Allahabad High Court
Satish Mehta And Another vs Kamleshwar Shahi on 20 June, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 19.05.2022
Delivered on 20.06.2022
Case :- MATTERS UNDER ARTICLE 227 No. - 1136 of 2021
Petitioner :- Satish Mehta And Another
Respondent :- Kamleshwar Shahi
Counsel for Petitioner :- Vinayak Mithal
Counsel for Respondent :- Chandra Shekhar Agnihotri
Hon'ble Siddharth,J.
Order on Civil Misc. Review Application No.454 of 2021.
Heard Sri Vinayak Mithal, learned counsel for the review petitioners and Sri Chandra Shekhar Agnihotri, learned counsel for the respondent.
This review application has been filed on behalf of petitioners praying for review of the judgment and order dated 26.11.2021 passed by this Court in Matter Under Article 227 No. 1136 of 2021.
The grounds raised in the review application are that the judgment and order dated 26.11.2021 suffers from error apparent on the face of record and if permitted to continue would result in failure of justice. The validity of judgment and decree pronounced by Appellate Authority / Additional District & Sessions Judge, Special Judge (Court no.3), District Gorakhpur in Rent Appeal No.15 of 2007 on 28.03.2019 was also challenged in the petition. The need set-up by the landlord regarding his employees was not bonafide need of any of his family member as defined under Section 3(g) of U.P. Act no.13 of 1972. He had kept employees to look after his business and not for his personal need and therefore, the release application ought not to have allowed.
Learned counsel appearing on behalf of tenant-respondents has submitted that once this court found that there is no good ground for setting aside the order dated 11.02.2020 passed in Misc. Case No.100 of 2019 by the Appellate Authority, the relief regarding setting aside the judgment and decree dated 28th March, 2019 in Rent Appeal No.15 of 2017 is deemed to be denied to the petitioners. Only after the court had reached the conclusion that the Misc. Case aforesaid deserves to be allowed, the question of going into merits of the judgement and decree dated 28.03.2019 passed in Rent Appeal No. 15 of 2017 would have arisen.
After hearing the rival contentions, this court finds that Power of Review has been provided under Order 47 Rule (1) C.P.C. As per the provisions contained in Order 47 Rule (1) C.P.C the review application can be filed by a party to a case against a decree or order after discovery of new evidence or matter, which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason.
In the present case review of the judgment and order of this court is sought on the ground that on account of non consideration of the merits of the judgment and order dated 28.03.2019 passed by the Appellate Authority in Rent Appeal No.15 of 2019 there is error apparent on the face of record. This Court finds that the petition under Article 227 was preferred against the judgment and order dated 28.03.2019 passed by Appellate Authority in Rent Appeal No.15 of 2017, which was decided against the tenant petitioners allowing the release application of the respondent. The petition was also filed challenging the order dated 11.02.2020 passed in Misc. Case No.100 of 2019 whereby the Appellate Authority refused to recall judgement and order dated 28.03.2019 passed in Rent Appeal No.15 of 2017. This court finds that by mistake in the second paragraph of the judgement and order dated 26.11.2021 the challenge to judgment and order dated 28.03.2019 passed in Rent Appeal no.15 of 2017 could not be mentioned. However, in the second last paragraph no. 16 of the judgment, it has clearly been mentioned that this Court does not finds any good ground to set aside the judgement and orders impugned. The judgement clearly refers to the judgement and order passed in Rent Appeal No.15 of 2017 and order dated 11.02.2020 passed in Misc. Case No.1100 of 2019 praying for recall of the judgement and order dated 28.03.2019 passed in Rent Appeal No.15 of 2017.
This court is of the view that there is no error apparent on the face of record and once recall application itself was not found to have been rejected wrongly by the appellate authority, there is no question of examining the merits of the judgement and order dated 28.03.2019 of appellate authority. Only after the court had reached the conclusion that tenant-petitioners have made out good ground for recalling the order dated 11.02.2020 rejecting their recall application, this court would have gone into merits judgement and order dated 28.03.2019 of appellate authority.
Regarding the other ground of review raised that bona fide need of the landlord was not proved and as per Section 3(g) of the Act the need was not for the family members, it can only be said that it is regarding the merits of the judgement and cannot be made subject matter of review.
In view of the above consideration, there does not appears to be any good ground for reviewing of the judgement and order dated 26.11.2021 passed by this court. The grounds taken in review application are akin to the grounds of appeal and cannot be made the basis of review.
Review application is misconceived and is accordingly dismissed.
There shall however be no order as to costs.
Order Date :- 20.06.2022
SS
