Bombay High Court
Shivanand Kallyanappa Solshe vs Prashant Shivaji Survase And ... on 8 June, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO.147 OF 2020
IN
SECOND APPEAL NO.171 OF 2019
SHIVANAND KALYANAPPA SOLSHE
VERSUS
PRASHANT SHIVAJI SURVASE AND OTHERS
...
Mr. S.G. Chincholkar, Advocate for the applicant
Mr. P.K. Deshmukh, Advocate for respondent No.1 to 5
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 16th FEBRUARY, 2021
PRONOUNCED ON : 08th JUNE, 2021.
ORDER :
1 Present review has been filed by the original appellant under
Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908
for the review of Judgment and order passed by this Court in Second Appeal
No.171 of 2019 on 13.03.2019, whereby the Second Appeal was dismissed in
limine, at the stage of admission itself, holding that no substantial question of
law has been raised. It will not be out of place to mention here that the
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present applicant had approached Hon'ble Apex Court by filing Special Leave
to Appeal (C) No.12966 of 2019 and the liberty was granted to the
applicant/appellant by order dated 02.08.2019 by Hon'ble Apex Court to file
review.
2 Heard learned Advocate Mr. S.G. Chincholkar for the applicant
and learned Advocate Mr. P.K. Deshmukh for respondent Nos.1 to 5.
3 It has been vehemently submitted on behalf of the review
applicant that the applicant/appellant is the original defendant No.2, who
had filed the Second Appeal challenging the Judgment and order passed by
learned Principal District Judge, Osmanabad in Miscellaneous Civil
Application No.15/2017, which was preferred for condonation of delay in
filing First Appeal; as there was delay of 03 years 07 months and 21 days in
filing Regular Civil Suit. By the said Miscellaneous Civil Application and
thereby filing First Appeal the present applicant intended to challenge the ex-
parte Judgment and Decree passed in Special Civil Suit No.136/2011 by
learned 5th Joint Civil Judge Senior Division, Osmanabad on 05.06.2013,
whereby the suit for partition, separate possession and cancellation of the
sale deed holding that the said sale deed is not binding on the share of the
plaintiffs came to be decreed and the sale deed in favour of present
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applicant/appellant dated 13.10.2011 executed by original defendant No.1
was held to be not binding on the original plaintiffs-present respondent Nos.1
to 4. The said application for condonation of delay before the First Appellate
Court came to be rejected on 21.06.2018. The appellant had purchased
agricultural land to the extent of 06 H 40 R situated from village Murta, Tq.
Tuljapur, Dist. Osmanabad for a consideration of Rs.9,30,000/-. He had
issued public notice in the newspaper. He had taken all the precautions while
purchasing the suit property from original defendant No.1. In the suit, when
the present applicant was made as defendant No.2 he appeared in the matter
after the notice was served on him, however, he had not engaged any
Advocate, since he was under the impression and a representation was made
by the original defendant No.1 that he will solve the family matter and there
will not be a problem for the present applicant. He did not participate in the
litigation, but defendant No.1 did not keep his promise. The matter was
decided ex parte against the present applicant. Applicant had absolutely no
knowledge about the decision in the matter. He came to know it for the first
time on 17.01.2017 and thereafter he had applied for the certified copies and
approached the First Appellate Court within 15 days from the date of the
knowledge. However, there was delay of 03 years 07 months and 21 days.
The learned Principal District Judge, Osmanabad rejected the application
and, therefore, by way of Second Appeal the applicant had approached this
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Court, however, by order dated 13.03.2019 this Court had also disposed of
the Second Appeal holding that no substantial question of law, as
contemplated under Section 100 of the Code of Civil Procedure, have been
raised. In fact, there is error apparent on the face of the record by this Court.
This Court ought to have taken liberal approach while deciding the said
Second Appeal. Now, the Hon'ble Apex Court has given liberty to file review
application and accordingly the applicant is before this Court. The applicant
has every hope of success in his Second Appeal and, therefore, the earlier
order passed by this Court deserves to be reviewed.
