not attend for no fault of his. Insuch cases, therefore, the matter has to be re-heard in
accordance with law without going into the merit of the
order passed. The order passed is liable to be recalled andreviewed not because it is found to be erroneous, but
because it was passed in a proceeding which was itselfvitiated by an error of procedure or mistake which went to
the root of the matter and invalidated the entireproceeding. In Grindlays Bank Ltd. vs. Central Government
Industrial Tribunal and others (supra), it was held that once
it is established that the respondents were prevented fromappearing at the hearing due to sufficient cause, it followed
that the matter must be re-heard and decided again.”
9. Shri Shah, learned Sr. Advocate submitted that the
application for review cannot be favourably considered within the
parameters of Order XLVII read with Section 114 of CPC. In support of his
submissions, he relied upon the various judgments. First one is the
judgment in the case of Promoters & Builders Association of Pune Vs. Pune
Municipal Corporation [(2007) 6 SCC 143]. Attention of this Court has been
invited to paragraph No.13 of the said judgment. I have considered the
facts available in this judgment and more specifically paragraph No.13.
The legal position, so far review is concerned, is that a review of an
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earlier order is not permissible unless the Court is satisfied that material
error, manifest on the face of the order undermines its soundness or
results in miscarriage of justice. Paragraph No 13 of the said judgment,
reads as under :
“As was observed by this Court in Col. Avtar Singh Sekhon v.
Union of India [(1980) Supp. SCC 562] review is not a routineprocedure. A review of an earlier order is not permissible
unless the Court is satisfied that material error, manifest onthe face of the order undermines its soundness or results in
miscarriage of justice. A review of judgment in a case is aserious step and reluctant resort to it is proper only where a
glaring omission or patent mistake or like grave error has
crept in earlier by judicial fallibility ….. The stage of review
is not a virgin ground but review of an earlier order whichhas the normal feature of finality. This view has been
reiterated in Devender Pal Singh v. State (2003) 2 SCC 501
(para 16). This being the legal position, there is absolutely
no ground for review of the judgment and order dated5.5.2004. The review petitions are, therefore, liable to be
dismissed. “
Another is the judgment in the case of Haridas Das Vs. Usha
Rani [(2006) 4 SCC 78]. Shri Shah, learned Sr. Advocate took me to
paragraph No.13 of the said judgment, wherein, the Honourable Supreme
Court has held;
” In order to appreciate the scope of a review, Section 114
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of the CPC has to be read, but this section does not even
adumbrate the ambit of interference expected of the Court
since it merely states that it “may make such order thereon
as it thinks fit.” The parameters are prescribed in Order
XLVII of the CPC and for the purposes of this lis, permit the
defendant to press for a rehearing “on account of some
mistake or error apparent on the face of the records or for
any other sufficient reason”. The former part of the rule
deals with a situation attributable to the applicant, and the
latter to a jural action which is manifestly incorrect or on
which two conclusions are not possible. Neither of them
postulate a rehearing of the dispute because a party had not
highlighted all the aspects of the case or could perhaps have
argued them more forcefully and/or cited binding
precedents to the Court and thereby enjoyed a favourable
verdict. This is amply evident from the explanation in Rule 1
of the Order XLVII which states that 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.
Where the order in question is appealable the aggrieved
party has adequate and efficacious remedy and the Court
should exercise the power to review its order with the
greatest circumspection. This Court in M/s. Thungabhadra
Industries Ltd. v. The Government of Andhra Pradesh [AIR
1964 1372] held as follows:
“There is a distinction which is real, though it might
not always be capable of exposition, between a mere
erroneous decision and a decision which could be::: Downloaded on – 09/06/2013 16:34:04 :::
10characterized as vitiated by “error apparent”. A
review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected, butlies only for patent error. Where without any
elaborate argument one could point to the error and
say here is a substantial point of law which states onein the face and there could reasonably be no two
opinions entertained about it, a clear case of error
apparent on the face of the record would be madeout.”
I have considered the facts and ratio of this judgment
carefully.
