Prakash Shivajirao Deshmukh And ... vs Shivajirao Ramchandrarao ...
2003 Latest Caselaw 654 Bom

JUDGMENT

N.V. Dabholkar, J.

1. Heard Advocate Shri R.M. Borde for petitioners and Advocate Shri S.B. Agrawal for respondent Nos. 2 to 4. Respondent No. 1 is absent, although served.

2. The revision petition challenges judgment and order dated 11-10-1993 delivered by Civil Judge (J.D.), Tuljapur, in Civil Miscellaneous Application No. 2/1993, thereby allowing review petition filed by original defendant Nos. 2 to 4/respondent Nos. 2 to 4, setting aside thereby Judgment and decree passed in Regular Civil Suit No. 21/1982 by his predecessor on 30-12-1992.

3. Regular Civil Suit No. 21/1982 was filed by present revision petitioners against four defendants and present respondent Nos. 1 to 4 were defendant Nos. 1 to 4 in the suit. (Henceforth parties shall be referred to as plaintiffs and defendants Nos. 2 to 4 for the sake of convenience).

Plaintiffs had filed suit for declaration in respect of sale deed dated 9-12-1971 executed by defendant No. 1 - Shivajirao in favour of defendant Nos. 2 and 3 that the same was not binding on the plaintiffs. They had also prayed for cancellation of the same and possession of the subject land. The suit was decided by Judgment dated 30-12-1992, in favour of plaintiffs. It was declared that sale deed dated 9-12-1971 executed by defendant No. 1 in favour of defendant Nos. 2 and 3 was not binding on plaintiffs and defendant Nos. 2 and 3 were directed to handover possession of the suit land to the plaintiffs within one month from the date of order.

4. Certain events those occurred during pendency of the suit are relevant for the purpose of decision of this revision petition. Defendant Nos. 2 to 4 filed application (Exh.74) requesting the Court to frame an issue regarding defendant No. 4 being tenant in the subject land and for reference of the same to the competent authority under the tenancy law. This application was rejected by the trial Court vide order dated 6-10-1990.

Civil Revision Application No. 22/1991 was preferred by defendant Nos. 2 and 3 before this Court challenging the rejection of application (Exh.74). The revision petition came up before this Court for admission on 1-7-1992 and was summarily dismissed with following operative order :

"In this view of the matter, revision application is dismissed summarily. Suit is directed to be disposed of as expeditiously as possible."

5. Eventually it appears that, defendant No. 4 filed a separate revision petition against challenging the order dated 6-10-1990 passed below Exhibit 74 before this Court. There is no dispute that ad-interim stay of the suit was granted by order dated 17-7-1991 in this matter. Rule was issued and interim stay was confirmed by order dated 2-3-1992. It is also common ground that this revision application was disposed of on 14-1-2000 with following order :

"Rule discharged as suit already decided."

6. Defendant Nos. 2 to 4 on 1-2-1993 filed Civil Miscellaneous Application No. 2/1993 pointing out to the Court that the suit was decreed by judgment and order dated 30-12-1992, which was during the period when the stay ordered by this Court to the progress of the suit, was still in force and, therefore, the judgment and order should be reviewed. After reading the writ issued by this Court in Civil Revision Application No. 549/1991 dated 17-7-1991, which was at Exhibit 89 in the record of Civil Suit No. 21/1982, the Judge arrived at a conclusion that the suit was decided, while the stay ordered by this Court was in force and, therefore, the decision of the suit, which was in violation of the stay ordered by this Court was without jurisdiction.

7. Advocate Shri Borde, while arguing for revision petitioners, has accused defendant Nos. 2 to 4 of having played a fraud on the trial Court by a long drawn plan. He points out that in the Civil Revision Application No. 22/1991 filed by defendant Nos. 2 and 3, defendant No. 4 was not a party even as respondent. At the same time, Civil Revision Application No. 549/1991 filed by defendant No. 4 did not implead defendant Nos. 2 and 3 either as petitioners or respondents. (As pointed out by the Advocates, Revision Petition No. 22/1991 was presented in the High Court on 16-11-1990 and Revision Petition No. 549/1991 was presented on 5-12-1990.)

8. Advocate Shri Borde also pointed out that defendant Nos. 2 to 4 throughout being together is evident from following facts.

