Calcutta High Court (Appellete Side)
Dilip Kumar Dutta & Anr vs Sanatan Saha & Anr on 28 March, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
R.V.W 265 of 2016
Dilip Kumar Dutta & Anr.
Vs.
Sanatan Saha & Anr.
For the review petitioners : Mr. Gopal Chandra Ghosh
Mr. Sanjib Kumar Mukhopadhyay
Mr. Sunirmal Khanra
Ms. Kalpita Pal
For the opposite parties : Mr. Pradip Kumar Roy
Mr. Shraboni Sarkar
Judgement on : 28.03.2017
Ashis Kumar Chakraborty, J.
This is an application for review of the order dated May 13, 2016 passed by this Court in F.M.A. No. 558 of 2012. By the said order, this Court allowed the appeal filed by the present respondents and set aside the order dated September 15, 2011 passed by the learned Civil Judge (Senior Division), Ghatal in Title Appeal No. 3 of 2009 thereby, allowing the present petitioner, the plaintiffs appellants to amend their plaint filed in Title Suit No. 133 of 2000, setting aside the decree passed by the learned Civil Judge (Junior Division), Ghatal dismissing the suit and remanding the suit to the learned trial Judge.
One of the grounds on which the present respondents, as the appellants in the above appeal, assailed the aforementioned order dated September 15, 2011 was that the learned appellate Court below erred in law in sending back the suit on open remand without interfering with the decree passed by the learned trial Judge on merit, but solely on the ground of allowing the plaintiffs appellants to amend their plaint. The other ground urged by the present respondents in the above appeal before this Court was that in any event, the learned appellate Court below committed an error of law in allowing the plaintiffs, to amend their plaint by incorporating various reliefs which were ex-facie barred by the laws of limitation.
By the said order dated May 13, 2016 this Court upheld both the above grounds of challenge urged by the present respondents, the appellants in the above appeal and set aside the order dated September 15, 2011 passed by the learned first appellate Court below and sent back Title Appeal No. 3 of 2009 to the learned first appellate Court below for disposal on merit, on the basis of the materials on record and if necessary, by allowing the parties to adduce fresh evidence only with regard to the facts arisen subsequent to the decree passed by the learned trial Judge in the suit.
Shorn of unnecessary details, the facts relevant for consideration in this application are that the present petitioners filed Title Suit No. 133 of 2000, before the learned Civil Judge (Junior Division), Ghatal, against the respondents claiming, a declaration that they are the owners and in possession of the "A" schedule of the plaint, (hereinafter referred to as "the suit property") and a decree for permanent injunction restraining the respondents from interfering with their possession of the suit property and from constructing any building at the suit property. In the suit, the petitioner traced their title to the suit property through one Satkari Pal and alleged that their cause of action to file the suit arose on September 12, 2000 when the respondents caused digging of the land of the suit property for constructing a building. The respondents contested the suit, they claimed that they are in possession of the suit property and the suit to be hit by the proviso to Section 34 of the Special Relief Act. The respondents claimed that by a registered conveyance dated May 31, 1961 executed by one Panchkari Pal, Smt. Renukarani Chowdhuri, (hereinafter referred to as "Renukarani") purchased the suit property and thereafter, by a registered conveyance dated October 29, 1999 the latter sold the suit property to them. According to the respondents, there was a mistake in the sale deed executed by Renukarani in their favour, which was subsequently rectified by Renukarani by executing a deed of rectification dated June 18, 2001 and after obtaining the sanctioned plan from the Municipality they sought to commence construction of their building at the suit property owned by them.
During the pendency of the suit before the learned trial Judge, the petitioners amended their plaint by incorporating paragraph 12(a) alleging that Panchkari Pal did not have any right or title in respect of the suit property and he did not sell the suit property to Renukarani, the latter was never in possession of the suit property and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the respondents is fraudulent and void. The petitioners, however, did not incorporate any relief in the pliant challenging the validity of the said deed of rectification dated June 18, 2001 or the deed of conveyance dated October 29, 1999 executed by Renukarani.