Next judgment, cited by Shri Shah, learned Sr. Advocate is in
the case of S.N.S.(Minerals) Ltd. Vs. Union of India [(2007) 12 SCC 132].
Parameters of review have been considered by the Supreme Court in the
said case. I was taken to paragraph No.8 of this judgment. In this
judgment also, the Honourable Supreme Court has referred to its earlier
judgment in the case of Haridas Das (supra).
Shri Shah, learned Sr.Advocate further took me to paragraph
No.8 of the judgment of the Honourable Supreme Court in the case of
Meera Bhanja Vs. Nirmala Kumari [(1995) 1 SCC 170]. I have given
thoughtful consideration to the facts and ratio laid down in this judgment.
In this judgment, the Supreme Court has held that the power of review
may not be exercised on the ground that the decision was erroneous on
merits and that it would be the province of a court of appeal.
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Lastly, Shri Shah, learned Sr. Advocate submitted that the
order passed by the revisional Court under the provisions of the Bombay
Tenancy and Agricultural Lands Act with limited scope was subject matter
of the Writ Petition under Article 227 of the Constitution of India, further
limiting the scope of interference by this Court. He has further submitted
that this Writ Petition has been disposed of and now this review
application under Section 114 read with Order XLVII of CPC has further
restricted scope for interference by this Court. So far Article 227 of the
Constitution of India and powers of review are concerned, he relied upon
the judgment of the Supreme Court in the case Shalini Shyam Shetty Vs.
Rajendra Shahkar Patil [(2010) 8 SCC 329]. I have given thoughtful
consideration to the submissions of Shri Shah, learned Sr. Advocate for the
respondents. I have considered the parameters of Order XLVII read with
Section 114 of CPC and the judgments of the Supreme Court, which are
referred to in the foregoing paragraphs of this order.
Shri Shah, learned Sr. Advocate fairly conceded the position
that on 16.2.2009, he was not present before the Court. According to him,
there was no occasion for him. Shri S.P.Shah, learned Advocate also
admits that he was not present before the Court on 1.6.2009. He neither
insisted this Court for hearing of the Writ Petition nor addressed the Court
on merits of the case.
10. So far the ground raised by Shri Kulkarni, learned Advocate
that he was not feeling well and did not address the Court and his
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colleague appeared before the Court has not been confuted on behalf of
respondents/landlords is concerned, I have, with the able assistance of
the learned counsel for the parties, gone through the judgment and order
of this Court, sought to be reviewed. This order dated 16.2.2009 records
that Shri S.S.Kulkarni, Advocate holding for Shri S.D.Kulkarni Advocate,
appears for the petitioner. I have seen the appearances recorded by this
Court on 16.2.2009. Relevant is the non appearance or absence of Shri
Subodh P. Shah, learned Advocate for contesting respondents 3(a) to 3(h).
Specifically it has been mentioned in the appearances clause of the said
judgment that learned Advocate for respondents 3(a) to 3(h) is absent. In
paragraph No.10 of this order, it has been observed by this Court, that
learned counsel for the petitioner is not in a position to give date of death
of the landlord. Submission of Shri S.D.Kulkarni, learned Advocate for the
petitioner that the Advocate who was present before the Court on
16.2.2009 was not prepared and even was not acquainted with the facts of
the case, can be said to have been substantiated by absence of learned
counsel for respondents/landlords and observations made by this Court in
paragraph No.10 of the order. In my view, the first ground raised by Shri
S.D.Kulkarni, learned Advocate for the petitioner in review, can be fairly
accepted.
11. Another ground put forth by learned counsel Shri Kulkarni is
discovery of new evidence. For this proposition he took me to the
additional affidavit of the petitioner In the said affidavit. More
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specifically paragraph Nos.(A) to (H) have been pointed out by him to me
to show that the landlords/respondents have dealt with disposal of the
lands in question and have taken steps for disposal of the lands. Clause
(A) of the said affidavit makes a reference to the transactions for
disposal/sale of the disputed land. Date is relevant i.e. 31.12.2009, which
is the date after the judgment sought to be reviewed dated 16.2.2009. In
my view, this ground may be considered being the subsequent fact after
order passed by this Court but may not be helpful to the petitioner in its
entirety to seek the review. Transaction shown in clause (B) is dated
27.8.1996. I am not recording the details of the transaction but the
relevant is the fact that it is a part of the subject matter of the Writ
Petition and more important is the aspect that transaction is entered into
before Notary. Same is the position in relation to transactions at clauses
(C) dated 20.2.2008, (D) dated 27.8.1996, (E) dated 28.2.2008, (F) dated
27.8.1996, (G) dated 17.8.1996 and (H) dated 28.2.2008.