They had filed a common written statement. Application (Exh.74) was by defendant Nos. 2 to 4. Review petition was also filed by them together. They were represented by common lawyer in the trial Court. Both the revision petitions, one on behalf of defendant Nos. 2 and 3, and another on behalf of defendant No. 4, were also filed by the same lawyer. Thus, defendant Nos. 2 to 4 have played a fraud on the trial Court by not disclosing/rather reminding the trial Court of the stay issued by this Court vide order dated 2-3-1992 in Civil Revision Application No. 549/1991 and subsequently after having failed in the suit on merits, getting the order reviewed by pointing out the existence of stay in force, when the Judgment in original suit was delivered by the trial Court. According to Advocate Shri Borde, this situation does not fit in any of the requirements of Order 47, Rule 1(1) of the Code of Civil Procedure.

Advocate Shri Agrawal, while defending the impugned order on behalf of defendant Nos. 2 to 4, contended that the situation, that was considered by the trial Court, fits within the clause :

"Or on account of some mistake or error apparent on the face of record or for any sufficient reason."

According to Advocate Shri Agrawal, the judgment rendered by the trial Court during subsistence of the stay granted by higher Court, cannot be maintained in any case.

9. On considering Order 47, Rule 1, which prescribes, in what circumstances, by whom and on what grounds, revision petition can be preferred and entertained, it is evident that person aggrieved can approach the same judicial forum for review of its earlier decree or order, provided the same is not appealable or if the same is appealable, he has not preferred any appeal or the same is a decision on a reference from a Court of small causes. On what grounds, a review can be prayed is evident from following portion of Sub-rule (1) of Rule 1 :

".....and who, from the discovery of new and important matter or evidence, 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......."

The portion underlined (in italics) is the one relied upon by Advocate Shri Agrawal and, therefore, the question that arises for consideration is whether the judgment rendered by the trial Court during subsistence of stay clamped upon the progress of the suit by higher Court can be said to be a mistake or error apparent on the face of record or any other sufficient reason for setting aside the decree or order sought to be reviewed.

10. What is an error apparent on the face of the record, cannot be defined precisely or exhaustively, there being an element Of indefiniteness inherent in its very nature and it is required to be determined judicially on the facts and circumstances of each case. The error contemplated by the rule is not limited to matter of fact and it also includes error of law, although erroneous view of the law on a debatable point cannot be considered as error on the face of record. Some of the illustrations can be stated for useful reference, which were held to be error apparent on the face of record in earlier judicial pronouncements e.g. arrest of a woman in execution of a decree (contrary to Section 56 of Civil Procedure Code), where the Court has omitted to try a material issue, where a Court decides against a party on matters not in issue, where the Court overlooks the provision of an amending Act, where the Court fails to notice bar of limitation applicable to the facts appearing on the record, where a suit by mistake was dismissed, although findings on the issues recorded by the Judge warranted a decree, where important provision of law was not brought to the notice of the Court and, thus, not considered. No doubt the list of illustrations cannot be exhaustive.

The learned Judge has arrived at a conclusion that the decree passed was without jurisdiction since the same was passed while the stay imposed by this Court was in force. It is difficult to agree with the proposition that merely because the stay was imposed, the Court had no jurisdiction. At the most, it can be said that the trial Court was prohibited in proceeding with the suit. By grant of stay, jurisdiction of the Court to try the suit cannot be said to have been taken away. For the purpose of arriving at such a conclusion, the learned Judge has relied upon decision of Patna High Court reported at . With due respect, I am unable to agree with the view taken by learned Single Judge of Patna High Court. The jurisdiction of the Court is ordinarily determined by three factors - (1) territorial jurisdiction of the Court; (2) pecuniary Jurisdiction of the Court; and (3) subject jurisdiction of the Court. If the Court is trying any matter, which is beyond purview and scope of its jurisdiction limited by above three aspects, the Court can be said to be deciding a matter without jurisdiction. The stay clamped by the High Court was for a limited purpose that the suit should not progress further and thereby frustrate the revision petition filed by one of the parties feeling aggrieved by order passed during pendency of the suit.

