Rajasthan High Court - Jodhpur
Manju Bala vs Shyam Singh Parihar ... on 20 September, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:39104]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Review Petition No. 35/2019
1. Manju Bala W/o Late Shri Yuvraj Singh, Aged About 56
Years, R/o 91, Dhabhaiji - Ki - Haveli, Ganeshghati,
Udaipur (Raj.)
2. Smt. Sapna Chauhan D/o Late Shri Yuvraj Singh, Aged
About 32 Years, And W/o Shri Man Singh Chouhan, C/o
Bhoot Bangla , Opp. Central School No. 1, Bheruvilas, Air
Force Area, Jodhpur (Raj.)
3. Smt. Nisha Kachwaha D/o Late Shri Yuvraj Singh, Aged
About 29 Years, And W/o Shri Naveen Kachwaha, R/o
Kachwaha General Store, Hiran Magri, Sector - 14,
Udaipur (Raj.)
4. Miss Chetna D/o Late Shri Yuvraj Singh, Aged About 26
Years, R/o 91, Dhabhaiji - Ki - Haveli, Ganeshghati,
Udaipur (Raj.)
5. Raj Singh S/o Late Shri Yuvraj Singh, Aged About 24
Years, R/o 91, Dhabhaiji - Ki - Haveli, Ganeshghati,
Udaipur (Raj.)
----Petitioners
Versus
Shyam Singh Parihar S/o Late Shri Kan Singh Parihar, Aged
About 70 Years, R/o 91, Dhabhaiji - Ki - Haveli, Ganeshghati,
Udaipur (Raj.) , At Present Building No. 13, Flat No. 10, Second
Floor, Navjeevan Cooperative Housing Society Limited,
Chembur, Mumbai - 400074 (Maharashtra). Presently At Jodhpur
----Respondent
For Petitioner(s) : Mr. Sanjeet Purohit
For Respondent(s) : Mr. S.P. Sharma
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
REPORTABLE
20/09/2024
The present review petition has been filed by the petitioners
against the judgment dated 08.08.2018 passed by co-ordinate
Bench of this Court in S.B. Civil First Appeal No. 388/2010
whereby, the first appeal filed by the respondent/plaintiff was
allowed.
[2024:RJ-JD:39104] (2 of 5) [CRW-35/2019]
The respondent/ plaintiff had filed an appeal before this
Court being S.B. Civil First Appeal No. 388/2010 which came to be
decided in favour of the respondent plaintiff vide judgment dated
08.08.2018. Upon allowing of the appeal, the petitioners filed an
application under Order 41 Rule 21 CPC praying for re-hearing of
the appeal. The said application was dismissed by this Court vide
order dated 30.10.2018. Thereafter, the petitioners preferred SLP
before the Hon'ble Apex Court feeling aggrieved by the order
dated 08.08.2018 and 30.10.2018. The SLP preferred by the
present petitioners also came to be dismissed vide order dated
13.12.2018. Now the petitioners have preferred the present
review petition for reviewing the order dated 08.08.2018.
The present appeal has been listed in 'Defect' category as
the same is barred by delay of 305 days. The review petitioners
had filed an application under Section 5 of Limitation Act.
Learned counsel for the petitioners argued that this Court
while passing the judgment dated 08.08.2018 has not considered
the fact that the Issues No. 4 to 6 and 8 & 9 have been decided
against the plaintiff and even if the suit was within the period of
limitation, then too the respondent/plaintiff was not able to prove
his case qua his claim for possession. It is argued that the co-
ordinate Bench of this Court had not reversed the findings on
Issues No. 4 to 6, 8 & 9 while passing the judgment dated
08.08.2018 and therefore, there is error apparent on the face of
record. It is further argued that this Court has considered the fact
that the plaintiff was able to prove the permissible possession of
the defendants whereas, it was not the case of permissible
possession but the possession was open and hostile. Another
[2024:RJ-JD:39104] (3 of 5) [CRW-35/2019]
argument of counsel for the petitioners is that respondent Shyam
Singh Parihar died in the year 2021 but the legal representatives
of deceased were not brought on record. On the contrary,
vakalatnama has been filed on behalf of Shyam Singh Parihar in
the year 2022.