After appreciating the evidence adduced by the respective parties, in the judgment dated February 26, 2009 the learned trial Judge found that by virtue of a partition dated May 30, 1969 between Panchkari Pal and his brother Satkari Pal, the suit property was allotted Panchkari Pal, exclusively and the plaintiffs, the present petitioners, could not establish their right, title or interest in respect of the suit property or that they are in possession of the suit property. By a decree dated February 26, 2009 the learned trial Judge dismissed the suit filed by the petitioners. The petitioners challenged the said decree by filing the appeal, being Title Appeal No. 3 of 2009, before the learned first appellate Court below. In the said appeal, on November 11, 2009 the petitioners filed an application for further amendment of their plaint, seeking to incorporate the averments in the plaint that the deed of conveyance executed by Panchkari Pal in favour of Renukarani, conferred no title on Renukarani and consequently the deed of conveyance executed by the latter in favour of the opposite party no. 2 on October 02, 1999 is void ab initio, fraudulent and not binding upon them and that after the learned trial Judge passed the decree dated February 26, 2009, the respondents forcibly encroached on the suit property and started to build a two storied building at the suit property. The petitioners also prayed for amendment in the relief portion of the plaint, by incorporating certain relief to the effect that the deed of conveyance and the deed of rectification executed and registered on October 29, 1999 by Renukarani in favour of the respondent no. 2 is fraudulent, void ab initio and not operative, the deed of rectification dated June 18, 2001 by Renukarani in favour of the respondent no. 2 is fake, fraudulent, bad in the eye of law, void ab- initio and not operative. The petitioners also sought to incorporate the relief for recovery of possession of the suit property and to amend the schedule "A" to the plaint by including the incomplete two storied building. The respondents opposed the said amendment application. By judgment and order dated September 15, 2011 the learned first appellate Court, however, held that the facts sought to be incorporated the petitioners by way of amendment of the plaint are all subsequent facts, allowed the said amendment application and remanded the entire suit to the learned trial Judge for a fresh trial with a direction to frame additional issue, if any, in view of the amended portion of the plaint and decide the suit afresh. The learned appellate Court below allowed the respondents to file additional written statement and granted liberty to the parties to adduce further evidence before the learned trial Judge. The respondents challenged the said order dated September 15, 2011 passed by the learned appellate Court below by filing the first miscellaneous appeal before this Court.
After considering the materials on record and the arguments advanced by the learned advocates of the respective parties, by the judgment and order dated May 13, 2016 this Court held that since the learned appellate Court below decided the amendment application filed by the present petitioners at the time of hearing of the appeal, in view of Section 105(1) of the Code the present respondents, as the appellants could challenge the order allowing the amendment of plaint in the said appeal. This Court found that in the written statement filed in the suit in July, 2002 the respondents had made the averments about the deed of conveyance dated October 29, 1999 executed by Renukarani transferring the suit property to them, as also the execution of the deed of rectification dated June 10, 2001 and based on the said deeds they obtained their names recorded in the revenue records in respect of the suit property, but during pendency of the suit before the learned trial Judge, the petitioners did not seek to amend their plaint to claim any relief challenging the title of Renukarani in respect of the suit property on the basis of her conveyance dated July 15, 1961 executed by Panchkari Pal or the conveyance dated October 29, 1999 or the deed of rectification dated June 18, 2001 executed by Renukarani or the recording of the names of the defendants respondents in respect of the suit property in the revenue records. Considering all the facts of the case, this Court concluded that the prayers of the petitioners made on November 11, 2009 before the learned first appellate Court to claim relief seeking to challenge, either the said deed of conveyance dated October 29, 1999 or the deed of rectification dated June 18, 2001 in favour of the respondents and the recording of the names of the respondents in the revenue records in respect of the suit property were all barred by Articles 113 and 58 of the Limitation Act and the learned first appellate Court fell into an error of law in allowing the application of the petitioners to incorporate the averments and relief in their plaint to challenge the said deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 both executed by the said Renukarani in favour of the defendants respondents, the recording of the names of the defendants fraudulently obtained in the revenue records, in respect of the suit property. This Court held that the said relief sought to be incorporated by the petitioners challenging the deed of conveyance and deed of rectification executed by Renukarani and the recording of the names of the respondents in the revenue records were not all based on any subsequent fact arisen after the passing of the trial Court decree. While arriving at such conclusion, this Court followed the decision of the Supreme Court in the case of Revajeetu Builders and Developers and Narayanswami and Sons and Ors. reported in (2009) 10 SCC 84 (para-63) cited on behalf of the respondents, where it was held that the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of the application. Considering the decision of the Supreme Court in the case of Pankaja and Anr. vs. Yellappa and Ors reported in AIR 2004 SC 4102 relied upon by the present petitioners, this Court held in the said case the Supreme Court allowed the amendment of plaint, as there was an arguable question whether the limitation applicable for seeking relief of declaration on the facts of the said case fell under Article 58 or Articles 64 and 65 of the Limitation Act which had to be decided at the trial of the suit, whereas in the present case, there is no doubt as on the date of filing of the amendment application by the present petitioners