Orissa High Court
The State Of Orissa vs Ramesh Chandra Swain & Ors. : Opp. ... on 8 April, 2021
Equivalent citations: AIRONLINE 2021 ORI 105
Author: Biswanath Rath
Bench: Biswanath Rath
A.F.R
ORISSA HIGH COURT : C U T T A C K
RVWPET No.422 of 2019
In the matter of an application under Order-47, Rule-1 of
the Civil Procedure Code
The State of Orissa : Petitioner
represented through the Secretary to Govt.,
General Administration Department,
Bhubaneswar
-Versus-
Ramesh Chandra Swain & Ors. : Opp. Parties
For Petitioner : Mr. S. Palit, AGA
Mr. S. Ghose, ASC
For Opposite Party : None
Nos.1 to 6, 8 to 10, 13,
17 to 25
For Opposite Party No.7 : M/s. S.P. Mishra,
Senior Advocate,
S.N. Biswal, S. Sarangi
For Opposite Party Nos.11 & 12: M/s. M.R. Dash, B. Sahoo
For Opposite Party No.14 : M/s. D. Mahapatra, N.K. Mishra
For Opposite Party Nos.15 & 16:M/s. H.S. Mishra, B. Rout
(Other Respondents did not appear in spite of notice by way of
paper publication.)
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PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of hearing : 4.03.2021 & Date of Judgment : 8.04.2021
Biswanath Rath, J. The review petition under Order 47 Rule 1 of the
C.P.C. at the instance of the State-Respondent arises out of the
judgment dated 27.06.2012 passed in Miscellaneous Appeal No.994
of 2001 by the High Court thereby reversing the judgment in T.A.
No.4/17 of 2001/1992 dated 12.10.2001 by the learned District
Judge, Bhubaneswar interfering in a judgment and decree passed by
the trial Court in O.S. No.203 of 1988-I.
2. Short background involved in this case is that the
Respondent joining together filed O.S. No.203 of 1988-I in the Court
of Munsif, Bhubaneswar making the State of Orissa as Defendant.
The suit was filed for declaring the Plaintiffs as the owners over the
land under their possession and for correction of the Record of
Rights accordingly and thereby intimating the Collector, Puri to
correct the Record of Rights involving the suit scheduled property
therein; the property more particularly Khata No.38, Mouza-
Bomikhal, Plot Nos.13 to 18 also giving therein the corresponding
Khata No.109 under Mouza-Bomikhal bearing corresponding plot
nos.25, 26, 32 to 36, 42 to 47, 50 to 57. The Respondents herein as
Plaintiffs had their case that the Plaintiffs 1 & 2 having four ana
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share, the Plaintiffs 9 to 17 having five ana four paise share and the
Plaintiffs 18 to 21 having two anas eight paise share in the suit
property, were also recorded as such in the Record of Rights. Their
ancestors being the owners were in possession and as such were
recorded as Sabik Record of Rights. It is claimed that after demise of
the ancestors the Plaintiffs as the successors and owners remained
in possession over the same. It is further claimed that the suit plots
11 to 18 and 370 & 371 under Khata No.38 in Mouza Bomikhal were
recorded in the Record of Rights published in the year 1962 in the
name of their predecessors and the Plaintiffs continued in paying
rent. Plaintiffs also claimed that they have occupancy right and were
recognized as such with acceptance of the rents by the vendors. Even
the plaintiffs were paid with compensation in respect of the plot
nos.12 & 18 under khata no.38 involving the land acquisition
proceeding bearing L.A. Case No.26/73. The Plaintiffs claimed that
though an area of Ac.0.069 decimals out of plot no.18 were acquired,
balance Ac.0.25 decimals involving the plot no.18 were continued to
remain in possession of the Plaintiffs. It is, on the premises that their
occupancy was never terminated, nor their rights even acquired
validly, further the Government having accepted rent and acquiring a
portion out of the recorded plot in 1973 is estopped to say that the
plaintiffs are not the owners and in possession. While claiming that
the Plaintiffs raised crops from the disputed plot during 1968-70, the
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certificate proceeding was initiated against the Plaintiffs for arrear
rent in respect of the Khata no.38. Whereafter the Plaintiffs
continued to pay rent till 1982-83. It is alleged that during current
settlement the Defendant unreasonably claimed title over the
property and the Settlement Authorities illegally recorded the name
of the defendants over the settled property, in spite of Plaintiff's
resistance to the same. It is, in the above premises, Plaintiffs claimed
that the Defendants having no manner of right, title over the
disputed property attempted to disturb the Plaintiffs and as such the
Plaintiffs got compelled to file suit for correction of the Record of
Rights giving cause of action to be 24.04.1988. The suit was
registered as O.S. No.203/1989-1. Pursuant to the notice the
Respondent-Defendants contested the matter by filing written
statement. The State-Defendant while denying and disputing each of
the averments and claim contended that the scheduled property are
purely Government land after being acquisitioned by Government
during 1962 as per the Land Acquisition proceeding No.9/62-63.
Since the Record of Rights was prepared before initiation of the land
acquisition proceeding, the land somehow stood in the name of the
Plaintiff's predecessor Daitari Sahu and others. For the land
acquired through the land acquisition proceeding no.9/62-63 there
has been correct preparation of the Record of Rights, subsequently
giving a statement of the land acquired in tabular form. The State
5
Government justified being the owner of the land involving the
disputed property. It is clearly claimed by the State that the Plot
Nos.12 to 18 have been duly acquired. It was claimed that for not
being the owner of the disputed property, mere payment of rent
cannot create right, title or extinguish valid title involving the suit
land. The Defendants reiterated regarding plot nos.12 to 16
corresponding to plot nos.65, 66 & 67. The State claimed that the
whole area of plot nos.12 & 18 were acquired during 1962 as per the
L.A. Proceeding No.9/62-63, but however, after final publication in
1962, mistakenly there has been acquisition of some further plots in
the year 1973, which is claimed to be an illegal double benefits to the
Plaintiffs. The State reiterated that in fact the whole land was already
acquired following due process of law and the predecessors of the
Plaintiffs have already received the compensation. The State, thus,
contended that there is right rejection of the claim of the Plaintiffs for
correction of the record of rights involving the disputed property,
requiring no interference by any Court of law. The State completely
denied the claim of the Plaintiffs to have raised crop over the
disputed property. It is, in the above premises, the Defendant-
Respondent i.e. the present Review Petitioner sought for dismissal of
the suit. Upon entering into trial the Trial Court framed the following
issues:
"1. Is the suit maintainable?
