Smt. Paramjit Kaur & Ors vs Sh. Teja Singh & Ors
2016 Latest Caselaw 7563 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No. 144/2013
%                                                        23rd December, 2016

SMT. PARAMJIT KAUR & ORS                                       ..... Appellants

                           Through:       Mr. Ajay Kohli, Advocate.

                           versus

SH. TEJA SINGH & ORS                                          ..... Respondents

Through: Mr. Santosh Krishnan, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES

VALMIKI J. MEHTA, J (ORAL)

C.M. No.46870/2016 (for exemption)

1. Exemption allowed subject to just exceptions.

The application stands disposed of.

Review Petition No. 552/2016 in RSA No. 144/2013 along with C.M. Appl. No. 46868/2016 (for stay) and C.M. Appl. No. 46869/2016 (for condonation of delay of 78 days in filing the review petition).

2. This review petition seeks review of the judgment delivered by

this Court on 1.9.2016 allowing the second appeal.

3. Two aspects are urged on behalf of the review

petitioners/respondents/defendants before this Court:-

(i) The suit filed by the appellants/plaintiffs to challenge the

Relinquishment Deed dated 29.6.1973 executed by the husband of appellant

no. 1 (father of the other appellants) was barred by limitation, and though

the trial court by its judgment dated 16.7.2003 had decided the issue of

limitation in favour of the appellants/plaintiffs, however, the first appellate

court by its judgment dated 26.2.2013 decided the issue of limitation in

favour of the review petitioners/defendants and against the

appellants/plaintiffs holding the suit to be time barred, and therefore this

Regular Second Appeal was bound to be dismissed in view of Section 3 of

the Limitation Act, 1963 even though the issue of limitation was not urged

before this Court on behalf of the review petitioners/defendants.

(ii) When the second appeal was admitted on 2.12.2013 the substantial

question of law which was framed, and which has been reproduced in

paragraph 33 of the impugned judgment of this Court dated 1.9.2016, there

is no issue of limitation included and thus the suit of appellants/plaintiffs

had to be dismissed as time-barred.

4. A review petition is filed under Section 114 read with Order

XLVII of the Code of Civil Procedure, 1908 (CPC). Review petition lies if

there is an error apparent on the face of record or certain new documents

have come to the notice of the parties or if in the interest of justice on a very

fundamental issue for ensuring justice a review petition is filed. Once a

Court decides a case by a detailed judgment referring to and deciding all the

points urged, it is not permissible for one of the parties to file a review

petition to say that although a particular point was not urged the same be

now allowed to be urged by the review petitioner and the disposed of case

be re-decided on merits. Effectively, what is argued is that there is a right to

file a review petition for arguing a point, although the point in question was

not argued, i.e. on such non argued point the judgment is sought to be

reviewed for being set aside.

5. An error apparent on the face of record necessarily means that

an issue which has been considered and decided and which is ex facie

illegally decided. If a point is not urged there does not arise an issue of

there arising an error apparent on the face of record.

6. So far as the interest of justice requiring review is concerned, I

do not think that once a case is argued for several days and hours before the

Court resulting in a detailed judgment passed in open Court for around one

and a half hours dealing with all the aspects argued (as stated in paragraph 5

of the judgment dated 1.9.2016), then there at all can arise an issue of

interest of justice because pleadings of parties always contain several points

but it is the privilege of the parties whether or not to press a point found in

the pleadings. The issue of limitation once is not pressed on behalf of the

review petitioners/defendants in this Court, and the only points urged which

are referred to in paragraph 5 of the judgment dated 1.9.2016 have been

decided by the judgment, there cannot arise an issue of interest of justice

because if this argument is accepted it would mean that counsels and parties

will keep on filing review applications to urge that various points which

have not been argued, and therefore actually given up. After the judgment is

passed disposing of the case the Court becomes functus officio, and on the

basis of new arguments a judgment cannot be set aside in review.

7. I also asked counsel for the review petitioners/defendants to

show any judgment that even if a point is not argued, and the case is

otherwise decided by a detailed judgment on various argued aspects, yet a

non argued point can be pressed by filing of a review petition. No such

judgment is pointed out to this Court.

