Bombay High Court
Bharat Narhari Patil vs Adinath Sakharam Solankhe And ... on 3 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO.25 OF 2021
IN
SECOND APPEAL NO.649 OF 2014
WITH
CIVIL APPLICATION NO.4554 OF 2020
BHARAT NARHARI PATIL
VERSUS
ADINATH SAKHARAM SOLANKHE AND OTHERS
...
Mr. V.D. Salunke, Advocate i/b Mr. M.V. Salunke and Mr. D.B. Pokale,
Advocates for the applicant
Mr. G.V. Mohekar, Advocate for the respondent No.1
Mr. B.S. Kudale, Advocate for the respondent No.2
Mr. B.A. Shinde, Advocate for the respondent No.3
Mr. S.S. Thombre, Advocate for respondent Nos.7-A to 7-D
Mr. M.B. Karande, Advocate for the respondent No.8-A
Mr. A.A. Nimbalkar, Advocate for the respondent No.8-B
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 22nd JULY, 2021
PRONOUNCED ON : 03rd AUGUST, 2021.
ORDER :
1 Present review petition has been filed by respondent No.3 in
Second Appeal for review of certain observations in the order passed by this
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Court on 02.04.2019 in Second Appeal No.649 of 2014. It will not be out of
place to mention here that the said appeal was filed by the original defendant
No.8-present respondent No.1 challenging the Judgment and Decree passed
in Regular Civil Suit No.200/1990 filed by the respondent No.1 therein i.e.
present respondent No.2 for partition and separate possession. The decree
was passed by Joint Civil Judge Junior Division, Majalgaon, Dist. Beed. The
said decree was challenged by original defendant No.8 in Regular Civil
Appeal No.186/2004 (old R.C.A. No.10/2004) before learned Adhoc District
Judge-1, Majalgaon, so also, the decree was challenged by original defendant
No.1 by filing Regular Civil Appeal No.96/2004 (old R.C.A. No.3/2001).
Both the appeals came to be dismissed by a common Judgment on
08.02.2007. The Second Appeal, which was filed by original defendant No.8
was disposed of without admitting, by this Court on 02.04.2019, as it was not
raising any substantial question of law. It will not be out of place to mention
here that the present review petitioner was represented by Advocate in the
Second Appeal and he was heard in the Second Appeal.
2 Heard learned Advocate Mr. V.D. Salunke for the review
petitioner, learned Advocate Mr. G.V. Mohekar for the respondent No.1,
learned Advocate Mr. B.S. Kudale for the respondent No.2, learned Advocate
Mr. B.A. Shinde for the respondent No.3, learned Advocate Mr. S.S. Thombre
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for respondent Nos.7-A to 7-D, learned Advocate Mr. M.B. Karande for
respondent No.8-A and learned Advocate Mr. A.A. Nimbalkar for respondent
No.8-B.
3 It has been vehemently submitted on behalf of the review
petitioner that in para No.8 of the order passed by this Court, this Court, this
Court has observed that, "at the time of execution of the Judgment and
Decree, if possible, the property sold to the present appellant can be put to
the share of defendant No.2 and this observation may be considered by the
executing Court/executing authority." is the portion, by which the review
petitioner is aggrieved. According to the review petitioner, he was not
properly represented and his defence was not at all considered. It is stated
that it was not brought to the notice of any Court that the review petitioner
has not sold any land to respondent No.1 in this application. According to
the review petitioner, the sale deed, which is shown by the respondent No.1,
was never legal, but it was obtained by fraud. According to the review
petitioner, he had taken hand loan of Rs.15,000/- from respondent No.1 and
the respondent No.1 had taken signatures of the review petitioner on some
documents. Review petitioner is unable to read and write properly, and
therefore, by taking disadvantage of his situation the respondent No.1 had
grabbed his land. According to him, he was not represented properly even
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before the Courts below and his defence has not been considered properly.
According to the learned Advocate representing the review petitioner, above
said observation, in para No.8 by this Court, are pre-judicial to the interest of
the review petitioner. In fact, it should have been held that the respondent
No.2 has no right in the suit land. The partition should be made equally, that
is, by metes and bound. If at all that decree is to be executed and now only
the portion, which has been allegedly sold, cannot be put to the share of the
review petitioner. Learned Advocate for the review petitioner also submitted
that by expunging that para the matter be remanded for its proper
adjudication.
4 The learned Advocates appearing for various respondents have
strongly objected and submitted that the scope of the review petition under
Section 114 of the Code of Civil Procedure, 1908 cannot be made large and
what can be challenged by way of appeal cannot be included in the review
petition. There is no error apparent on the face of the record. Both the
Courts below as well as this Court elaborately considered the transactions.
Further, the present review petitioner had never challenged the decree
independently. Regular Civil Appeal No.96/2004 was filed by original
defendant No.1, whereas Regular Civil Appeal No.186/2004 was filed by
original defendant No.8. Now, the present review petitioner cannot take a
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back door entry. He had every right to challenge the alleged sale deed, but
he has not done that. Now, he cannot say that the said sale cannot be put to
his share. This Court has taken note of the fact that both the Courts below
have held that defendant Nos.1 and 2 have failed to prove the relinquishment
by the plaintiff, which is stated to be on the basis of cash amount as well as
gold given to her. Further, when the suit was filed prior in time to the
transaction in sale between defendant No.2 and defendant No.8, it was also
held that the said transaction cannot be a collusive suit in between the
plaintiff and defendant Nos.1 and 2. It was held that the defendant No.2 has
4/16th share in the suit property, and therefore, when he alone had entered
into that transaction, it was observed that, if possible, it should be put to the
share of the present review petitioner. There is absolutely no necessity to
entertain this review.
