Shahzadi Begum vs Zalaludin
2022 Latest Caselaw 5164 MP

                                      1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                               MP No. 1669 of 2017
                  (SHAHZADI BEGUM AND OTHERS Vs ZALALUDIN AND OTHERS)

Dated : 08-04-2022
      Shri Amit Lahoti, learned counsel for the petitioners.

      Shri Varun Kaushik, GA for the respondent No.6/State.

Present petition has been filed assailing the order dated 16.11.2017 passed by learned IV ADJ Vidisha in Misc. Appeal No.6 of 2017 by which, the order dated 18.1.2017 passed by learned I Civil Judge Class 2, Vidisha in Civil Suit No.28A of 2016, has been confirmed.

The facts in brief, to decide the petition are that the plaintiff/respondent No.1 filed the present suit against respondents No.2 to 5/defendants No.1 to 4 as well as the present petitioners with respect to the suit property as described in the plaint. After the affidavit being filed by the plaintiff/respondent No.1 for examination in chief, defendant No.1 moved an application before he starts cross-examination stating that the petitioners may be directed to cross-examine the plaintiff first. The aforesaid application was dismissed vide order dated 13.8.2015. Challenging the aforesaid order, the defendant no.1 preferred a writ petition being W.P.no.5498 of 2015 which was dismissed vide order dated 23.8.2016 with liberty to the defendant

no.1 to file review of the order. Defendant no.1 filed a review application on 29.8.2016. The learned trial court decided the application vide order dated 18.1.2016 and allowed the review application and directed the present petitioners to cross-examine the plaintiff first. Challenging the aforesaid order, the petitioners filed an appeal which was also dismissed vide order dated 16.11.2017 against which, present petition is being filed.

Learned counsel for the petitioners argued that both the orders cannot be sustained in the eyes of law. No ground arises on perusal of the pleadings to the trial court to review it's own order dated 13.8.2015. Subsequently, the aforesaid order was confirmed by the higher court and only liberty for review was granted without giving any finding. Both the courts have committed error in relying upon the judgment passed by Gujrat High Court in the case of Shah Heeralal Himmatlal and Others Vs. M.G.Pathak and Others, reported in AIR 1964

Gujrat 26, where the facts were entirely different. He has further argued that in the earlier order dated 13.8.2015, it could not be established that there was an error apparent on the face of record and thus there was no question of review of it's own order.

Heard learned counsel for the petitioners and perused the record. Upon perusal of record, it is apparent that relying upon the judgment in the case of Shah Heeralal Himmatlal and Others (Supra), the learned trial court has reviewed it's own order. It is well settled that any subsequent decision on an identical or similar point by Coordinate or larger Bench or even change of law cannot be made the basis for recording a finding that the order sought to be reviewed suffers from an error on the face of record. Therefore, the orders passed by the courts below are found to be against the settled principles of law, especially in the light of the fact that the facts and circumstances of the case relied upon by learned courts below are different from this case. The aforesaid judgment pertains to the right of examination in case of admission of pleadings. The said judgment does not say that the cross-examination would be done first on behalf of the party who admits his pleadings. However, the courts below interpreted the aforesaid judgment in the wrong manner. It is also apparent that the petitioners/defendants have specifically pleaded regarding collusion between the plaintiff and defendants no. 1 to 4 and under such circumstances, also filed counter claim not only against the plaintiff but also against the co-defendants.

Consequently, the order impugned passed by first appellate court on 16.11.2017 in Misc. Appeal No.6 of 2017 and by the trial court on 18.1.2017 in Civil Suit No.28A of 2016 are found to be contrary to the settled principles of law and therefore the same are set-aside. The petition stands allowed and disposed of.

(SUNITA YADAV) JUDGE

Rks RAM KUMAR SHARMA 2022.04.08 18:21:16 +05'30'