8. Therefore, neither there is any error apparent on the face of

record nor interest of justice requires setting aside of the impugned

judgment dated 1.9.2016 by allowing of the review application on the

ground of limitation.

9. So far as the argument urged on behalf of the review

petitioners/defendants that when the substantial question of law was framed

by this Court on 2.12.2013 when this Regular Second Appeal was admitted

there is no specific issue included of limitation, and therefore, the issue of

limitation has to be necessarily decided in favour of the review

petitioners/defendants for dismissing of this Regular Second Appeal and the

suit of the appellants/plaintiffs, but, in the opinion of this Court, this

argument is without merit for various reasons. Firstly, it is seen that the

substantial question of law which was framed, and which is reproduced in

the impugned judgment dated 1.9.2016 in paragraph 33, shows that the

question of law framed is a general question of law and which will thus

necessarily include all issues which were to be urged by the parties

including the issue of limitation. The general substantial question of law

framed on 2.12.2013 cannot be said to have excluded the issue of limitation

as is now sought to be argued on behalf of the review petitioners/defendants.

Secondly, the argument urged on behalf of the review petitioners/defendants

that the issue of limitation was not included in the substantial question of

law framed on 2.12.2013 has a fundamental fallacy because the impugned

judgment of the first appellate court which was challenged before this Court

by the Regular Second Appeal had decided the issue of limitation in favour

of the review petitioners/defendants, and if the issue of limitation was not

included in the substantial question of law framed on 2.12.2013 then the

second appeal itself would have been dismissed without being admitted,

inasmuch as, if the finding of the first appellate court by the judgment with

respect to limitation was upheld, the suit would have been barred by

limitation and hence the second appeal of the appellants/plaintiffs would not

have been dismissed and not admitted for hearing by framing a substantial

question of law on 2.12.2013. Therefore, I cannot agree with the arguments

urged on behalf of the review petitioners/defendants that the substantial

questions of law framed on 2.12.2013 did not include and cover the issue of

limitation, and that such issue of limitation could not have been argued by

both the parties before this Court when the second appeal was actually heard

and then decided on merits. Of course, enabling a person to argue a point

and whether the person actually exercises the option to argue the point, viz.

of limitation, are two separate aspects and once an issue is not urged and

pressed, I fail to understand that how at all this Court would have while

passing the detailed judgment on 1.9.2016 decided a point of limitation

which was never urged.

10. On behalf of the review petitioners/defendants, in the review

petition, reliance is placed upon the judgment of the Supreme Court in the

case of Prem Singh and Others Vs. Birbal and Others, (2006) 5 SCC 353,

but it is seen that this very judgment holds that issue of limitation qua

challenge to a document falls under two categories, a voidable document

and a void document. When a document is obtained by coercion, fraud or

undue influence, then the document is voidable and will have to be

challenged within a period of limitation as per Articles 57 to 59 of the

Limitation Act, but if the document is void document then in fact there is no

issue of limitation for filing of a suit to challenge a void document. In the

present case, the document being the Relinquishment Deed dated 29.6.1973

has been held effectively to be void by the judgment of this Court dated

1.9.2016, as having been executed by the husband of the appellant no.1

(father of the other appellants), without having the power to do so because

by virtue of the Will of the father-in-law of the appellant no.1 in favour of

the husband of the appellant no.1 (and pursuant to which the

Relinquishment Deed was executed) a specific bar was created against the

husband of the appellant no.1 to transfer the suit property till a period of 10

years. This aspect has been dealt with in detail by this Court in paragraphs

19 to 31 of the judgment delivered by this Court on 1.9.2016. The issue of

limitation, therefore, in any case will not in any manner help the review

petitioners/respondents/defendants for setting aside of the impugned

judgment allegedly on the ground that suit filed by the appellants/plaintiffs

was barred by limitation.

11. The review petition is accordingly dismissed with the

aforesaid observations.

DECEMBER 23, 2016                                 VALMIKI J. MEHTA, J
AK/ib