4 The learned Advocate for the applicant has relied on the decision
in M.K. Prasad vs. P. Arumugam, (2001) 6 SCC 176, wherein it has been held
that -
"In construing Section 5 of the Limitation Act, the court has to
keep in mind that discretion in the section has to be exercised to
advance substantial justice. The Court has a discretion to condone or
refuse to condone the delay as is evident from the words "may be
admitted" used in the section...........
Even though the appellant appears not to be as vigilant as he
ought to have been, yet his conduct does not, on the whole, warrant
to castigating him as an irresponsible litigant. He should have been
more vigilant but his failure to adopt such extra vigilance should not
have been made a ground for ousting him from the litigation with
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respect to the property, concededly to be valuable. While deciding the
application for setting aside the ex parte decree, the court should
have kept in mind the judgment impugned, the extent of the property
involved and the stake of the parties. The inconvenience caused to
the respondent for the delay on account of the appellant being absent
from the court in this case can be compensated by awarding
appropriate and exemplary costs."
4.1 Further reliance has been placed on the decision of co-equal
Bench of this Court in Pushkaraj Ratnakar Wagh vs. V.V. Industries and
another, 2018 SCC OnLine Bom 6482, wherein the substantial question of
law, that was raised was, "Whether the first appellate Court erred in not
following settled principles of law while rejecting the application for
condonation of delay ? This Court answered the same question in affirmative
and by holding that no one should be condemned unheard. Reliance was
placed on the decision in M.K. Prasad's case (supra) and other cases.
4.2 Further reliance has been placed on the decision in Robin Thapa
vs. Rohit Dora, (2019) 7 SCC 359, wherein it has been held that -
"Ordinarily litigation is based on adjudication on merits of
contentions of parties. Litigation should not be terminated by default,
either of plaintiff or defendant. Cause of justice requires that as far as
possible, adjudication be done on merits."
Based on these decisions the learned Advocate for the review
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applicant submitted that the review be allowed and the Second Appeal be
taken up for its decision.
5 Per contra, the learned Advocate for the respondent Nos.1 to 4
submitted that this Court has rightly dismissed the Second Appeal on the
ground that no substantial question of law has been raised. The facts in the
case were properly considered by this Court. Inspite of giving an opportunity
to the applicant before the First Appellate Court to show the reason for his
absence or not taking any action for a period of about 03 years 07 months
and 21 days except bare words there was nothing. Further, whatever
representation would have made, even if we consider the thing, for the sake
of argument, that it was made by the original defendant No.1 to the
defendant No.2 and not by the plaintiffs, how the defendant No.2 could have
kept mum from taking part in the litigation, is a question. There was overt
act or any such act on the part of the appellant, which could have made
defendant No.2 to abstain himself from participating in the litigation.
Therefore, plaintiffs cannot be asked to suffer. They have already suffered at
the hands of original defendant No.1, who had not given their share from the
suit property. Learned Advocate for the respondent Nos.1 to 5 has raised
question of maintainability of review petition itself. He submitted that in the
review application, absolutely no ground has been shown as to why this
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Court should review its earlier order. There is absolutely no error apparent
on the face of the record. This Court cannot sit as an appellate Court on its
own order. Reliance has been placed on the decision in Haryana State
Industrial Development Corporation Ltd. vs. Mawasi and others, AIR 2012
SUPREME COURT 3874, wherein it has been observed that -
"The power of review is a creature of statute, Court, quasi-
judicial body or administrative authority cannot review its judgment
or order or decision unless it is legally empowered to do so."
5.1 Further reliance has been placed on the decision in Kishor R.
Madan vs. Ramesh A. Phatnani, 2004(1) ALL MR 176, wherein this Court
had observed -
"Review proceedings cannot be equated with the original
hearing of the case or an appeal. Finality to the order passed by the
court cannot be revoked and the matter cannot be reconsidered
except when glaring omission or patent mistake or grave error has
crept up in the order delivered earlier. Merely because the order
sought to be reviewed was overruled in another case subsequently is
no ground to review the decision."