11. Coming to the facts of present case, as rightly pointed out by Advocate Shri Borde, order below Exhibit 74 dated 6-10-1990, which was challenged by two separate revision petitions by defendant Nos. 2 and 3 on one side and defendant No. 4 alone on the other side, although otherwise they have sailed in the same boat, stood confirmed by dismissal of Civil Revision Application No. 22/1991. The revision application was not only dismissed, but the trial Court was directed to expedite the hearing of the suit as early as possible. Atleast defendant Nos. 2 and 3 were party to this revision petition and were aware of the directions of the High Court to expedite the suit. Defendant No. 4 was a party to the suit. He was represented by the lawyer when the suit progressed and there was no reason why he could not have pointed to the trial Court that he had already obtained stay of the suit and the trial Court may not proceed with the suit. Defendant No. 4 keeps quiet when the suit progresses, participates in it through the lawyer and the moment he finds that the judgment has gone against him, all the three defendants, defendant Nos. 2 to 4 together prefer a revision petition, are clearly signs that there was a plan by defendant Nos. 2 to 4. The matter does not end here. The revision of defendant No. 4 was disposed of by this Court on 14-1-2000, by taking a note of the fact that the suit is disposed of during pendency of civil revision application. Advocate Shri Agrawal has not pointed out that revision petitioner had taken any exception to the disposal of revision petition or had prayed this Court for appropriate action against the disposal of the suit, although the stay granted in the revision petition was still in force.

12. In order to consider whether stay granted by higher Court would come within the purview of the clause "mistake or error apparent on the face of the record or atleast as any other sufficient reason" for allowing the review petition, I have reproduced hereinabove all the grounds incorporated in Order 41, Rule 1, Sub-rule (1) of Civil Procedure Code, which enable an aggrieved party to seek review of a decree or order. As can be seen from the first part amongst the grounds available, the same affords the aggrieved party an opportunity to place additional material or evidence before the Court, which is discovered by that party after the impugned decree or order. Such matter or evidence was not available with the party in spite of exercise of due diligence or it was not within the knowledge of the party and, therefore, could not be produced when the impugned decree or order was passed. To some extent, this clause is an indicator of the fact that the grounds on which review can be sought are referable to the merits of the case. The new material or evidence, if taken into account, affects the decree or order already rendered to such an extent that Court is forced to decide the matter other way than it has already decided that is a fit situation for entertaining a review petition favourably.

The word "record" included in the clause "mistake or error apparent on the face of record" also must be read to refer to the record of the case, which affects the merits i.e. pieces of evidence in the form of depositions or documents produced for being considered by the trial Court. Viewed thus, writ of stay received from the appellate Court and contained in the miscellaneous file of the trial Court suit. If was not noticed or was not brought to the notice of the Court and Court proceeded in ignorance of its existence, it is difficult to accept the same as mistake or error apparent on the face of the record.

Any circumstance, which the review petitioners may try to fit in any of the three clauses made available as grounds for review, it is felt, ought to be referable to the merits of the case i.e. the additional material, which was not taken into consideration while passing impugned decree/order, or but for mistake or error apparent on the record, or due to any other reasons pointed out by the review petitioner ought to persuade the Court to render the decision of the suit, otherwise than already rendered. The expression "any other sufficient cause" is required to be interpreted as meaning a reason sufficient or grounds atleast analogous to those specified immediately previously.

Viewed from this angle, it must be said that all the three grounds on which review petition can be considered favourably ought to be referable to the merits of the case. By the additional material pointed out by the review petitioner, may be in the form of evidence, may be in the form of mistake/error/omission on the face of record or may be any other reason, Court ought to be persuaded to decide the matter in just the reverse manner and on merits.

Stay by the higher Court, if bona fide lost sight of, cannot, therefore, be a ground, which would be available for review of a decision on merits. Such an action may invite the penal action either against the plaintiff or the defendant or atleast the party, who was duty bound to bring the stay to the notice of the Court and even the lower Court, if it ignores the same in spite of being brought to the notice. But the same may not be sufficient to review and thereby set aside a judgment rendered on merits.

13. The revision petition is, therefore, allowed. The judgment and order dated 11-10-1993 passed by Civil Judge (J.D.), Tuljapur, in Review Petition numbered as Civil Miscellaneous Application No. 2/1993 is quashed and set aside.

Rule made absolute accordingly.