Allahabad High Court
Bachchu Prasad And Others vs Dy. Director Of Consolidation ... on 26 July, 2022
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 45
Case :- WRIT - B No. - 45867 of 2006
Petitioner :- Bachchu Prasad And Others
Respondent :- Dy. Director Of Consolidation Gorakhpur And Others
Counsel for Petitioner :- Kamal Kishore Mishra,Akhilesh Kumar Mishra,Dhruv Narayana,H.N. Upadhyay,Vijay Kumar Rai,Virendra Singh
Counsel for Respondent :- C.S.C.,Amrendra Singh,Manoj Kumar Tiwari,Rahul Sahai
Hon'ble Manoj Misra,J.
In Re:- Delay Condonation Application No.13 of 2022; and
Restoration Application No.14 of 2022
This Bench had dismissed Writ-B No.45867 of 2006 by a detailed judgment and order dated 01.12.2017 passed after hearing both sides.
To seek a review of the order dated 01.12.2017, a Review Application No.426393 of 2017 was filed, which was dismissed for non prosecution on 17.05.2019. Whereafter, a restoration application No.10 of 2019 was filed. The restoration application was allowed and the review petition was restored to its original number. Thereafter, the review application was placed before this Bench. Again, no one appeared to press the review application when the matter was listed on 10.11.2021. As a result, on 10.11.2021, the review application was dismissed for non prosecution.
Another restoration application along with a delay condonation application has been filed. In the delay condonation application it is stated that the clerk of petitioners' counsel could not mark the case when it was listed and therefore the petitioners' counsel could not appear. It is stated in the affidavit that as soon as the applicant came to know about rejection of the review application, he has applied for restoration.
Considering the explanation offered in the affidavit filed in support of the delay condonation application as well as the restoration application, the delay in filing the restoration application is condoned. The restoration application is allowed. The review application No.426393 of 2017 is restored to its original number.
In Re:- Review Application No.426393 of 2017
I have heard Sri V. Singh for the review applicant; and Sri Manoj Kumar Tiwari for the respondents 8, 9 and 15.
Sri V. Singh, learned counsel for the review applicant, has pressed the review application only on the ground that the petitioners had filed large number of documents along with the supplementary affidavit disclosing that the entries were in the name of the petitioners. The genuineness of those documents was not disputed yet, while deciding the writ petition, those documents have not been taken into consideration. He, therefore, submits that the judgment and order of this Court dated 01.12.2017 suffers from error apparent on the face of the record and needs to be reviewed.
I have perused the order dated 01.12.2017.
The documents which were submitted by the petitioners along with supplementary affidavit were noticed while dismissing the petition but they were not taken into consideration as those documents were not part of the record of the courts below. The relevant observations of the judgment and order dated 01.12.2017, which is under review, are extracted below:-
"Sri Vijay Kumar Rai, who appeared for the petitioners, submitted, by placing reliance on various documents filed along with the supplementary-affidavit, that, in fact, the entries were not against the petitioners and that for no good reason the original record was not summoned despite application.
The admissibility of the papers brought on record through supplementary-affidavit was challenged by the respondents' counsel on the ground that they were not part of the record of the courts below. He also challenged the veracity of those papers.
The learned counsel for the petitioners did not dispute that the revenue entries brought by supplementary-affidavit were not part of the record of the courts below. However, he submitted that the application to summon the original record was wrongly rejected.
Once it is not in dispute that the revenue entries annexed to the supplementary-affidavit were not part of original record of the courts below, they cannot be considered by this Court. However, whether application to summon original record was rightly rejected or not shall be dealt with at the appropriate stage of the judgment."
After noticing the submission of both sides regarding consideration of documents placed along with the supplementary affidavit, the Court held:-
"In so far as not summoning of the original record is concerned, at page 98 of the supplementary-affidavit, the petitioners have enclosed copy of order dated 07.01.1983 passed by the Consolidation Officer, which discloses that the application was dealt with and a report was obtained from the record-keeper and the application was thereafter rejected upon finding that the relevant records were torn. Once that was the position, of which there is no satisfactory denial by taking the Court through any objection to the report, non-summoning of the original record is of no consequence. Even otherwise, the secondary evidence of public documents was admissible. Accordingly, rejection of the application does not vitiate the proceeding."
In view of the above, it is clear from the extracts of the judgment dated 01.12.2017 that the issue raised in the review application was considered while deciding the writ petition.
It is well settled that a review is not to be used as a tool to re-hear the matter. Once the Court had addressed the issues raised and has taken its decision thereupon, after hearing both sides, a review would lie only if there is an error apparent on the face of record.
As this Bench does not find any error apparent on the face of record, the review application is misconceived and is, accordingly, dismissed.
Order Date :- 26.7.2022
AKShukla/-