2. Is there any cause of action for the suit?
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3. Whether the entire suit properties have been
acquired by the Government of Orissa in L.A. Case
No.9 of 1962 or only some portion have been
acquired in L.A. Case No.25 of 1973?
4. Whether the Plaintiffs are the rightful owners of the
suit property, having right, title, interest and
possession over it?
5. If the Plaintiffs are entitled to the reliefs prayed in
the suit?"
The Plaintiffs examined witnesses and also exhibited
documents marked as Ext.1 to Ext.5/a. Similarly the defendants
while examining witnesses, also exhibited documents marked as
Ext.A to Ext.B/1. Consequent upon completion of the trial based on
the pleadings and evidence of the parties the Trial Court vide its
judgment dated 28.10.1991 and decree dated 11.11.1991 decreed
the suit holding that the Plaintiffs are the owners of the suit property
and thereby directed the Settlement Authority to correct the record of
rights accordingly. It appears, in the suit the State-Defendant filed
document marked as Ext.A, A/1 & A/2, which relates to Land
Acquisition Case no.9/61-62. It further appears, these documents
have been admitted by the Trial Court without objection. Being
aggrieved, the G.A. Department of the State of Odisha filed appeal
before the learned Additional District Judge, Bhubaneswar vide T.A.
No.17 of 1992. The lower Appellate Court hearing the appeal on
contest by order dated 16.08.1993, however, dismissed the appeal
due to barred by limitation. It appears, being aggrieved by the said
dismissal order on the ground of limitation, the Defendant-Appellant
7
filed Civil Revision No.272/1993. This High Court by its order dated
12.07.1995 rejected the Civil Revision No.272/1993 on the premises
of failure of the Defendants in explaining the delay. Being aggrieved
by the order of dismissal in the Civil Revision, the Defendants carried
SLP(C) No.7912 of 1996 before the Hon'ble Apex Court. It appears,
the Hon'ble Apex Court by its judgment dated 5.09.1997 allowed the
SLP(C), but however subject to payment of a cost of Rs.20,000/- in
restoration of the T.A. There also arose some dispute with regard to
non-payment of the cost in the meantime and the misc. case for
condonation of delay was again allowed, subject to however payment
of additional cost of Rs.10,000/-. The matter again entered into
another SLP vide SLP (C) No.4970 of 2000 regarding non-payment of
cost issued by order dated 5.01.2001 and while restoring the T.A. the
Hon'ble apex Court directed the Additional District Judge to dispose
of the appeal within a period of six months. While the matter stood
thus, on 12.10.2001 the Additional District Judge, Bhubaneswar
allowed the T.A. No.17/92 (4 / 2001) recording his finding for retrial
of the suit and affording the defendants also an opportunity to
amend the written statement bringing the land acquisition
proceeding as well as other relevant notifications, pleadings relating
to initiation of land acquisition proceeding and also giving
opportunity to the Plaintiffs to controvert the same.
8
Being aggrieved with the judgment of the Additional District
Judge, Bhubaneswar in remanding the suit vide T.A. No.17 of 1992
the Plaintiffs preferred M.A. No.994 of 2001 contemplating that the
Additional District Judge, Bhubaneswar has mechanically exercised
power under Order 41 Rule 23-A of the C.P.C. The High Court by its
judgment dated 27.06.2012 allowed the Miscellaneous Appeal
No.994 of 2001 holding that there has been mechanical exercise of
power by the lower Appellate Court and thereby, illegally reopened
the suit and while observing so, the High Court also passed a
judgment declaring the judgment and decree in the suit vide O.S.
No.203 of 1989 (I) becomes valid, which resulted filing of the present
review by the Plaintiff-Appellants.
3. It is apt to indicate here that the Review No.422 of
2019 was filed undoubtedly with 2195 days of delay. The delay in
preferring review was condoned by this Court by order dated
23.12.2019 which order being challenged in the Hon'ble apex Court,
the Hon'ble apex Court dismissed the SLP (C) No.3086 of 2020.
4. Now coming to the plea at the instance of the State
in the Review Petition, this Court finds, the Review Petition is filed on
the plea that after the judgment of this Court in M.A. No.994 of 2001
the Plaintiff-Opposite Parties filed M.C. No.25769 of 2018 praying for
9
correction of the record on the basis of the judgment of the Court.
The G.A. & P.G Department being the custodian of the land within
the jurisdiction of the Bhubaneswar Municipal Corporation, a
detailed verification was conducted to ascertain the position of the
suit land pending for mutation. The State claims that khata no.297
relating to mouza-Bomikhal stands recorded in the name of the G.A.
& P.G. Department and being prepared and finally published by the
Statutory Authority under the provisions of the Orissa Survey and
Settlement Act, 1958. On further inquiry, it was also found that the
private land measuring Ac. 46.44 decimals in village Bomikhal was
acquired by the Government vide Revenue Department Notification
No.18004-LA/271/60 Puri-R-dated 20.04.1960 for development of
the road from new capital to University side. This particular land was
acquired at public expenditure for public purpose. It is only after
requirement of thorough verification to ascertain the Hal Sabik and
pre-sabik position in the land acquisition notification, the Revenue
Inspector involved clearly indicated that the area applied for
mutation correspondences to the land acquired during 1960.