5 At the outset, the scope of the review under Section 114 read
with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 is limited. If we
see the review application/petition, it is totally silent on the point as to what
is that error apparent on the face of the record. Whatever the review
petitioner is arguing now, that the sale deed was got obtained from him by
fraud and real nature of the transaction was never raised by him before any
Court. If we consider the issues framed by the learned Trial Judge, it can be
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seen that there was not an issue in respect of the transaction between the
defendant No.2 and defendant No.8. Rather it can be seen that initially the
defendant No.2 i.e. present review petitioner has not filed written statement
but later on he filed pursis at Exh.95 before the learned Trial Judge and
adopted the written statement filed by the defendant No.1. Getting the sale
deed executed by fraud is definitely within the personal knowledge or it
requires his own knowledge to be pleaded and proved. It was not done, so
also, he has not made such kind of prayer to the First Appellate Court.
Merely by now saying that he was not properly represented, he cannot say
that there is error apparent on the face of the record of this Court.
6 The scope of the review petition is required to be considered. In
Vinay Sharma & another Vs. State (NCT of Delhi) & others [(2018) 8 SCC
186], it has been observed that "Power of review cannot be confused with
appellate power which enables a superior court to correct all errors
committed by a subordinate court. A repetition of old and overruled
argument is not enough to reopen concluded adjudications." Here, in this
case, the points which have been raised by the review petitioners can be
termed as repetition of old and overruled arguments. Further, in
Haryana State Industrial Development Corporation Limited Vs. Mawasi &
others [(2012) 7 SCC 200], it has been held that "Roving inquiry or de novo
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hearing in guise of review is impermissible." Reliance was placed in this
decision on the case Thungabhadra Industries Ltd. Vs. Govt. of A.P.[AIR 1964
SC 1372] (Three Judges Bench), wherein it has been observed thus -
"11.... A review is by no means an appeal in disguise
whereby an erroneous decision is reheard and corrected, but lies only
for patent error. We do not consider that this furnishes a suitable
occasion for dealing with this difference exhaustively or in
any great detail, but it would suffice for us to say that where
without any elaborate argument one could point to the error and
say here is a substantial point of law which stares one in the face, and
there could reasonably be no two opinions, entertained about
it, a clear case of error apparent on the face of the record would be
made out."
Further note was taken in respect of the decision in Parsion Devi
Vs. Sumitri Devi [(1997) 8 SCC 715], wherein it has been observed thus -
"9. ... An error which is not self- evident and has to be detected by a
process of reasoning, can hardly be said to be an error apparent on
the face of the record justifying the court to exercise its power
of review under Order 47 Rule 1 CPC. ... A review petition, it must
be remembered has a limited purpose and cannot be allowed
to be 'an appeal in disguise'."
The same ratio is reiterated in Vikram Singh alias Vicky Walia &
another Vs. State of Punjab & another [(2017) 8 SCC 518], wherein it has
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been held that "Review cannot be made on those grounds which were already
urged during appeal." In this case, the term "an error apparent on the face of
the record" has been explained with the help of earlier pronouncement of the
Hon'ble Apex Court in Kamlesh Verma Vs. Mayawati [(2013) 8 SCC 320],
wherein it was held that "an error which is not self-evident and has to be
detected by a process of reasoning is not an error apparent on the face of the
record." The ratio laid down in State of West Bengal & others vs. Kamal
Sengupta & another, (2008) 8 SCC 612, can be taken into account wherein it
has been observed thus -
"21. At this stage, it is apposite to observe that where a review is
sought on the ground of discovery of new matter or evidence, such
matter or evidence must be relevant and must be of such a character
that if the same had been produced, it might have altered the
judgment. In other words, mere discovery of new or important
matter or evidence is not sufficient ground for review ex debito
justitiae. Not only this, the party seeking review has also to show
that such additional matter or evidence was not within its knowledge
and even after the exercise of due diligence, the same could not be
produced before the court earlier.
22. The term "mistake or error apparent" by its very connotation
signifies an error which is evident per se from the record of the case
and does not require detailed examination, scrutiny and elucidation
either of the facts or the legal position. If an error is not self evident
and detection thereof requires long debate and process of reasoning,
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it cannot be treated as an error apparent on the face of the record for
the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To
put it differently an order or decision or judgment cannot be
corrected merely because it is erroneous in law or on the ground that
a different view could have been taken by the court/tribunal on a
point of factor law. In any case, while exercising the power of review,
the court/tribunal concerned cannot sit in appeal over its judgment/
decision."
7 Therefore, taking into consideration the scope of the review,
provision of review, facts of the present case and the law laid down in above
said authorities, this is absolutely not fit case where the order passed by this
Court on 02.04.2019 deserves to be reviewed. Further, those observations
are based on legal principle and to do the equality between the parties when
the sale deed was executed by the defendant No.2 in favour of defendant
No.8 on 19.05.1992 and till today he has not got it set aside by resorting to
any legal remedy, then it cannot be the part of the present review. There is
absolutely no merit in the application. It deserves to be rejected.
Accordingly it is rejected with costs. In view of this, interim relief granted
earlier stands vacated. Civil Application No.4554 of 2020 stands dismissed.
( Smt. Vibha Kankanwadi, J. )
agd
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Date : 03.08.2021.
Later on :
8 After dismissal of the Review Application, learned Advocate for
the applicant prays for stay, as his client intends to approach a Higher Court.
9 In fact, in the Review Application all the things in detail have
been dealt with and as to how the present applicant had not filed the appeal
and then only on the basis of the observations, he has filed the Review
Application. Taking into consideration the entire facts and circumstances of
the case, his oral request for stay is rejected.
( Smt. Vibha Kankanwadi, J. )
agd
