Bijaya Kumar Badu vs Manoram Badu & Two Others
2021 Latest Caselaw 12322 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                            RVWPET NO.20 OF 2015

            Bijaya Kumar Badu                        ....            Petitioner
                                                    Mr.B. Tripathy, Advocate
                                 -versus-
            Manoram Badu & Two Others                ....           Opp. Parties

                       CORAM:
                       MR. JUSTICE D.DASH
                                        ORDER

01.12.2021 Order No.

05. 1. This matter is taken up through hybrid arrangement (virtual/physical) mode.

2. On consent of the learned Counsel for the Petitioner, this Application for review of the judgment dated 09.01.2015 passed by this Court in First Appeal No.322 of 1996 is taken up for hearing.

3. Mr. B. Tripathy, learned Counsel for the Petitioner submits that as the judgment sought to be reviewed suffers from the vice of error apparent on the face of record, the same needs review and the Appeal be heard afresh for its disposal on merit. According to the learned Counsel for the Petitioner, the errors apparent on the face of record are the followings:-

(a) that the documents in Exts."A" & "B" was not taken into consideration while deciding the Appeal which goes to the joint nucleus of the parties and acquiring of the land out of the income from the joint family property which resulted in passing the judgment dated 9.1.2015;

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b) that ground nos.8 and 9 taken by the appellant in his appeal memo was not duly considered either by the learned trial court or by this Hon'ble Court for which the judgment dated 9.1.2015 requires review by this Hon'ble Court so that the apparent error crept into the judgment can be eradicated/cured; and

c) that it was brought to the notice of the Hon'ble Court that no issue on the counter claim not been framed therefore, the adjudication made by the learned trial court on the counter claim is also erroneous and this Hon'ble Court has not discussed anything while passing the judgment dated 9.1.2015.

4. Keeping in view the above, the judgment dated 09.01.2015 sought to be reviewed being given a careful reading; it is seen that this Petitioner was the Appellant in that First Appeal and he was the Defendant No.2 in the suit which had been decreed declaring the right, title and interest of the Plaintiff over the suit Schedule-A house with the finding that the Schedule-B land as described in the written statement are the self-acquired property of the Plaintiff whereas the lands under Schedule-A of the written statement are the only joint family property of the parties. It is now said that there being no specific issue framed in respect of the specific claim advanced in the counter claim which has a definite impact over the decision, this Court has not touched that aspect in the First Appeal which according to the petition is an error apparent on the fact of record.

Coming to the other point, it is said that two grounds taken in the Memorandum of Appeal had not been considered and last one is that two documents, Ext-A & B which have definite say over the significant factual aspect touching the root of the case had not been taken into account in deciding the First Appeal.

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4. It is the settled position of law that if some ground(s) pointed out in the Memorandum of Appeal has/have not been discussed in the judgment; it has to be either said that on the facts and circumstances as obtained in evidence and the position of law holding the field, the Court has deemed those to be of no such significance for being discussed or that for the other available reasons as pointed out those are not so necessary to be discussed. This is also the position in respect of non-consideration of some documents. When the Court finds the evidence available on record to finally answer the controversy that has arisen out of rival case projected by the parties who too have piloted their evidence, the Court has the power to record the finding even in the absence of any specific issue. The grounds projected for review of the judgment and the submission in support of the same being thus carefully examined, this Court is of the view that no case is made out for saying that there are such mistakes or errors apparent on the face of the record as striking for review of the judgment dated 09.01.2015 passed by this Court in First Appeal No.232 of 1996.

5. The Review Application thus being not entertained, stands dismissed. No order as to cost.

Issue urgent certified copy as per rules.

(D. Dash), Judge.

Narayan