Consequently, the Tahasildar, Bhubaneswar was provided with all
details to consider the Mutation Case No.25769 of 2018 in
accordance with law. The Plaintiff-Respondents by filing W.P.(C)
No.13606 of 2019 attempted to quash the communication to the
Tahasildar dated 26.07.2019. The aforesaid writ petition is still
10
pending. On verification of the record involving land acquisition
record pertaining to L.A. No.9/61-62, it also came to notice that
though the original award along with enclosures are not available in
the case record, but however, a copy of the award being available on
record, it was found, an amount of Rs.2,91,955.10/- has been
awarded against this very same land measuring Ac.46.644 decimals
of land. Record also establishes handing over of the possession of
this very land to the Revenue Officer on 27.07.1962. For this
purpose there is also an abatement statement prepared vide letter
no.1393 dated 25.07.1974 being filed as Annexure-F to the Review
Application. There are also some materials available indicating that
possession in respect of acquired land has been handed over to the
requisitioning authority on 27.07.1962. Award statement prepared
U/s.11 of the Land Acquisition Act is also filed as available at
Annexure-1 to the review petition. In the meantime, involving
another development the Plaintiffs attempted to go through a
contempt application against the high Officials of the Government for
working-out the judgment dated 27.06.2012 passed in Miscellaneous
Appeal No.994 of 2001 and with a clear intent to save the public
property and very valuable property an attempt was made by the
State to reopen the Miscellaneous Appeal and/or the Suit at least to
be decided in taking into consideration the relevant facts and
materials, which have all come to the notice of the State Authorities
11
and have a definite help for effective adjudication of the dispute
involved herein. In spite of the fact that there involves a Civil Court
decree and for which execution proceeding though is a clear remedy,
it is not known under what provision a contempt petition involving a
civil court decree can be entertained to execute a judgment and
decree of a Civil Court. This clearly established that the Plaintiffs
have attempted their level best to give threat of contempt and that
too in the matter of correction of Record of Rights, to which right
accrued through a Civil Court judgment and decree. Thus the
present Review Petition is filed for clear involvement of fraud,
suppression of material facts and developments involving very same
land and that too when the property already became a property of
the State.
5. In his submission Mr. S. Palit learned AGA with
Mr. S. Ghose, learned ASC while reiterating the above factual
position and legal background, taking this Court to the findings of
the learned Additional District Judge, Bhubaneswar through
paragraph nos.9, 10 & 11 of the first appellate court judgment
submitted that the lower appellate Court taking into account some of
the developments involved herein has already directed for retrial of
the dispute by remanding the matter. It is, in the premises that there
has been right exercise of power under Order 41 rule 23 of the C.P.C
12
by the first appellate court, Mr. Palit, learned AGA contended that for
the better interest of the parties and for a valuable land required for
public purpose, even possession of which is already taken by way of
land acquisition on payment of appropriate compensation, the order
passed by this Court in Miscellaneous Appeal No.994 of 2001is
required to be reviewed and a fresh judgment may be passed taking
into consideration the materials referred to by the learned Additional
District Judge, Bhubaneswar as well as the materials taken support
in the review application.
6. Mr. Palit, learned AGA also relying on a decision of
the Hon'ble apex Court in the case of J.Balaji Singh Vs. Dibakar
Kole and Ors. as reported in 2017 (14) SCC 2007 submitted that
the Petitioner has the support of the above decision and thus placing
the said judgment made a request for setting aside the judgment
passed in M.A. No.994 of 2001 and passing a fresh judgment after
hearing all the parties in the M.A. No.994 of 2001.
7. There has been a lot of hide & seek played by the
Opposite Parties in review petition in conducting the case as clearly
borne from the order-sheet involving the review petition. Suit was
fought jointly, similarly the Appeal was also fought with one set of
counsel. In the miscellaneous appeal also all the defendants joining
13
together fought the appeal through one set of counsel, but
surprisingly in the review application there has been different set of
counsel including dropping of so many counsel in between.
Be that as it may in the final hearing also on
several dates the Opposite Parties did not appear to contest the
matter, for which the Court was constrained to bring the matter on
the heading of "To be mentioned" with an intention to provide last
opportunity to the contesting Opposite Parties, to avoid that the
matter is not decided ex parte. Finally the Plaintiffs in two sets
participated in the hearing through Mr. S.P. Mishra, learned Senior
Advocate being assisted by Mr. S.S. Biswal, learned counsel for the
Opposite Party No.7 and also one Mr. S.S. Mishra, learned counsel
for the Opposite Party Nos.11 & 12. The other counsel in spite of
several opportunities did not choose to contest the matter.
8. Mr. S.P. Mishra, learned Senior Advocate for the
Opposite Party No.7 in his attempt to object the entertainability of
the review petition, taking this Court to the provision at Order 47 of
the C.P.C. submitted that unless the present review application falls
into the conditions in the Order 47 Rule 1 of C.P.C. the same
remains unentertainable. Mr. S.P. Mishra, learned Sr. Advocate also
referring to the provision at Section 107 of the C.P.C contended that
the Court hearing the appeal and deciding the same by a judgment
14
passed in exercise of power under Order 41 Rule 23 of the C.P.C. has
power to pass a judgment and decree and is not confined only to
confirm the remand order or to set aside the remand order. Taking
this Court to the different portions of the judgment of the learned
Single Judge in M.A. No.994 of 2001 Mr. S.P. Mishra, learned Senior
Advocate even though submitted that normally a matter under this
contingency would have been decided either confirming the judgment
of the lower appellate court or remanding the matter to the lower
appellate court for fresh disposal in disagreement with the judgment
of the lower appellate court with a direction to the lower appellate
court to pass a fresh judgment in the first appeal. But for the power
conferred U/s.107 of the C.P.C. Mr. S.P. Mishra, learned Sr.
