Himachal Pradesh High Court
Surat Ram vs Sudama Ram (Decease Through Lrs) And Ors on 3 January, 2025
1 ( 2025:HHC:574 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No. 148 of 2023 Reserved on: 20.12.2024 Date of Decision: 3rd January 2025 Surat Ram ....Petitioner Versus Sudama Ram (decease through Lrs) and ors.
....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes For the Petitioner : Mr. G.D. Verma, Sr. Advocate with Mr. Sumit Sharma, Advocate.
For Respondents No.1(a) : Mr. R.K. Bawa, Sr. Advocate with Mr
to 1(e) Ajay Kumar Sharma, Advocate.
None for respondents No.1(f) to 1(h).
For respondent No.2 : Mr. Tarun Pathak, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition seeking the review of the judgment and decree dated 21.09.2023 passed by this Court in RSA No. 45 of 2007. It has been asserted that the petitioner raised an objection regarding the tenancy, and this objection was not considered by the Court while deciding the 2 ( 2025:HHC:574 ) appeal. The petitioner claimed that the original mortgagee, Sh.
Surju, under whom he was a tenant during his lifetime, did not dispute the claim of Dhuri regarding the tenancy. This vital point was not considered and adjudicated upon. The plaintiff has no locus standi to dispute the status of the petitioner. The petitioner was found to be in physical possession of the suit land. The plaintiff had made material admissions which were not considered by the Court. The real point of controversy could not be adjudicated without impleading all the legal heirs of the mortgagee, late Sh. Dhuri. The entries in the revenue record were misread. The jamabandi contained long-standing entries regarding the status of Surju as a mortgagee. The plaintiff had not sought a declaration in the suit, and an injunction could not have been issued without a declaration. The grounds of appeal preferred before the learned Appellate Court were not dealt with and determined. The application for the production of additional evidence was wrongly rejected. The vestment of the ownership right upon Dhuri was automatic, and the Civil Court had no jurisdiction to interfere with it. The claim of acquisition of title by adverse possession was raised but was not considered. The judgment was passed by the learned Trial Court against a dead 3 ( 2025:HHC:574 ) person and was a nullity. Wrong conclusions regarding the entry of tenancy of late Dhuri were drawn. The plaintiff did not file any appeal against the judgment and decree passed by the learned Additional District Judge, and the finding recorded by the learned Appellate Court were binding upon him. The Court had committed material irregularities and illegalities as a result of which the judgment and decree are to be reviewed; hence, the petition.
2. I have heard Mr G.D. Verma, learned Senior Counsel assisted by Mr Sumit Sharma, learned counsel for the petitioner, Mr R.K. Bawa, learned Senior Counsel assisted by Mr Ajay Kumar Sharma, learned counsel for respondents No.1(a) to 1(e) and Mr Tarun Pathak, learned Deputy Advocate General, for respondent No.2.
3. Mr G.D. Verma, learned Senior Counsel for the petitioner, submitted that there are various irregularities in the judgment highlighted in the memo of the petition; therefore, he prayed that the present petition be allowed and the judgment and decree passed by this Court be reviewed.
4. Mr. R.K. Bawa, learned Senior Counsel for respondents No.1 (a) to 1(e), submitted that there is no error apparent on the 4 ( 2025:HHC:574 ) face of the record and the scope of the appeal before this Court was confined to substantial questions of law. The points raised in the petition do not pertain to substantial questions of law;
therefore, he prayed that the present petition be dismissed.
5. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
6. The scope of the review was explained by the Hon'ble Supreme Court in State (NCT of Delhi) v. K.L. Rathi Steels Ltd., (2024) 7 SCC 315: 2024 SCC OnLine SC 1090, and it was observed at page 342:
37. Read in conjunction with Section 114CPC, Order 47 Rule 1 thereof has three broad components which need to be satisfied to set the ball for a review in motion -- (i) "who"
means the person applying must demonstrate that he is a person aggrieved; (ii) "when", means the circumstances a review could be sought; and (iii) "why", means the grounds on which a review of the order/decree ought to be made. Finally comes the "what", meaning thereby the order the court may make if it thinks fit. Not much attention is generally required to be paid to components (i) and (ii) because of the overarching difficulties posed by component
(iii). However, in deciding this reference, component (i) would also have a significant role apart from the Explanation inserted by way of an amendment of CPC.