the relief sought to be incorporated by them challenging the said deed of conveyance and deed of rectification executed by Renukarani in favour of the respondents and the recording the names of the respondents, in respect of the suit property, in the revenue records before the learned first appellate Court were all hopelessly barred by both the Articles 58 and 113 of the Limitation Act and, therefore, the said decision is of no assistance to the petitioners. This Court found that although in the amendment application the present petitioners claimed that by the proposed amendments they sought to incorporate the events which had taken place subsequent to the judgment and decree passed by the learned trial Judge, but in the schedule of the amendment application, the present petitioners also sought to incorporate the averments and prayers to challenge the said deed of conveyance and the deed of rectification executed by Renukarani in favour of the respondents and recording of the names of the respondents in respect of the suit property in the revenue records. Therefore, this Court held that the prayers of the present petitioners to amend their plaint to incorporate averments and reliefs to challenge the title of Renukarani in respect of the suit property on the basis of the sale deed dated July 15, 1961 executed by Panchkari Pal, the said deed of conveyance and deed of rectification executed by Renukarani in favour of the present respondents and the recording of the names of the respondent in the revenue records without any explanation for such long delay in claiming such relief lacked bona fide.
This Court further held that inasmuch as the learned first appellate Court remanded the entire suit to the learned trial Judge without examining the case on merit the same is violative of the provisions contained in Order XLI Rule 23A of the Code and set aside the said decision.
"For all the foregoing reasons, the present appeal is allowed to the following extent. The application for amendment of the plaint, both in the body and the relief portion, in so far as the same related to the prayers for decrees that the said registered deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the defendants are false, fake, fraudulent, bad in the eye of law, void ab initio and not operative and that the defendants fraudulently obtained their names recorded in the revenue records, in respect of the suit property is rejected. The order passed by the first appellate Court, in so far as the same, allowed the plaintiffs to incorporate the averments in paragraphs 10(a) and 10(b) in the body of the plaint and the relief (A-1) to (A-4) of the plaint, is set aside. It is further directed the amended relief (A-5) to (A-7) and amendment of schedule "A" to the plaint shall have prospective effect from September 15, 2011. The order of remand passed by the learned first appellate Court is also set aside. Title Appeal No. 3 of 2009 is sent back to the learned first appellate Court for disposal of the appeal on merit on the basis of the materials on record and if necessary, by allowing the parties to adduce fresh evidence only with regard to the facts arisen subsequent to the judgment and decree passed by the learned trial Judge in the suit. Considering the facts of the case, the learned first appellate Court is requested to dispose of the appeal as expeditiously as possible, preferably within four months from the date of receipt of the lower Courts records."
Mr. Gopal Chandra Ghosh, learned advocate appearing in support of the present review application submitted that during pendency of the suit before the learned trial Judge, the petitioners had already amended the plaint by incorporating paragraph 12(a) alleging that after execution of the deed of partition dated May 13, 1969, Panchkari Pal did not sell the suit property to Renukarani who was never in possession of the suit property and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the defendants is fraudulent and void and the defendants cannot claim benefit of the said deed of rectification. Therefore, according to him, by no means the amendment of the plaint as was allowed by the learned first appellate Court in this case to incorporate the averments and the relief to challenge registered deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 executed by the said Renukarani in favour of the defendants and the recording the names of the defendants in respect of the suit property, in the revenue records could not be set aside by this Court on the ground that the said relief were already barred by the laws of limitation as on the date of the amendment application. He cited the decision of the Supreme Court in the case of Vineet Kumar vs. Mangal Sain Wadhera reported in AIR 1985 SC 817, where it was held that where the amendment does not constitute an addition of a new cause of action or raises a new case but amounts to no more than adding to the facts already on record, the amendment would be allowed even after the statutory period of limitation. Reliance was also placed on the decision of the Supreme Court in the case of Pankaja and Anr. vs. Yellappa reported in AIR 2004 SC 4102. It was urged that in any event, in view of the averments already incorporated in paragraph 12A of the plaint before the trial of the suit, under the expression "other relief" as contained in Order 7 Rule 7 of the Code, even without amending the relief portion of the plaint the learned Courts below could grant relief to the present petitioner declaring the said deeds executed by Renukarani in favour of the respondents and the recording of the names of the respondents, in respect of the suit property, in the revenue records being void, ab- initio and not operative. In this regard, Mr. Ghosh cited a decision of a learned Single Judge of the Orissa High Court reported in Chennaru Naghbhusan Rao vs. M. Rama Rao & Ors. reported in AIR 1992 Orissa 76. It was strongly urged on behalf of the petitioners that in the instant case, the said order dated May 13, 2016 passed by this Court setting aside the order dated September 15, 2011 passed by the learned first appellate Court in so far as the same allowed the amendment of the plaint, both in the body and the relief portion, challenging the said registered deed of conveyance dated October 29, 1999 and the deed of rectification dated June 11, 2001 executed by Renukarani in favour of the respondents and the recording the respondents' names, in respect of the suit property, in the revenue records is vitiated by an error of law which is apparent on the face of the record.
