Allahabad High Court
Amrita Devi vs Beni Prasad And 5 Others on 30 January, 2023
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- CIVIL MISC REVIEW APPLICATION No. - 34 of 2023
Applicant :- Amrita Devi
Opposite Party :- Beni Prasad And 5 Others
Counsel for Applicant :- Ashish Kumar Singh,Prashant Kumar Tripathi
Counsel for Opposite Party :- Bholeshwar
Hon'ble Ajit Kumar,J.
Heard Sri Ashish Kumar Singh, learned counsel for the revision-applicant and Sri Bholeshwar, learned counsel for the respondent-landlord.
In this review application the petitioner has sought review of my judgment dated 20th December, 2022 on the ground that argument raised by the revision-applicant before this Court that the property being Municipal House Nos.- 46/1 and 46/1A/1 were two different properties, were not considered and so I proceeded on an absolutely wrong procedure by raising a misplaced presumption that both the houses were one and the same.
The second ground seeking review of my order is that the court has returned a finding that the premises in question stood identified for the purposes of possession and for the municipal purposes the properties in question got allotted Nos. 46/1 & 46/1A/1, which is not supported by the evidence on record.
The third argument advanced is that the Court wrongly proceeded to hold in its order that the application to seek survey commission's report was rejected by the court sitting in revision.
No other ground except the above three grounds has been pressed in the review application.
Per contra, it is argued by Sri Bholeshwar, learned counsel appearing for the respondent-landlord that the court has noticed the argument qua the ground No.1 raised in the review application regarding two different houses being Nos. 46/1 and 46/1A/1 as had been taken before the court sitting in revision and has further referred to similar arguments raised before this Court vide paragraph 10 of the judgment. Thus, it is submitted that there is no such error apparent on the face of record for non consideration of the argument advanced and the grounds raised in the petition. So the plea taken that this ground had escaped the attention of the court is totally baseless.
In reply to the second argument, learned counsel for the respondent-landlord submits that the court has very much considered the pleadings of the parties by justifying the findings recorded by the trial court that both the houses stood identified as one property, being part of the one another, and therefore, this also cannot be said to be an error apparent on the face of record that may warrant this Court to review its judgment.
In reply to the third ground, learned counsel for the petitioner has drawn the attention of the Court towards the order passed by the presiding officer in the Revision No.- 39 of 2005 disposing of the application of the tenant petitioner vide order dated 11th October, 2006 not granting it on the ground that if the court would find it suitable at the time of argument, it would do the same.
He further submits that the petitioner does not want to vacate the premises even after the long drawn litigation having lost by her at every stage in the hierarchy of forum.
Having heard learned counsel for the respective parties and their arguments raised across the bar, insofar as the first ground raised is concerned, I find merit in the submission advanced by the learned counsel for the respondent-landlord that the judgment takes care of this very ground referred to in the SCC Revision No.- 39 of 2005 before the court below and also dealt with the said argument regarding two different properties vide paragraph 10 of the judgment sought to be reviewed.
Insofar as second and third arguments are concerned and regarding findings returned by this Court, in my considered view this cannot be a ground for review. Findings returned by a court, after appreciating pleadings on grounds cannot be a matter of review. Mentioning of a fact which may not have been pleaded or if a document has escaped the eyes of court may be an error apparent to review an order or judgment but that is not a case here. Hence I do not find any merit in the review application and it deserves dismissal.
At this stage, Sri Ashish Kumar Singh, learned counsel for the petitioner states that the petitioner wants to vacate premises in descent manner and honourably too, instead of being coerced and forced to vacate the premises.
Accordingly, he prays that some reasonable time may be allowed to vacate the premises in question.
Learned counsel appearing for the respondent does not have any objection to this above prayer provided the petitioner honours the undertaking so being advanced before this Court in the form of request through her counsel.
In view of above, it is hereby provided that in the event petitioner has not vacated or released the premise in question till date, she will be vacating the premises in question in all circumstances by 20th March, 2023 and shall be furnishing an affidavit of undertaking to this effect before the court concerned by 9th February, 2023.
It is however clarified that in the event petitioner fails to honour the undertaking advanced before this Court through counsel and fails to furnish affidavit of undertaking, the decree already drawn shall be enforced forthwith and for such act and conduct of non-compliance of the petitioner, she will also be liable for contempt of this court under Contempt of Courts Act, 1971.
Subject to aforesaid observations and directions, this review application is dismissed and is consigned to records.
Order Date :- 30.1.2023
Anurag