38. Let us now briefly attempt a deeper analysis of the provision. We are conscious that the provisions relating to review have been considered in a catena of decisions, but the special features of these RPs coupled with the fact that 5 ( 2025:HHC:574 ) two Hon'ble Judges of this Court have delivered a split verdict make it imperative for us not to miss any significant aspect.
39. A peep into the legislative history would reveal that Rule 1 of Order 47CPC, which is part of the First Schedule appended thereto, bears a very close resemblance to its predecessor statutes, i.e. Section 623 of the Codes of Civil Procedure of 1877 and 1882. The solitary legislative change brought about in 1976 in Order 47CPC resulted in the insertion of an Explanation at the foot of Rule 1, which is at the heart of the controversy here.
40. The first and foremost condition that is required to be satisfied by a party to invoke the review jurisdiction of the court, whose order or decree, as the case may be, is sought to be reviewed, is that the said party must be someone who is aggrieved by the order/decree.
41. The words "person aggrieved" are found in several statutes; however, the meaning thereof has to be ascertained with reference to the purpose and provisions of the statute. In one sense, the said words could correspond to the requirement of "locus standi" in relation to judicial remedies. The need to ascertain the "locus standi" of a review petitioner could arise if he is not a party to the proceedings but claims the order or decree to have adversely affected his interest. In terms of Order XLVII of the 2013 Rules read with Order 47CPC, a petition for review at the instance of a third party to the proceedings too is maintainable, the quintessence being that he must be aggrieved by a judgment/order passed by this Court. This is what has been held in Union of India v. Nareshkumar Badrikumar Jagad [Union of India v. Nareshkumar Badrikumar Jagad, (2019) 18 SCC 586]. That is, of course, not the case here. Normally, in the context of Rule 1 of Order 47CPC, it is that person (being a party to the proceedings) suffering an adverse order and/or decree who, feeling aggrieved thereby, usually seeks a review of the order/decree on any of the grounds outlined therein. The 6 ( 2025:HHC:574 ) circumstances where a review would lie are spelt out in clauses (a) to (c).
42. Order 47 does not end with the circumstances as Section 114CPC, the substantive provision, does. Review power under Section 114 read with Order 47CPC is available to be exercised, subject to fulfilment of the above conditions, on setting up by the review petitioner any of the following grounds:
(i) discovery of new and important matter or evidence; or
(ii) mistake or error apparent on the face of the record; or
(iii) any other sufficient reason.
43. Insofar as (i) (supra) is concerned, the review petitioner has to show that such evidence (a) was actually available on the date the court made the order/decree, (b) with reasonable care and diligence, it could not be brought by him before the court at the time of the order/decree, (c) it was relevant and material for a decision, and (d) by reason of its absence, a miscarriage of justice has been caused in the sense that had it been produced and considered by the court, the ultimate decision would have been otherwise.
44. Regarding (ii) (supra), the review petitioner has to satisfy the court that the mistake or error committed by it is self-evident and such mistake or error can be pointed out without any long-drawn process of reasoning, and, if such mistake or error is not corrected and is permitted to stand, the same will lead to a failure of justice. There cannot be a fit-in-all definition of "mistake or error apparent on the face of the record", and it has been considered prudent by the courts to determine whether any mistake or error does exist considering the facts of each individual case coming before it.
45. With regard to (iii) (supra), we can do no better than refer to the traditional view in Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112], a 7 ( 2025:HHC:574 ) decision of a Bench of seven Law Lords of the Judicial Committee of the Privy Council. It was held there that the words "any other sufficient reason" means "a reason sufficient on grounds at least analogous to those specified immediately previously", meaning thereby (i) and (ii) (supra). Notably, Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112] has been consistently followed by this Court in a number of decisions starting with Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526].
