Allahabad High Court
Jhagru (Deceased)Thru. Sharda ... vs Chhotelal Thru. Sanjay Kumar And ... on 21 December, 2022
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- CIVIL MISC REVIEW APPLICATION No. - 200 of 2022
Applicant :- Jhagru (Deceased)Thru. Sharda Devi And Others
Opposite Party :- Chhotelal Thru. Sanjay Kumar And Others
Counsel for Applicant :- Saurabh Yadava
Hon'ble Jaspreet Singh,J.
Heard Shri Ashok Kumar Singh holding brief of Shri Lal Mani Tripathi, learned counsel for the review-petitioners, who has argued on this review application seeking review of the judgment and order dated 23.11.2022 passed by this Court, whereby the writ petition was dismissed.
The submission of the learned counsel for the review-petitioners is that the instant matter was listed on 16.11.2022 peremptorily. The Court had directed the parties to file their written synopsis and on 22.11.2022, both the parties were heard.
Shri Ashok Kumar Singh, learned counsel had argued on behalf of the review-petitioners while Shri Manuvendra Singh, Advocate has argued on behalf of the respondent No.1.
It is also stated that the written synopsis were filed only by the petitioners and the Court dictated the judgment and allowed the writ petition with findings that the impugned order in the writ petition are against the provisions of Section 19 of the U.P. Consolidation and Holdings Act, 1953.
It is also urged that on 22.11.2022 in absence of the learned counsel for the review-petitioners, the matter was fixed on 23.11.2022 for arguments and thereafter there was no notice and the matter came to be decided on 23.11.2022.
It is submitted that in the night of 22/23.11.2022, the mother of the learned counsel for the review-petitioner Shri Lal Mani Tripathi had left for her heavenly abode and in this view of the matter neither Shri Lal Mani Tripathi could appear nor the counsel Shri Ashok Kumar Singh, who had argued was present as he was at Prayagraj in some matters which were listed before the Court at Prayagraj.
It is also submitted that the grounds upon which the judgment has been rendered is based on submissions of the respondent that the land in question is not vacant and large constructions have been raised. The other ground raised by the learned counsel for the review-petitioners is that there was no deliberate delay on the part of the review-petitioners and it is sufficiency of cause which had to be seen and the length of delay is immaterial.
It is also submitted that there is fraud which has been practice and in such situation the fraud would nullify all acts and, therefore, the delay or the submissions of the respondent that constructions have came into land will not come in the way of the review-petitioners. It has also been submitted that some commissioner can be appointed to visit the site to ascertain the factual situation at the cost of the review-petitioners.
Apart from the above issues it has also been noticed in the judgment regarding non-impleadment of certain affected parties, this issue was clarified in the writ petition itself indicating that there are two other persons, out of which one is the son of the sister of the review-petitioners and other is the co-tenant.
Thus, it is urged that for all the aforesaid reasons, the submissions of the respondents which is prevailed were not duly refuted as the counsel for the review-petitioner was not present. For the reasons as aforesaid the matter requires review and an opportunity be given to the review-petitioner to substantiate the case.
The Court has considered the aforesaid submissions and at the outset it may be noted that the contention as recorded in the affidavit filed by the review-petitioner in Para-3 is absolutely contrary to the record.
This Court finds that in Para-3 which has been incorporated in the affidavit of Shri Indrabhan, who has sworn the affidavit is sworn on the basis of legal advise.
A specific query was put to Shri Ashok Kumar Singh, learned counsel for the review-petitioner that what is the basis upon which he has made this averments in the affidavit that after hearing the parties, the Court had dictated the judgment in open Court to which he replied that since his arguments had been heard by the Court, it was his understanding that the writ petition has been allowed in his favour.
Be that as it may, the aforesaid contention is absolutely incorrect and contrary to the record and the order dated 22.11.2022 is self evident. The averments made in Para-3 of the affidavit is not in appropriate language nor is it the true reflection and appears to have been deliberately incorporated. However, ignoring it for the moment if the submission of the learned counsel for the review-petitioner is concerned that Shri Lal Mani Tripathi on account of bereavement in the family could not attend on 23.11.2022 and Shri Ashok Kumar Singh, learned counsel was attending some matters at Prayagraj may be a cause to explain that why they were not present, but the fact remains that once the matter was listed peremptorily and it was being heard on day to day basis and the arguments of the petitioner had concluded and the respondent was to be heard and even there was no slip for adjournment or out of station slip nor any request was made on behalf of the petitioner and the matter has been heard and decided on merits, it cannot be said that the petitioner was not afforded an opportunity. This Court does not find any error apparent on the face nor it could be demonstrated by the learned counsel for the petitioner and even otherwise a rehearing on merits is not permissible in the cloak of a review.
For all the aforesaid reasons, this Court does not find that there is adequate ground to interfere in the review application which is accordingly dismissed.
Order Date :- 21.12.2022
Rakesh/-