Per contra, counsel for the respondent argued that the
present review petition is nothing but abuse of process of law.
Admittedly, after allowing of the appeal, the petitioners filed an
application under Order 41 Rule 21 CPC praying for reviewing the
order dated 08.08.2018. The said application was dismissed by
this Court vide order dated 30.10.2018. Thereafter, the petitioners
preferred SLP before the Hon'ble Apex Court feeling aggrieved by
the order dated 08.08.2018 and 30.10.2018. The said SLP
preferred by the present petitioners also came to be dismissed
vide order dated 13.12.2018. Now, after dismissal of SLP, the
petitioners have again preferred the present review petition for
reviewing the order dated 08.08.2018. Further, the present review
petition has been filed by the petitioners after gross delay of 305
days, without any explanation for the cause of delay. Learned
counsel for respondents has also adverted at some length on the
scope of the review petition. It is contended that no re-hearing of
the matter on merits of issues which was known to or available
with the petitioners at the time of the original hearing is
permissible in the present review petition. Thus, it is prayed that
the present review petition may be dismissed with exemplary cost
upon the petitioners.
I have heard learned counsel for the parties and carefully
gone through the material on record.
[2024:RJ-JD:39104] (4 of 5) [CRW-35/2019]
From the facts on record, it is evident that after allowing of
the appeal, the petitioners had earlier filed an application under
Order 41 Rule 21 CPC praying for rehearing/reviewing the order
dated 08.08.2018. The said application was dismissed by this
Court by way of order dated 30.10.2018. Thereafter, the
petitioners preferred SLP before the Hon'ble Apex Court feeling
aggrieved by the order dated 08.08.2018 and 30.10.2018. The
said SLP preferred by the present petitioners also came to be
dismissed vide order dated 13.12.2018.
It is well settled law that the power of review may be
exercised on the discovery of new and important matter or
evidence which, after the exercise of due diligence was not within
the knowledge of the person seeking the review or could not be
produced by him at the time when the order was made; it may be
exercised where some mistake or error apparent on the face of
the record is found; it may also be exercised on any analogous
ground. But, it may not be exercised on the ground that the
decision was erroneous on merits. That would be the province of a
court of appeal. A power of review is not to be confused with
appellate power which may enable an appellate court to correct all
manner of errors committed by the subordinate court. In the
present case, the petitioners had already availed the remedy of
seeking re-hearing/review of the judgment dated 08.08.2018
which was dismissed by co-ordinate Bench of this Court on
30.10.2018. The said decision was also challenged by the
petitioners by way of SLP, however, it also came to be dismissed
vide order dated 13.12.2018 and now the petitioners have filed
[2024:RJ-JD:39104] (5 of 5) [CRW-35/2019]
the present review petition again seeking review of order dated
08.08.2018.
It is a well settled principle that the dismissal of the special
leave petition would not constitute res judicata provided the
appeal was challenged by way of special leave petition. However
in the present case, a review/re-hearing petition was filed in the
High Court against its earlier order dismissing the appeal.
Subsequently, an SLP was filed before the Hon'ble Apex Court
against the previous dismissal of the review/re-hearing petition
and the appeal. Therefore, in the facts and circumstances of the
case, the review petitioners are indulging in vexatious litigation
and abusing the process of the court by re-approaching the High
Court.
Moreover, the present review petition is also liable to be
dismissed on being barred by limitation inasmuch as, the present
review petition has been filed by the petitioners after gross delay
of 305 days, without any plausible explanation for the cause of
delay except that they had filed an application for rehearing before
this Court and thereafter, they challenged the same before
Hon'ble Apex Court by way of filing SLP.
For the foregoing reasons, the review petition is dismissed
without costs, even though, heavy costs are warranted for the
abuse of process.
Stay petition also stands dismissed.
(MANOJ KUMAR GARG),J
78-BJSH/-
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