46. There are recent decisions of this Court which have viewed "mistake" as an independent ground to seek a review. Whether or not such decisions express the correct view need not detain us since the review here is basically prayed in view of the subsequent event.
xxxxx J. Other precedents on review
59. Precedents on the aspect of review are legion, and we do not wish to burden this judgment by tracing all the decisions. However, only a few that were considered in the split verdict, some which were cited by the parties before us and some that have emerged from our research on the subject and are considered relevant, are discussed/referred to here.
60. Two of these decisions, viz. A.C. Estates v. Serajuddin & Co. [A.C. Estates v. Serajuddin & Co., 1965 SCC OnLine SC 295 :
(1966) 1 SCR 235: AIR 1966 SC 935] and Shatrunji v. Mohd. Azmat Azim Khan [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200] were rendered prior to the introduction of the Explanation in Rule 1 of Order 47CPC. Significantly, even without the Explanation, substantially the same view was expressed.
61. In A.C. Estates [A.C. Estates v. Serajuddin & Co., 1965 SCC OnLine SC 295 : (1966) 1 SCR 235: AIR 1966 SC 935], a Bench of three Hon'ble Judges of this Court, while dismissing the 8 ( 2025:HHC:574 ) civil appeal and upholding the order of the High Court of Calcutta, held as follows : (SCC OnLine SC para 16) "16. ... Our attention in this connection is drawn to Section 29(5) of the Act, which gives power to the Controller to review his orders and the conditions laid down under Order 47 of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which exists at the date of the order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao [Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 :
(1899-1900) 27 IA 197] )." (emphasis supplied)
62. The next is the decision of a Bench of two Hon'ble Judges of this Court in Shatrunji [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200] . While dismissing an appeal and upholding the order [Mohd. Azamat Azim Khan v. Shatrunji, 1963 SCC OnLine All 50] of the Allahabad High Court, reference was made to "any other sufficient reason" in Rule 1 of Order 47CPC and the decision in Kotagiri Venkata Subbamma Rao [Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 : (1899-1900) 27 IA 197] whereupon it was held :
(Shatrunji case [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200], SCC pp. 203-204, para 13) "13. ... the principles of review are defined by the Code, and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters 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 the review is asked for on account of some mistake or error apparent on the face of the 9 ( 2025:HHC:574 ) record. In Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao [Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 :
(1899-1900) 27 IA 197] Lord Davey at IA p. 205 of the Report said that 'the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event'." (emphasis supplied)
63. What was laid down in Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741], upon reading Order 47CPC, can be better understood in the words of the Hon'ble Judge authoring the judgment. The relevant passages are quoted hereunder : (SCC pp. 764-65, paras 88-90) "88. ... Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court, which would include a mistake in the nature of the undertaking, may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be 10 ( 2025:HHC:574 ) necessitated by way of invoking the doctrine "actus curiae neminem gravabit"."
In the next paragraph, their Lordships quoted a portion of para 35 from the larger Bench decision in Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] but held that "the said rule is not universal".
64. Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] was followed in Jagmohan Singh v. State of Punjab [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38]. It was held there that Rule 1 of Order 47CPC does not preclude the High Court or a court from taking into consideration any subsequent event and that if imparting justice in a given situation is the goal of the judiciary, the court may take into consideration (of course on rare occasions) the subsequent events.
65. This Court, in para 20 of the decision in Kamlesh Verma v. Mayawati [Kamlesh Verma v. Mayawati, (2013) 8 SCC 320 : (2013) 3 SCC (Civ) 782 : (2013) 4 SCC (Cri) 265 :
(2014) 1 SCC (L&S) 96], after surveying previous authorities and following Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112] and Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] summarised the principles of review and illustrated when a review would be and would not be maintainable. Despite the observation in Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] limiting Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526], Kamlesh Verma [State (NCT of Delhi) v. Kartar Singh, 2016 SCC OnLine SC 1525] thought it fit to agree with the latter decision.
66. Recently, in S. Madhusudhan Reddy v. V. Narayana Reddy [S. Madhusudhan Reddy v. V. Narayana Reddy, (2022) 17 SCC 255: 2022 SCC OnLine SC 1034], a Bench of three Hon'ble Judges has accepted the meaning of the ground "for any other sufficient reason" as explained in Chhajju 11 ( 2025:HHC:574 ) Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112], Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] and Kamlesh Verma [State (NCT of Delhi) v. Kartar Singh, 2016 SCC OnLine SC 1525].
7. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
8. The appeal was admitted on the following substantial questions of law on 30.5.2007:-
1. Whether presumption of correctness is attached to the later entries in revenue record and since entries of possession as a tenant are coming in favour of late Dhuri defendant No.1, continuously till the date of filing of suit in the jamabandi Ex.PA for the year 1990-91 therefore, the claim of the defendant that he was inducted as a tenant stand proved?
2. Whether the findings as recorded on the point of correctness or otherwise of revenue entries by the courts below are wrong because entries in jamabandi for the year 1960-61 vide Ext. D-3 have been made on the basis of order for attestation of jamabandi during the course of proceedings for attestation of Jamabandi;
therefore, a wrong view has been taken that there was not a lawful order in this regards?
3. Whether defendant No.1, late Sh. Dhuri being recorded continuously as a Gair Marusi over suit land since 1960-61 vide jamabandi Ext.D-3, till date of filing of the suit; therefore, presumption of correctness is attached to the later entries, and 12 ( 2025:HHC:574 ) therefore, the deceased Dhuri Ram was a tenant having been inducted by the Mortgagee Sh. Surju?
4. Whether deceased Sh. Surju, the original mortgagee under whom Sh. Dhuri Ram was recorded as a tenant in the year 1960-61 having not challenged entries in the revenue record regarding the status of Sh. Dhuri Ram, as a tenant, therefore, he, as well as his successors, are estopped by their own admissions, correctness of revenue entries?
5. Whether the Courts below having failed to take into consideration the order of collector settlement dated 1.6.2000 as per Ext.D-6 and the fact that the respondent had not challenged this order, therefore, the same is binding upon the parties?
9. It was laid down by the Hon'ble Supreme Court in P. Kishore Kumar v. Vittal K. Patkar, 2023 SCC OnLine SC 1483 that the scope of the second appeal is confined to substantial questions of law and the High Court cannot become the third Court on facts. It was observed:
"29. The first appellate court, having examined the facts in extenso, the High Court ought not to have interfered with the findings rendered therein by virtue of being, in the second appeal, a court of law. As was astutely said by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546, a second appellate court is not expected to conduct a "third trial on facts" or be "one more dice in the gamble." The decision rendered by the first appellate court, not being in violation of the settled position of law, ought not to have been interfered with. With utmost respect to the High Court, we 13 ( 2025:HHC:574 ) are constrained to observe that the question framed by it could be regarded as one of law, if it all, but did not merit the label of a substantial question of law so as to warrant interference with the first appellate decree under section 100 of the CPC."
10. A similar view was taken in Rashmi Kant Vijay Chandra v. Baijnath Choubey & Co., 2024 SCC OnLine SC 2549, wherein it was observed:
"14. This Court in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999) 2 SCC 471, while considering the scope of Section 100 of the CPC, observed:
"10. Having given our anxious consideration to the rival contentions aforesaid, we find ourselves unable to sustain the decision rendered by the learned Single Judge of the High Court for the reasons that follow: It has to be kept in view that the learned Single Judge was exercising jurisdiction under Section 100 CPC as it was amended in 1976. A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal, and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] and Sheel Chand v. Prakash Chand [(1998) 6 SCC 683] that the judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained. On this short ground 14 ( 2025:HHC:574 ) alone, this appeal is required to be allowed."
(Emphasis supplied)
15. This exposition came to be followed by this Court in Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264 wherein after tracing out a catena of judgments on Section 100 of the CPC, it was observed:
"70. Now, after the 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction to interfere under Section 100 CPC only in a case where substantial questions of law are involved, and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law, and then only the High Court is permitted to proceed with the case to decide those questions of law." (Emphasis supplied)
16. While placing reliance on the above observations, this Court in Hardeep Kaur v. Malkiat Kaur (2012) 4 SCC 344 affirmed that it is the duty of the High Court to frame substantial questions of law before hearing an appeal under Section 100 of the CPC and such a second appeal has to be heard and decided on such substantial question of law.