12. Shri Shah, learned Sr. Advocate took me to the affidavit filed
by the petitioner in Writ Petition proper. In fact, it is an additional
affidavit of the petitioner. It is at page 46 of the Writ Petition. It has
been affirmed by one Nayan Kisan Chavan. Shri Shah, learned Sr.
Advocate took me to paragraph No.2. He points out that Exhibits A/1 to
A/3 and B/1 to C/3 are the copies of the plaints placed on record by the
petitioner. According to him, all these transactions were of the year 2008
and various suits are pending before the Civil Court. The petitioner, in
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some of the suits, is a party – defendant. According to him, therefore,
this cannot be contended by the petitioner, now, that it is a discovery of
new matter or evidence. With the assistance of learned Sr. Advocate, I
have gone through all these plaints.
13. In my opinion, copies of the plaints to which the petitioner is
a party, though they are placed on record by the petitioner, can be
considered for the fact of presentation of the plaint, pleadings raised and
reliefs prayed.
The actual transactions by the documents which are
notarized have been referred to by him. Notarized documents has its
own advantages and dis-advantages. Access to these documents to third
party is very limited. The nature of the transaction recorded in the
document can be understood or perceived by the petitioner if the
petitioner has got an opportunity to see or have an access to the
documents. In my opinion, notarized documents are the transactions
entered into by the landlords/respondents with the strangers in relation to
the property, subject matter of present review application. The claim of
the petitioner that he has discovered this evidence after the judgment in
the Writ Petition, in my view, can be accepted. Apart from this there are
two registered documents, one sale deed at clause (A), which I am not
favourably considering in favour of the petitioner. Another document is a
registered agreement, that also I am not considering favourably in favour
of the petitioner because certified copies of the registered documents
could be obtained from the office of Sub-Registrar.
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14. In my opinion, two grounds can be accepted. Firstly;
learned Advocate for the petitioner was not before the Court since he was
not feeling well and his colleague argued the matter and no Advocate for
the respondents was present in the Court nor insisted for hearing of the
matter. Therefore, the procedure followed by the Court on 16.2.2009
suffers from illegality vitiating the proceeding and invalidating the order
passed on 16.2.2009. Second ground is as regards the discovery of material
and evidence. Notarized documents which are received by the petitioner
after delivery of the judgment can be accepted within the parameters of
Order XLVII read with Section 114 of CPC. Shri S.P.Shah, learned Advocate
on record for respondents submits that since the first ground is being
accepted, submissions so far notarized documents are concerned are
curtailed. Factually this is not correct. Shri P.M.Shah, learned Sr.
Advocate has taken me through the petition, copies of the plaint placed
on record etc. In this situation, it is difficult to accept this contention.
All in all, I am inclined to review the order by recalling the said order in
the light of the above observations.
15. In the result, Review Application is partly allowed. The
order passed by this Court in Writ Petition No.156 of 1989 on 16.2.2009
stands recalled. Prayer made by the petitioner to remand the matter to
trial Court stands rejected. In view of the recalling of the order dated
16.2.2009, passed in Writ Petition No.156 of 1989, the position would be
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that the Writ Petition stands restored on the file of the learned Single
Bench of this Court obtaining the position of 16.2.2009. I make it clear
that I have not entered into the merits of Writ Petition while passing this
order. All points of all parties, so far Writ Petition is concerned, are kept
open to be argued before the learned Single Bench of this Court.
Rule made partly absolute. No order as to costs.
ig ( S.B.DESHMUKH, J.)
...
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