5.2 Further reliance has been placed on the decision in Lily Thomas
vs. Union of India and others, AIR 2000 SUPREME COURT 1650, wherein it
has been observed that -
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"The dictionary meaning of the word "review" is "the act of
looking, offer something again with a view to correction or
improvement. It cannot be denied that the review is the creation of a
statute. The power of review can be exercised for correction of a
mistake and not to substitute a view. Such powers can be exercised
within the limits of the statute dealing with the exercise of power.
The review cannot be treated as an appeal in disguise. The mere
possibility of two views on the subject is not a ground for review.
Once a review petition is dismissed no further petition of review can
be entertained. The rule of law of following the practice of the
binding nature of the larger benches and not taking different views by
the Benches of coordinated jurisdiction of equal strength has to be
followed and practiced. However, the Supreme Court in exercise of
its powers under Art. 136 or Art. 32 of the Constitution and upon
satisfaction that the earlier judgments have resulted in deprivation of
fundamental rights of a citizen or rights created under any other
statute, can take a different view notwithstanding the earlier
judgment."
6 Relying upon these decisions it has been vehemently submitted
on behalf of the respondent Nos.1 to 5 that there is absolutely no necessity to
review the order passed by this Court on 13.03.2019.
7 At the outset, the background has to be noted further in detail
which is already mentioned by this Court in order dated 13.03.2019 and
aforesaid paras of this order itself. Plaintiffs had come with a case that
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plaintiff No.4 is the wife of original defendant No.1 and plaintiff Nos.1 to 3
are their children. Plaintiffs have share to the extent of 06 H 40 R, which
was on the western side of Gat No.207, which originally admeasures 12 H 34
R situated at village Murta, Tq. Tuljapur, Dist. Osmanabad. Plaintiffs
specifically contended that the said property belongs to the Hindu Joint
Family. Defendant No.1 sold the said property to defendant No.2 on
13.10.2011 without their consent. It was their clear case that defendant No.1
had no exclusive right to sell the said property and, therefore, they filed the
suit for partition and separate possession as well as declaration that the sale
deed is not binding on them. Defendant No.1 had appeared in the matter but
he had not filed the written statement. Defendant No.2 though served even
failed to appear. Thereafter, after taking into consideration the oral form of
affidavit-in-chief of plaintiff No.4 and the revenue records, the suit came to
be decreed. It was held that each of the plaintiff has 1/5 th share in the suit
property. The declaration was given that the sale deed executed by
defendant No.1 in favour of defendant No.2 on 13.10.2011 was not binding
on the plaintiffs share. It is to be noted that said Miscellaneous Civil
Application No.15/2017 challenging the said Judgment and Decree passed by
the learned trial Judge in Special Civil Suit No.136/2011 was filed by the
present review applicant-original defendant No.2 with condonation of delay,
as there was delay of 03 years 07 months and 21 days. The main contention
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that was raised by the original defendant No.2 was that he had no knowledge
about the pronouncement of Judgment and Decree by the Trial Court. He
was suffering from Hypertension, Blood Pressure and Diabetes and due to old
age and continuous treatment, he was advised by the Doctor to take total bed
rest. He came to know about the Judgment and Decree only on 25.01.2017
and thereafter he filed application for certified copies.