Advocate contended that the learned Single Judge here is also
equally powered to pass a judgment and decree to give complete
justice to the parties. Taking this Court to the decisions in the case
of Ashwini Kumar K. Patel v. Upendra J. Patel and others : AIR
1999 SC 1125 more particularly paragraph nos.7 & 8 therein, in the
case of District Executive officer vs. V.K. Pradeep and others :
1999 SCC Online Kerala 36, in the case of State of Punjab and
others vs. Bakshish Singh : 1998 (8) SCC 222, in the case of
Devaraju Pillai Vrs. Sellagge Pillai : AIR 1987 SC 1160, in the
case of Ram Singh Chauhan Vrs. Director of Secondary
Education involving Review Application M.U. No.1155 of 2019
15
decided by the High Court of Uttarakhand on 10.06.2020 and lastly
in the case of Asharfi Devi (Dead) Vrs. The State of Uttar Pradesh
: (2019) 5 SCC 86 Mr. S.P. Mishra, learned Senior Advocate
attempted to justify his submissions and claimed that for the
support of the above decisions to the case of the Plaintiffs, the review
application should be dismissed in confirmation of the decision of
the learned Single Judge judgment in M.A. No.994 of 2001.
9. Mr. S.S. Mishra, learned counsel for the Opposite Party
Nos.11 & 12, however, taking this Court to the miscellaneous
application filed by him submitted that for the allegation of fraud
against the Plaintiffs at the instance of the State Government, scope
of exercising power through Section 340 of Cr.P.C. should be kept
open for the affected Plaintiffs. Mr. S.S. Mishra, learned counsel,
however, prayed for keeping such a request reserve for future
purpose and in the process simply adopted all the submissions made
by Mr. S.P. Mishra, learned Senior Advocate in challenge to the
entertainability of the review application and prayed for dismissal of
the review application.
10. Considering the rival contentions of the parties, this
Court finds, in the beginning on the institution of the suit vide C.S.
No.203/1989-1 the Plaintiffs joining together in paragraph nos.2 & 3
16
claimed that the suit plot nos.11 to 18 and 370 & 371 under Khata
No.38, Mouza-Bomikhal were recorded in the name of their
predecessors in the record of rights published in the year 1962. At
the same time in paragraph no.3 the Plaintiffs again claimed that
they were occupancy royats and being recognized by their vendor.
The Plaintiffs admitted that they were also paid compensation, but
unfortunately, the Plaintiffs have made a statement in paragraph
no.3 that they were paid compensation with respect of plot nos.18 &
12 under khata no.38 involving L.A. Case no.26 of 73. In spite of
they being party to the L.A. Case No.9/62-63, did not find any
mention of the same in the suit proceeding. Even though it was
stated that the Plaintiffs subsequently clarified the position involving
plot no.18 to the effect that even though the land measuring
Ac.0.069 dec. out of plot no.18 were acquired but the balance
Ac.0.251 dec. in the said plot continued to remain in their
possession. In the scheduled portion in the suit disclosed as follows:
" SCHEDULE
Mouza-Bomikhal, Khata No.38 Plot no.13 Area Ac.2.475 decs.
Plot no.14 Area Ac.0.870 decs.
Plot no.15, Area Ac.1.480 decs.
Plot no.16, Area Ac.0.775 decs.
Plot no.17, Area Ac.0.280 decs.
Plot no.18, Area Ac.0.251 decs.
Out of Ac.0.320 decs.
Entire corresponding to Mouza - Bhoingar -
Khata No.109 Plot no.44 area Ac.0.078 dcs.
Plot no.42 area Ac.0.738 decs.
Plot no.43 area Ac.0.401 decs.
Plot no.36 area Ac.0.322 decs.
Plot No.32 area Ac.0.487 decs.
17
Plot no.33 area Ac.0.177 decs.
Plot no.34 area Ac.0.120 decs.
Plot no.35 area Ac.0.215 decs.
Plot no.45 area Ac.0.877 decs.
Plot no.48 area Ac.0.325 decs.
Plot no.47 area Ac.0.296 decs.
Plot no.50 area Ac.0.631 decs.
Plot no.51 area Ac.0.043 decs.
Plot no.52 area Ac.0.153 decs.
Plot no.53 area Ac.0.092 decs.
Plot no.54 area Ac.0.270 decs.
Plot no.55 area Ac.0.213 decs.
Plot no.56 area Ac.0.306 decs.
Plot no.57 area Ac.0.019 decs.
Plot no.25 area Ac.0.032 decs.
Plot no.26 area Ac.0.226 decs."
11. In filing written statement the State of Odisha while
denying each and every claim of the Plaintiffs in paragraph no.4
contended that the suit land as per the scheduled of property
appended to the plaint are purely Government land after it is
acquisitioned by the Government in 1962 as per the land acquisition
proceeding no.9/62-63. Not only this in page 2 of the written
statement the State of Odisha also gave a detailed declaration of the
land acquired by the Government. The statement relied on by the
State is taken note here as follows:
Sl. Land acquired by Part/ full Part/ full
No. Govt. relating to corresponding plots corresponding plots as
pre-1962 plots as per 1962 R.O.R per R.O.R 1987-88.
Sabik Suit plots Now suit plots
1 2 3 4
1. 62 14 45
2. 63 13, 14, 15 36, 42, 43, 46, 47,
50, 51, 52, 53, 54,
55, 56, 57 & 45
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3. 64 12, 13, 15 36, 46, 47, 50, 52,
55, 56, 57, 53
4. 65 15, 16, 17, 18 26, 25, 33, 34, 35,
32
5. 66 12, 15, 16, 17, 35, 36
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It is, at this stage of the matter, this Court taking into
account the serious contest between the parties, more particularly
the contentions of Mr. S.P. Mishra, learned Senior Advocate
regarding entertainability of the review petition, clearly hit by the
provision of the Order 47 Rule 1 of C.P.C., this Court here takes note
of the provision at order 47 Rule 1 of C.P.C:
"(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but
from 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."
