Bhunvnesh Tomar vs Smt. Beti Bai (Dead) Through Her ...
2022 Latest Caselaw 10290 MP

                                                              01



        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                             BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL

                     ON THE 29th OF JULY, 2022

                 REVIEW PETITION No. 303 of 2021

     Between:-
     BHUNVNESH TOMAR S/O LATE SHRI RAMENDRA SINGH
     TOMAR, AGED ABOUT 41 YEARS, OCCUPATION: BUSINESS
     SOCIAL WORKER TOMAR BUILDING THATIPUR (MADHYA
     PRADESH)
                                                 .....PETITIONER
     (SHRI ANIL KUMAR MISHRA, LEARNED COUNSEL FOR
     PETITIONER)

     AND

     SMT.  BETI  BAI   (DEAD)  THROUGH     HER   LEGAL
     REPRESENTATIVE VINOD SINGH TOMAR S/O LATE SHRI LAL
1.
     SINGH TOMAR, AGED ABOUT 72 YEARS, GALLA KOTHAR
     THATIPUR MURAR (MADHYA PRADESH)
     SURESH SINGH TOMAR S/O LATE SHRI LAL SINGH TOMAR
2.
     GALLA KOTHAR, THATIPUR MORAR (MADHYA PRADESH)
     MAHESH SINGH TOMAR S/O LATE SHRI LAL SINGH TOMAR
3.
     GALLA KOTHAR THATIPUR MURAR (MADHYA PRADESH)
     THE STATE OF MADHYA PRADESH THROUGH DISTRICT
4.
     COLLECTOR DIST. GWALIOR (MADHYA PRADESH)
     NAZUL OFFICER, TEHSIL AND DISTRICT GWALIOR
5.
     GWALIOR (MADHYA PRADESH)
     MUNICIPAL CORPORATION GWALIOR THROUGH ITS
6.
     COMMISSIONER GWALIOR (MADHYA PRADESH)
                                             .....RESPONDENTS
     (SHRI N.K. GUPTA, LEARNED SENIOR COUNSEL WITH SHRI
     RAVI SHANKAR GUPTA AND SHRI SAMEER KUMAR
                                                                      02

  SHRIVASTAVA, LEARNED COUNSEL FOR RESPONDENTS)
      This petition coming on for hearing this day, the court passed

the following:

                              ORDER

Heard on IA 2553/2021, an application for dismissing the

petition has been filed by respondents.

In brief facts of the case are that, LR's of Smt. Beti Bai filed a

civil suit No.7A/97 against State of M.P. and others for declaration of

title and permanent injunction which was decreed by judgment dated

07.11.2000 against which State has preferred an appeal which was

dismissed by judgment dated 08.10.2020 in F.A.No.155/2001.

Respondents who are legal representatives of original plaintiff Beti

Bai had filed a civil suit for declaration and permanent injunction

claiming that patta of the suit property situated at Survey No.36

Village Mehra, Tahsil and District Gwalior was granted in favour of

Late Machal Singh by the then Cantonment Officer (Ad. and Quarter

Master General , Gwalior Army Q.M.G. Branch) for rendering

exemplary services in the wars fought between 1939-1945 (II World

War), under the authority of Maharaja Scindia and the Army Minister,

on 26/10/1946 (Ex.P-1). In the Khasra Panchsala of the year 1951-

1952, the suit land was recorded in the name of Lal Singh and

Bhagwan Singh, both sons of Machal Singh, after the death of

Machal Singh and thereafter in the name of original plaintiff Smt.

Betbai. The suit continued to be recorded as "Aabadi" land since the

year 1950 and in column no.12 of the Khasra Panchsala, the name of

original plaintiff Betibai was continuously recorded as Bhumiswami

of the land. The name of Lal Singh, husband of Betibai, was recorded

in the revenue records of the Municipal Corporation, Gwalior on

19.03.1960 (Ex.P/3) in place of his father Machal Singh.

Respondent/Municipal Corporation in its written statements

denied the plaint allegations. The suit land was neither ancestral

property of the respondent nor any permission for construction was

given to them. It was pleaded that if there is any permission was

obtained by collusion with any officer of the cantonment the same is

void and inoperative. It is also alleged that in Col. No.5 of Khasra

Panchasla of the Samvat 1997 (Year 1940-1941), the land in dispute

i.e. comprising of Survey No.36, area 2 Bighas and 1 Biswa is

entered Milkiyat Sarkar Gwalior as a Government land. Respondents

herein are encroachers and they have no right over the land. The

Joint Director, Town and Country Planning had also not granted

permission to raise constitution. After framing of issues and recording

of evidence, learned trial Court decreed the suit in favour of

respondents. Being aggrieved by the said judgment and decree, State

preferred an appeal before this Court, which was also dismissed.

It is submitted by learned counsel for the petitioner that the

said First Appeal was listed and heard by the Coordinate Bench in the

month of July 2019 and the judgment has been delivered on

01.10.2020, the same is without jurisdiction as held by the Hon'ble

Supreme Court in various judgments. In support of his contention

reliance is placed by learned counsel for the appellant on the decision

rendered by Hon'ble Supreme Court in Anil Rai Vs. State of Bihar

(2001) 7 SCC 318 and Balaji Baliram Mupade and Another Vs.

The State of Maharashtra and Others (2020) AIR (SC) 575.

The said judgments are on the salutary effect of prompt

pronouncement of the judgments, being the rallying point in these

decisions, to check against the delayed delivery of judgments. The

Supreme Court issued guidelines in Anil Rai upon noticing the trend

of judgments being delivered long after conclusion of hearing and

attempted to shorten the time between the conclusion of hearing and

delivery of judgments.