8 From the record, that is, produced it could be seen that the
present review applicant preferred not to lead any evidence to support the
contention in his application for condonation of delay. Only on the basis of
submissions of both the Advocates the application came to be decided. It was
held by the First Appellate Court that there was nothing on record which
would support the reasons given by the defendant No.2 for his absence
before the Trial Court. This Court has observed in its earlier order which is
now under review that there was inordinate delay and the reason was not
supported by any documentary evidence, though it was contended that the
Doctors had advised the review applicant for the total bed rest. He could not
support it by any documentary evidence. Further, even the calculation of his
age was also made by this Court and when the said application was filed for
condonation of delay, he was about 48 years old, which cannot be said to be
an old aged. Thus, it can be seen from the record that once the opportunity
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was given to the defendant No.2 to contest the suit when the notice was
served upon him. Another opportunity was given to him to put forth
everything before the Court when an opportunity was given to him to support
his reasons for condoning the delay. On both the occasions he has not taken
benefit. Now, every endeavour is tried to be made that he has to be
condemned unheard, which is absolutely not a true fact, if we consider the
record. He had come with a case that he was represented by defendant No.1,
that he would sort out the family dispute. In fact, no such promise appears to
have been given by the defendant No.1 to the defendant No.2. They had
taken the legal recourse for adjudication of their rights in the property. There
was opportunity for the defendant No.2 to lead evidence before the First
Appellate Court and he could have examined the defendant No.1 as his
witness to support the fact that defendant No.1 had given the promise that he
would sort out the family problem. Even if after giving proper opportunity
evidence is not led, merely on the oral contention that the original defendant
No.2 was asked to take bed rest for a period of 03 years 07 months and 21
days, the Court was not supposed to believe it. No doubt, liberal approach
has to be taken while deciding application for condonation of delay, however,
it comes with a rider that it can be used, that is, the liberal approach can be
used only in favour of those litigants who behaved rationally. When the law
on this point crystallized by Hon'ble Apex Court says that said application
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could be considered liberally does not presume that every application for
condonation of delay should be allowed. It depends upon the reason that has
been given along with the supporting documents or evidence. The ratio in
M.K. Prasad's case (supra) cannot be denied, but under which provisions or
under which circumstances the observations were made in that case are
required to be considered. It was a case where the counsel for the appellant
had not appeared in the matter, and the other defendants had not contested
the claim of the respondent therein. Under the circumstance, the person who
was appearing on behalf of the company had left the service since 1994 and,
therefore, the appellant therein was unaware about the passing of any
decree. In that context Hon'ble Apex Court had observed that the appellant
was not vigilant, as he ought to have been but his conduct could not have
been castigated him as irresponsible litigant. Here, the facts are totally
different. Inspite of service of summons defendant No.2 preferred not to
appear before the Court and contest the case, but then he believed in the
alleged representation made to him by the defendant No.1. He has not come
with the case that he had approached Advocate and when he gave entire
facts to the Advocate, even the Advocate had advised him to wait and watch
and not to appear in the matter before the Court. Therefore, the observations
by this Court in Pushkaraj's case (supra) are not applicable. In that case also
the facts were almost similar to M.K. Prasad's case (supra). The appellant
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had engaged the Advocate. Appellant's father was a senior citizen and was
retired AIS officer and, therefore, he was totally dependent upon him,
because the appellant was met with an accident therein and, therefore, could
not attend the Court. Under those circumstances, when their contentions
were not accepted by First Appellate Court, this Court held that he could
have been condemned unheard. Here, the facts are different.
9 If we peruse the review application, it is totally silent on the
point, as to whether this Court had erred or what is the error apparent on the
face of the record while deciding the Second Appeal on 13.03.2019. Those
grounds, which could be only taken in the Second Appeal, have been
mentioned or reported again. Hon'ble Apex Court had given the liberty to
the present review applicant to approach before this Court. But for what
purpose the Special Leave, that was filed before the Hon'ble Apex Court, was
withdrawn is not made clear. Though the said liberty is given to the present
review applicant, the review applicant is bound to show as to where is the
error apparent on the face of the record, when this Court decided the
application on 13.03.2019. The ratio laid down in Haryana State Industrial
Development Corporation Ltd. (supra), Kishor R. Madan (supra) and Lily
Thomas (supra) are applicable here. Further this Court in Review
Application (Stamp) No.14527 of 2020 observed that -
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7. 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 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
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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 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."
10 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.
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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,
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."
11 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 no fit case where the order passed by this
Court on 13.03.2019 deserves to be reviewed. There is absolutely no merit in
the application. It deserves to be rejected. Accordingly it is rejected with
costs.
( Smt. Vibha Kankanwadi, J. )
Donge