12. On reading of the aforesaid legal provision in
entertaining a review, this Court finds, under Sub-rule (c) of Rule 1
of Order 47, the review is entertainable under several grounds. First
and foremost ground is, if there is discovery of new or important
matter or evidence, which after exercise of due diligence, which is not
within his knowledge or could not be produced by him at the time
19
when the decree was passed and also or for any other sufficient
reason may apply for review of judgment, this Court here finds,
judgment of the Single Judge is attacked by the State-the Review
Petitioner on two fold; one is that when the Single Judge was hearing
appeal involving the remand order being passed in exercise of power
under Order 41 Rule 23 of C.P.C., ought not have allowed the appeal
by passing a fresh judgment and decree and it is contended that in
the event the Single Judge was in disagreement with the judgment of
the first appellate court for the first appellate court having not
applied its mind on the merit involving the appeal, ought to have
remanded the matter to the first appellate court for considering the
appeal afresh and the other option left with the Single Judge was, in
the event he was agreeing with the findings of the first appellate
court, he could have simply dismissed the miscellaneous appeal
under the provision at Order 43 rule 1(u) of the C.P.C.
13. This Court here taking into account the decision of the
Hon'ble apex Court in the case of J. Balaji Singh v. Diwakar Cole :
(2017) 14 SCC 207 finds, in deciding the scope of the Court in
exercising its power under Order 43 Rule 1 (u) vide paragraphs 17 &
18 the Hon'ble apex Court has come to observe as follows:
17. So far as the impugned order is concerned, the High
Court, in our view, committed jurisdictional error when it
also again examined the case on merits and set aside the
judgment of the first appellate court and restored the
20
judgment of the trial court. The High Court, in our
opinion, should not have done this for the simple reason
that it was only examining the legality of the remand order
in an appeal filed under Order 43 Rule 1(u) of the Code.
Indeed, once the High Court came to a conclusion that the
remand order was bad in law, then it could only remand
the case to the first appellate court with a direction to
decide the first appeal on merits.
18. The High Court failed to see that when the first
Appellate Court itself did not decide the appeal on merits
and considered it proper to remand the case to the Trial
Court, a fortiori, the High Court had no jurisdiction to
decide the appeal on merits. Moreover, Order 43 Rule 1(u)
confers limited power on the High Court to examine only
the legality and correctness of the remand order of the first
Appellate Court but not beyond that. In other words, the
High Court should have seen that Order 43 Rule 1(u) gives
a limited power to examine the issue relating to legality of
remand order, as is clear from Order 43 Rule 1(u) which
reads thus:-
"1(u) an order under rule 23 or rule 23A of Order XLI
remanding a case, where an appeal would lie from the
decree of the Appellate Court"
On reading through the direction of the Hon'ble apex
Court in paragraph nos.17 & 18 this Court finds, for the limited
scope with the High Court while exercising power under Order 43
Rule 1(u), once the superior Appellate Court concludes, remand
order passed by the lower Appellate Court was bad in law, then it
can remand the matter to lower Court with a direction to decide the
appeal before it on merits. Thus, there is no doubt that the Single
Bench in deciding the M.A. an appeal under Order 43 Rule 1(u) has
exceeded its jurisdiction and thus the judgment involved herein
becomes bad in law. Taking into account the judgment of the Hon'ble
apex Court more particularly in para-19 therein, this Court for the
above position of law finds, power exercised by the learned Single
21
Judge was available only in exercise of power U/s.96 or Section 100
of C.P.C.
14. Further for the clear plea of the State right through the
suit that the State had acquired the entire land through land
acquisition proceeding No.9/61-62, further materials surfacing like
payment of compensation involving such land acquisition
proceeding, handing over of the land by the beneficiaries,
preparation of abatement statement vide letter dated 25.07.1974 and
the other records relied on by the State during 1st Appellate stage,
during miscellaneous appellate stage and corroborated through the
review petition and no denial on existence of such documents or even
on existence of land acquisition proceeding No.9/61-61 by any of the
Respondents as of now, particularly keeping in view the vast patch of
land in the heart of capital city of Bhubaneswar are already acquired
for public purpose that too on payment of compensation and
involving such compensation, admittedly no dispute is pending as of
now, all these cannot be lost sight of. There is plaint averment in
paragraphs 3, 4 & 7 to the effect that there has been partial
acquisition of the land for plot no.18 by the State in the L.A. Case
no.26/1973. To this there is a written statement with clear pleading
in paragraph no.4 that the claim of the Plaintiffs is wholly false, suit
land as per the plaint scheduled are purely Government land after it
22
is acquisitioned by the Government during 1962 as per the land
acquisition proceeding no.9/62-63. Which plea also stands fortified
in the statement of land acquired, thus again the statement made in
paragraph no.5 there is a clear statement that the whole land is
acquired in L.A. proceeding no.9/62-63, but however, finding
defective indication in respect of the land acquired for plot no.12
land involving the plot no.12 was again acquired in 1973 thus it
clearly appears the plaintiffs played fraud on the Court by not
bringing anything on L.A. proceeding No.9/62-63 and on
suppression of vital aspect attempted to grab a decree confining its
claim only on the basis of land acquisition case no.26/1973 even
though it was only in respect of the part of plot no.12.
15. This Court here finds, on the pleading and demand of
parties there is framing of issue no.3 which reads as follows:-
"Whether the entire suit properties have been
acquired by the Government of Orissa in L.A.
Case No.9/62-63 or only some portions have been
acquired as in L.A. Case No.26/1973."
From the scan of statement of D.W.1, it appears, the State
witnesses the D.W.1 the R.I. of the G.A. Deptt. not only clearly stated
that the entire suit land have been acquired in 1961-62 under L.A.