Learned counsel for the appellant has taken the stand that this

review is at all maintainable by a person who was not a party to the

case, for this purpose reliance is placed on Union of India Vs.

Nareshkumar Badrikumar Jagad, reported in 2018 SCC Online

SC 2573, the law has been laid down by the Hon'ble Apex Court as

follows :-

"19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ("CPC") which, inter alia, postulates that "any person considering himself aggrieved" would have locus to file a review petition. Order 47 CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have Civil Review No.9 of 2016 the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order 47 CPC nor Order 47 the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect."

Reliance has also been placed on the decision of Uttrakhand

High Court in Union of India and Another Vs. Associations of

Class I (Group A) Officer and others, relevant portion of which is

reproduced below:-

17. Locus standi to approach the Court/Tribunal relates to the maintainability of the petition/application. (Bangalore Medical Trust v. B.S.

In a case of defect of jurisdiction, an aggrieved person will be entitled to relief including for a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a "stranger", the Court/Tribunal will deny him this remedy, save in very special circumstances. (Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed[5]). To have "standing to sue", which means locus standi to ask for relief in a Court/Tribunal, the petitioner/applicant must show that he is injured, that is, he has been subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded. "Legal wrong" requires a judicially enforceable right and the touchstone to judiciability is injury to a legally protected right. A nominal or a highly speculative adverse affect on the interest or the right of a person is insufficient to give him the "standing to sue" for judicial review of the administrative action. Again the "adverse affect" requisite for "standing to sue" must be an "illegal effect".

Per contra, it is submitted by learned counsel for the petitioner

that petitioner was neither party to the suit nor in first appeal. As per

their petition, they are stranger. Hence they have no right to apply for

review. In support of his contention he has relied upon C.P. Bharathi

And Anr. Vs. Anjanappa (Deceased by LRs) and ors. AIR 2007

Karnataka 31

"From reading of Order 47 Rule 1 of Code of Civil Procedure, it is clear to the Court that review petition can be filed by a person against whom a decree or order is passed and a person who has not filed an appeal can not file an application by invoking jurisdiction under 47 Rule 1 of Code of Civil Procedure. On a careful reading of Order 47 Rule (1) (2) of Code of Civil Procedure, this Court is of the opinion that if a person is not a party to the suit and has not suffered a decree either by the trial Court or by the appellate Court cannot not maintain the petition. In the circumstances, review petition filed by the petitioners, is not maintainable, as their case does not fall within the provisions of Order 47 Rule 1 of Code of Civil Procedure. "

Reliance has also been placed by learned counsel for the

petitioner on the decision of Delhi High Court in Bharat Singh

Vs. Firm Sheo Pershad Giani Ram and others AIR 1978 Delhi

122, relevant portion of which is reproduced below:-

"(30) In our opinion, it is not necessary to go into the facts of the case because the impugned order dismissing the review application can be upheld on a preliminary point, namely, that no review petition under Order 47, rule I Civil Procedure Code . could be filed by Bharat Singh.

"(31) Order 47, rule I Civil Procedure Code . reads as under :-

"1.(1) Any person considering himself aggrieved :- (A)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (B)by a decree or order from which no appeal is allowed, or (C)by a decision on a reference from a Court of Small Causes, 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, desires to obtain a review of the decree passed or order made against him, may

apply for a review of judgment to the Court which passed the decree or made the order." On a very reading of the rule it is clear that a review application can be filled only by a party to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. It was urged on behalf of the petitioner that the phrase "any person considering himself aggrieved" would include anyone who is adversely affected by the impugned order, whether that person is or is not party to the list in which the impugned order has been passed. We do not agree. As will be apparent from a reading of the rule any person considering himself aggrieved by a decree or order may apply for review provided he can establish that he "from the discovery of new and important matters of 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." This postulates that the person applying for review has to satisfy two conditions, namely, that he is aggrieved by the order and also that he for the reasons mentioned was not in a position to bring that fact to the notice of the Court earlier which resulted in a wrong order being passed. If these two conditions are necessary before a review application can be moved, it follows that the review application has to be made by a person who was a party to the list decided by the impugned order or decree. (32) No authority contrary to the view that we have expressed above was cited, nor was any authority cited in favor of the view that we have expressed. We are, however, fortified in taking the view that we have taken on the same principle that a decree or order adversely affecting a person who is not a party to the list in which that order or decree is passed is in law not binding on him. Such a person, therefore, can ignore the order or decree which adversely affects him and so, cannot apply for a review of that order or decree. He may take such other steps as may be available to him in law to protect his rights as and when the order or decree adversely affecting him is sought to be enforced so as to jeopardise his rights."

A bare perusal of the pleadings of the petition, it is obvious

that the petitioner having no locus to file the instant review petition

under Order 47 Rule 1 CPC and he cannot be termed to be an

aggrieved person since petitioner is not asserting his rights over the

property in question. The instant petition has been filed at the

instance of a third party who has nothing to do with the property in

question.

After hearing learned counsel for the rival parties and

perusing the record and looking to the fact the petitioner is a

stranger to the subject matter of lis, this Court is inclined to allow

IA 2553/21.

Consequently, present review petition stands dismissed as

not maintainable.

                                              (Deepak Kumar Agarwal)
YOGENDR                                               Judge
A OJHA       ojha
2022.08.0
1 18:19:32
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