17. More recently, in Kirpa Ram v. Surendra Deo Gaur (2021) 13 SCC 57 and Suresh Lataruji Ramteke v. Sau. Sumanbhai Pandurang Petkar 2023 SCC OnLine SC 1210, it was reiterated that High Courts are required to hear second appeals under Section 100 of the CPC only on the satisfaction that there exists a substantial question of law and the appeal has to be heard on the question so formulated.
11. This position was reiterated in Jaichand v. Sahnulal, 2024 SCC OnLine SC 3864, wherein it was observed:15
( 2025:HHC:574 ) "23. We are thoroughly disappointed with the manner in which the High Court framed the so-called substantial question of law. By any stretch of the imagination, it cannot be termed even a question of law far from being a substantial question of law. How many times the Apex Court should keep explaining the scope of a second appeal under Section 100 of the CPC and how a substantial question of law should be framed? We may once again explain the well-settled principles governing the scope of a second appeal under Section 100 of the CPC.
24. In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166: AIR 1996 SC 3521, it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court.
25. In Kshitisn Chandra Purkait v. Santhosh Kumar Purkait, (1997) 5 SCC 438), this Court held that in the Second Appeal, the High Court should be satisfied that the case involves a substantial question of law and not a mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, (1999) 2 SCC 471, this Court held:--
"Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction under Section 100, CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the Second Appeal and the Second Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained."
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722: AIR 1999 SC 2213 held:--
"The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found 16 ( 2025:HHC:574 ) that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
28. It is thus clear that under Section 100, CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court, which is the final Court of Facts, except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, C.P.C, the High Court has got power to determine the issue of fact. The Section lays down:--
"Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,-
(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."
30. In Bhagwan Sharma v. Bani Ghosh, 1993 Supp (3) SCC 497: AIR 1993 SC 398, this Court held:--
17( 2025:HHC:574 ) "The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court, which was the final court of fact, were vitiated in the eye of law on account of non- consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground, the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with the law after taking into consideration the entire relevant evidence on the records or in the alternative to decide the case finally in accordance with the provisions of Section 103(b). ...... If, in an appropriate case, the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question, and this is possible if only a proper paper book is prepared for the hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence, the ultimate conclusion may go in favour of either party, and it cannot be prejudged."
31. In the case of Hero Vinoth v. Seshammal (2006) 5 SCC 545, this Court explained the concept in the following words:
"It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties. Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled, and there is a mere question of applying those principles, or that the plea raised is 18 ( 2025:HHC:574 ) palpably absurd, the question would not be a substantial question of law."
32. It is not that the High Courts are not well-versed with the principles governing Section 100 of the CPC. It is only the casual and callous approach on the part of the courts to apply the correct principles of law to the facts of the case that leads to the passing of vulnerable orders like the one on hand.
12. None of the points raised in the review petition are covered under the substantial questions of law, and they could not be decided by the High Court while deciding the second appeal.
13. It was wrongly stated in the review petition that the Court had not given any finding on the point that since Surju had not raised any dispute regarding the status of Dhuri, therefore, his legal representatives could not raise such a dispute. The Court had given a finding in Para 38 that there was no evidence to show that Surju was aware of the tenancy during his lifetime. Hence, a positive finding was recorded, and if there is an error in the finding, the remedy of the petitioner is to file an appeal before the Hon'ble Supreme Court instead of filing a review. There is nothing 19 ( 2025:HHC:574 ) on record to show that this finding is not supportable by the evidence; therefore, this plea will not assist the petitioner.
14. The plea regarding the competence of the Civil Court was not raised while admitting the appeal on the substantial questions of law and could not have been adjudicated. The Court had held that entries were changed unauthorizedly, and the changed entries could not be considered. Hence, the grounds raised in the petition for reviewing the judgment do not fall within the scope of substantial questions of law and cannot be adjudicated.
15. Consequently, the present petition fails, and the same is dismissed.
(Rakesh Kainthla) Judge 3rd January, 2025 (saurav pathania)