No.9/1961-62, which is in clear corroboration of pleadings of the
State in the W.S. as indicated hereinabove. This Court here finds,
23
even though the State could not file relevant documents to support
their above stand, but however, produced Exts.A, A-1, A-2, B, B-1,
though after closure of evidence, but case record shows all these
documents went on record without objection of Plaintiffs. Since these
documents go to the root of the case, in the interest of justice the
Trial Court ought to have directed the parties to enter into further
pleadings and evidence to establish the contents therein with scope
of rebuttal evidence to the Plaintiffs. Unfortunately in spite of
admission of Exts.A, A-1, A-2, B & B-1 having greater relevance and
in spite of clear pleading of the State, the trial Court did not give any
attachment to all these, it is, therefore, the lower Appellate Court, on
the other hand, on appreciation of all the above has opened the suit
for retrial. Since the Plaintiffs have the scope of rebuttal, there is also
no prejudice to the Plaintiffs and in the circumstances, only
conclusion in disposal of the M.A. No.994 of 2001 is to approve the
judgment of the 1st Appellate Court and see a fresh disposal of the
suit by way of open remand. Here this Court observes, the
documents surfaced in the process of the litigation materially
affecting the result of the suit would be an error apparent on the face
of record and there is no doubt that the case at hand is clearly
maintainable under the provision of Order 47 of C.P.C and the State
/ Petitioner is able to make out a case for review. This Court here
takes into account the decision of the Hon'ble apex Court in the case
24
of Gulam Abbas & Ors. v. Mulla Abdul Kadar reported in (1970) 3
SCC 643 which clearly endorses the view hereinabove rendered by
this Court.
16. Suit is filed in clear suppression of fact that the owner of
the land even after receipt of whole compensation of
Rs.2,91,955.10/- for whole acquisition of land measuring Ac.46.644
decimals, handed over of entire land to the Revenue Officer on
27.07.1962. The Plaintiffs thus played fraud on Court even. Original
land acquisition award involving very same land, payment of full
compensation and preparation of abatement statement all these
cannot be lost sight of. Above clearly brings the present review
application within the fold of Order 47 Rule 1 of C.P.C and the review
is thus clearly entertainable and succeeded.
This Court here finds, the submissions of Mr. Palit,
learned AGA for the State also gets support through the decisions in
the cases of State of Orissa v. Harapriya Bisoi :AIR 2009 SC 2991,
S.P. Chengalvaraya Naidu (Dead) by LRS v. Jagannath (Dead) by
LRS and others : (1993) Supp. 3 SCR 422, Hamza Haji v. State of
Kerala and another : (2006) 7 SCC 416, Ram Preeti Yadav v. U.P.
Board of High School and Intermediate Education and others :
(2003) Supp. 3 SCR 352, Bhaurao Dagdu Paralkar v. State of
Maharashtra and others : (2005) 7 SCC 605.
25
17. This Court, at this stage, also examines the decisions
cited by Mr. S.P. Mishra, learned Senior Advocate and also taken
support by Mr. S.S. Mishra, learned counsel appearing for a set of
Plaintiffs/Opposite Parties herein and finds as follows:-
AIR 1928 P.C. 261 (Tom Boevey Barrett Vs. African Products,
Ltd.) for different facts is not applicable to the case at hand. Similar
situation is also involved in AIR 2005 SC 809 (Sangramsinh P.
Gaekwad and others Vs. Shantadevi P. Gaekwad and others). AIR
1971 (S.C.) 2177 (Mohan Lal Vs. Anandibai) cited by Mr. Mishra,
learned Sr. Adv. rather supports the case of the State-Petitioner. AIR
1976 (SC) 163 (Afsar Sheikh and another Vs. Soleman Bibi and
others) involves a second appeal U/s.100 of C.P.C. AIR 1977 (SC) 615
(Varanaseya Sanskrit Vishwavidyalaya and another Vs. Rajkishore
Tripathi (Dr.) and another) involves an application under Order 39
rules 1 & 2. ILR (1989) Kar. 425 (K.S. Mariyappa Vs. Siddalinga
Setty) involves a proceeding U/s.96 of C.P.C. Similar situation is in
AIR 1986 Orissa 97 (Padma Bewa Vs. Krupasindhu Biswal and
others). In (1980) Vol.45 STC 212 (Northern India Caterers (India) Ltd.
Vs. Lt. Governor of Delhi) here the Hon'ble apex Court said, the review
is entertainable where a glaring omission or patent mistake or like
grave error has crept on earlier by the judicial fallibility, thus this
decision rather supports the State. Similarly (1999) 4 SCC 396
(Budhia Swain and Others Vs. Gopinath Deb and others), (2019) 11
26
SCC 800 (Ponnayal Vs. Karuppannan and another), (1987) 2 SCC 555
(Ram Sarup Gupta Vs. Bishun Narain Inter College and Others), AIR
1975 SC 1500 (Sow Chandra Kante and another Vs. Sk. Habib) are
not applicable for difference in facts. Similarly AIR (1998) SC 2276
(P.K. Ramachandran Vs. State of Kerala and another), (2012) 5 SCC
157 (Maniben Devraj Shah Vs. Municipal Corpn. Of Brihan Mumbai),
(2013) 4 SCC 52 (Amalendu Kumar Bera and others Vs. State of
W.B.), (2012) 3 SCC 563 (Postmaster General and others Vs. Living
Media India Ltd. and another), (2012) 5 SCC 566 (State of U.P. and
others Vs. Ambrish Tandon and another) are all on limitation aspect,
which stage in the case at hand is already over. Since condonation of
delay aspect in entertaining the review by this Court is already
affirmed by the Hon'ble apex Court on dismissal of the SLP (C)
No.3086 of 2020, all the above decisions except two decisions which
as per the observation of this Court supports the State rather, do not
support the case at hand. Involving (2019) 5 SCC 86 (Asharfi Devi Vs.
State of U.P. and others) this is a case where order of the review was
only in challenge in the Hon'ble apex Court and the Hon'ble apex
Court observed, the request to involve the challenge to the main
judgment not permissible at this stage, has no application to the
case at hand. (2018) 4 SCC 587 (Sivakami and others Vs. State of
T.N. and others) also for different facts involved therein has no
application to the case at hand. This Court has also gone through
27
the decisions vide 1999 SCC Online Kerala 36 (District Executive
Officer Vs. V.K. Pradeep & Ors.) and 1998 (8) SCC 222 (State of
Punjab and others vs. Bakshish Singh) cited by Mr. S.P. Mishra,
learned Senior Advocate and finds, none of these decisions have any
application to the case at hand.
18. This Court now proceeds to discuss some other
decisions which also support the case of the Review Petitioner, which
runs as follows:-
In the case of Vijay Syal Vrs. The State of Punjab : (2003) 9
SCC 401 the Hon'ble apex Court in para-24 has observed and held
as follows:
"24. In order to sustain and maintain the sanctity and
solemnity of the proceedings in law courts it is necessary that
parties should not make false or knowingly, inaccurate statements
or misrepresentation and/or should not conceal material facts with
a design to gain some advantage or benefit at the hands of the
court, when a court is considered as a place where truth and
justice are the solemn pursuits. If any party attempts to pollute
such a place by adopting recourse to make misrepresentation and
is concealing material facts it does so at its risk and cost. Such
party must be ready to take the consequences that follow on
account of its own making. At times lenient or liberal or generous
treatment by courts in dealing with such matters is either mistaken
or lightly taken instead of learning a proper lesson. Hence there is a
compelling need to take a serious view in such matters to ensure
expected purity and grace in the administration of justice."
In the case of Rajender Singh Vrs. Lt. Governor Andaman
and Nicobar Island and others : (2005) 13 SCC 289, the Hon'ble
apex Court giving stress on consideration of allegation of overlooking
the documents relied on by the appellant held it is a clear case of an
28
error apparent on the face of the record and non-consideration of
relevant documents and as such in para-15 & 16 therein held as
follows:
"15. We are unable to countenance the argument
advanced by learned Additional Solicitor General
appearing for the respondents. A careful perusal of the
impugned judgment does not deal with and decide many
important issues as could be seen from the grounds of
review and as raised in the grounds of special leave
petition/appeal. The High Court, in our opinion, is not
justified in ignoring the materials on record which on
proper consideration may justify the claim of the
appellant. Learned counsel for the appellant has also
explained to this Court as to why the appellant could not
place before the Division Bench some of these documents
which were not in possession of the appellant at the time
of hearing of the case. The High Court, in our opinion, is
not correct in overlooking the documents relied on by the
appellant and the respondents. In our opinion, review
jurisdiction is available in the present case since the
impugned judgment is a clear case of an error apparent
on the face of the record and non-consideration of
relevant documents. The appellant, in our opinion, has
got a strong case in his favour and if the claim of the
appellant in this appeal is not countenanced, the
appellant will suffer immeasurable loss and injury. Law is
well settled that the power of judicial review of its own
order by the High Court inheres in every court of plenary
jurisdiction to prevent miscarriage of justice.
16. The power, in our opinion, extends to correct all
errors to prevent miscarriage of justice. The courts
should not hesitate to review their own earlier order when
there exists an error on the face of the record and the
interest of justice so demands in appropriate cases. The
grievance of the appellant is that though several vital
issues were raised and documents placed, the High Court
has not considered the same in its review jurisdiction. In
our opinion, the High Court's order in the review petition
is not correct which really necessitates our interference."
In the case of Kuldip Gandotra Vrs. Union of India and
others : (2007) 136 DLT 44 (D.B.) the Hon'ble apex Court in
29
deciding a petition under Order 47 rule 1 of C.P.C. in para-2 & 8 has
observed as follows:
"2. Since fraud strikes at the very root of an
Order/judgment and effects solemnity, and the Rule of
Law, Courts have exercised their inherent power
whenever it is brought to their notice that fraud has
been practiced. The above principles have been
recently reiterated by the Supreme Court in the case
of Hamza Haji v. State of Kerala and another reported
in (2006) 7 SCC 416, wherein the entire case law on
the subject has been extensively examined and
considered. In the said case, it has been held that a
second review application in law is not maintainable
but a Court can exercise it's power as a court of record
to nullify a decision procured by playing a fraud. A
decision procured by fraud must be set at naught and
no person who is guilty of having come to Court with
unclean hands and practising fraud should be allowed
to take advantage and benefit of an order/judgment
obtained and tainted by fraud. Power to recall is
somewhat different and distinct from power of review.
Power of recall is an inherent power, whereas power of
review must be specifically conferred on the
authorities/Court (Refer Budhiya Swain v. Gopinath
Deb reported in (1994) 4 SCC 396 for the distinction
between the two and when power to recall can be
exercised).
8. We are conscious of the fact that there is difference
between a mere mistake and even negligence which by
itself is not fraud but merely evidence of fraud.
However, the present case is one in which the
petitioner/non-applicant made a false representation
deliberately and intentionally concealing facts to
mislead the Court. In the present facts, the motive to
mislead and the intention to do so is writ large. Fraud
is proved when it is shown that false representation
was intentionally and recklessly made without caring
to know whether it is true or false. In the present
matter, vital and relevant material facts were
concealed. The Petitioner/non-applicant was fully
aware that true facts were not brought
to the notice of the Court. Thus actual fraud has been
established and it is not a case of mere constructive
fraud."
30
In another case in the case of Meghmala and others Vrs. G.
Narasimha Reddy and others : (2010) 8 SCC 383 dealing with a
case involving fraud and an act of conspiracy to take out the right of
others and orders obtained on misrepresentation or playing fraud
upon competent authority. Such order cannot be sustained in the
eye of law. The Hon'ble apex Court in para-28 to 32, para-33, 34, 35
& 36 has held as follows:
"28. -It is settled proposition of law that where an
applicant gets an order/office by making
misrepresentation or playing fraud upon the
competent Authority, such order cannot be sustained
in the eyes of law. "Fraud avoids all judicial acts
ecclesiastical or temporal." (Vide S.P. Chengalvaraya
Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. &
Ors. AIR 1994 SC 853). In Lazarus Estate Ltd. Vs.
Besalay 1956 All. E.R. 349), the Court observed
without equivocation that "no judgment of a Court, no
order of a Minister can be allowed to stand if it has
been obtained by fraud, for fraud unravels everything.
29. In A.P. State Financial Corpn. v. GAR Re-Rolling
Mills [(1994) 2 SCC 647 : AIR 1994 SC 2151] and State
of Maharashtra v. Prabhu [(1994) 2 SCC 481 : 1994
SCC (L&S) 676 : (1994) 27 ATC 116] this Court
observed that a writ court, while exercising its
equitable jurisdiction, should not act as to prevent
perpetration of a legal fraud as the courts are obliged
to do justice by promotion of good faith. "Equity is
always known to defend the law from crafty evasions
and new subtleties invented to evade law."
30. In Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC
534 : AIR 1992 SC 1555] it has been held as under:
(SCC p. 553, para 20)
"20. Fraud and collusion vitiate even the most solemn
proceedings in any civilised system of jurisprudence. It
is a concept descriptive of human conduct."
31. In United India Insurance Co. Ltd. v. Rajendra
Singh [(2000) 3 SCC 581 : 2000 SCC (Cri) 726 : AIR
2000 SC 1165] this Court observed that "Fraud and
justice never dwell together" (fraus et jus nunquam
cohabitant) and it is a pristine maxim which has never
lost its temper over all these centuries.
31
32. The ratio laid down by this Court in various cases
is that dishonesty should not be permitted to bear the
fruit and benefit to the persons who played fraud or
made misrepresentation and in such circumstances
the Court should not perpetuate the fraud.
(See Vizianagaram Social Welfare Residential School
Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 :
1990 SCC (L&S) 520 : (1990) 14 ATC 766] , Union of
India v. M. Bhaskaran [1995 Supp (4) SCC 100 : 1996
SCC (L&S) 162 : (1996) 32 ATC 94] , Kendriya
Vidyalaya Sangathan v. Girdharilal Yadav [(2004) 6
SCC 325 : 2005 SCC (L&S) 785] , State of
Maharashtra v. Ravi Prakash Babulalsing
Parmar [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5]
, Himadri Chemicals Industries Ltd. v. Coal Tar Refining
Co. [(2007) 8 SCC 110 : AIR 2007 SC 2798] and Mohd.
Ibrahim v. State of Bihar [(2009) 8 SCC 751 : (2009) 3
SCC (Cri) 929] .)
33. Fraud is an intrinsic, collateral act, and fraud of
an egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud is an act of
deliberate deception with a design to secure
something, which is otherwise not due. The expression
"fraud" involves two elements, deceit and injury to the
person deceived. It is a cheating intended to get an
advantage. [Vide Vimla (Dr.) v. Delhi Admn. [AIR 1963
SC 1572 : (1963) 2 Cri LJ 434] , Indian
Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC
550] , State of A.P. v. T. Suryachandra Rao [(2005) 6
SCC 149 : AIR 2005 SC 3110] , K.D.
Sharma v. SAIL [(2008) 12 SCC 481] and Central Bank
of India v. Madhulika Guruprasad Dahir [(2008) 13
SCC 170 : (2009) 1 SCC (L&S) 272] .]
34. An act of fraud on court is always viewed
seriously. A collusion or conspiracy with a view to
deprive the rights of the others in relation to a property
would render the transaction void ab initio. Fraud and
deception are synonymous. Although in a given case a
deception may not amount to fraud, fraud is anathema
to all equitable principles and any affair tainted with
fraud cannot be perpetuated or saved by the
application of any equitable doctrine including res
judicata. Fraud is proved when it is shown that a false
representation has been made (i) knowingly, or (ii)
without belief in its truth, or (iii) recklessly, careless
whether it be true or false. Suppression of a material
document would also amount to a fraud on the court.
(Vide S.P. Chengalvaraya Naidu [(1994) 1 SCC 1 : AIR
1994 SC 853] , Gowrishankar v. Joshi Amba Shankar
Family Trust [(1996) 3 SCC 310 : AIR 1996 SC 2202]
32
, Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319]
, Roshan Deen v. Preeti Lal [(2002) 1 SCC 100 : 2002
SCC (L&S) 97 : AIR 2002 SC 33] , Ram Preeti
Yadav v. U.P. Board of High School & Intermediate
Education [(2003) 8 SCC 311 : AIR 2003 SC 4268]
and Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1
: AIR 2004 SC 2836] )
35. In Kinch v. Walcott [1929 AC 482 : 1929 All ER Rep
720 (PC)] it has been held that:
"... mere constructive fraud is not, at all events after
long delay, sufficient but such a judgment will not be
set aside upon mere proof that the judgment was
obtained by perjury".
Thus, detection/discovery of constructive fraud at a
much belated stage may not be sufficient to set aside
the judgment procured by perjury.
36. From the above, it is evident that even in judicial
proceedings, once a fraud is proved, all advantages
gained by playing fraud can be taken away. In such an
eventuality the questions of non-executing of the
statutory remedies or statutory bars like doctrine of
res judicata are not attracted. Suppression of any
material fact/document amounts to a fraud on the
court. Every court has an inherent power to recall its
own order obtained by fraud as the order so obtained
is non est."
19. For the findings of this Court supporting the case of the
Review Petitioner and the catena of decisions taken note
hereinabove, this Court has no hesitation in entertaining the Review
Petition and allowing the same.
20. As a result, this Court interfering with the judgment
dated 27.06.2012 and the decree involved in Miscellaneous Appeal
No.994 of 2001 sets aside the same and for the detailed discussions
made hereinabove, dismissing the Miscellaneous Appeal No.994 of
33
2001 thereby confirming the judgment involving T.A. No.4/17 of
2001/1992, directs the Parties to appear before the Trial Court in
the O.S. No.203 of 1988-I on 19.04.2021. Keeping in view the
direction in T.A. No.4/17 of 2001/1992 the Review Petitioner is
directed to file the additional written statement and additional
documents on the date of appearance itself with service of a copy on
the other side the Plaintiffs. Considering that there is sufficient delay
in the meantime, the Trial Court is also directed to conclude the suit
vide O.S. No.203 of 1988-I as expeditiously as possible, but not later
than six months from the date of this judgment, but however, with
opportunity of further evidence to both sides.
21. The RVWPET Petition succeeds. However, there is no
order as to the cost.
...............................
(Biswanath Rath, J.) Orissa High Court, Cuttack. The 8th day of April, 2021/Ayaskanta Jena, Sr.Steno.