On the other hand, Mr. Pradip Roy, learned advocate appearing for the respondents raised a serious objection with regard to the maintainability of the present review application. He urged that the said judgment and order dated May 13, 2006 passed by this Court suffers from no infirmity of law. According to him, in any event, there is a clear distinction between an erroneous decision and an error apparent on the face of the record which is a ground for review of a judgment under Order 47 Rule 1 of the Code and in the instant case by no means it can be said that while passing the order dated May 13, 2016 this Court committed any error of law which the apparent on the face of the record. He submitted at the time of hearing of the appeal before this Court the present petitioners made out no case to sustain the order of the learned appellate Court below by invoking the provisions contained in Order 7 Rule 7 of the Code. Mr. Roy strenuously contended that the petitioners have filed the present review application in abuse of process of the Court, with the sole intention to reargue the appeal and to delay the disposal of the appeal by the learned first appellate Court below directed by this Court in the said order dated May 13, 2016. On these grounds, it was urged on behalf of the respondents that this Court should reject the review application of the petitioners which is devoid of any merit.
I have considered the judgment and order dated May 13, 2016 passed by this Court, as well as the arguments advanced by the learned advocates appearing for the respective parties. In the present case, the only ground on which the petitioners have sought for review of the order dated May 13, 2016 passed by this Court alleging that the decision of this Court setting aside the order dated September 15, 2011 passed by the learned appellate Court below allowing amendment of the plaint, both in the body and the relief portion, in so far as the same related to the relief challenging the said registered deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the present respondents recording the names of the respondents, in respect of the suit property, in the revenue records is vitiated by an error of law which is apparent on the face of the record. No other ground has been urged by the petitioners for review of the said order dated May 13, 2016 passed by this Court.
It is settled law that a party may apply for review of an order/decree passed by a Court if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise power of review under Order 47 Rule 1 of the Code. It is also well settled that in exercise of jurisdiction under Order 47 Rule 1 of the Code, it is not permissible for an erroneous decision to be reheard and corrected and the power of the Court to review its judgment cannot be allowed to be "an appeal in disguise". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of review jurisdiction. Even an erroneous decision cannot be a ground for the Court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. This view is fortified by the decisions of the Supreme Court in the cases of Parsion Devi vs. Sumitri Devi reported in (1997) 8 SCC 715, Rajendra Kumar vs. Rambhai reported in AIR 2003 SC 2095 and State of West Bengal vs. Kamal Sengupta reported in (2008) 8 SCC 612.
In the light of the above settled principle of law, let us consider whether the case made out by the present petitioners in this case fulfils the ground of review under Order 47 Rule 1 of the Code that the order passed by this Court on May 13, 2016 is vitiated by any error apparent on the face of the record. As already discussed above, while arriving at the finding that as on date of filing of the amendment application before the learned first appellate Court, that is, on November 11, 2009 the relief sought to be incorporated by the plaintiffs in their plaint to challenge the said deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the respondents, as well as the recording of the names of the respondents, in respect of the suit property, in the revenue records were not any event subsequent to the decree passed by the learned trial Judge, the said relief were all hopelessly barred by limitation and the learned first appellate Court erred in law in allowing the said amendment application, this Court had considered all the submissions advanced by the learned advocates appearing for the respective parties, as well as the decisions cited by them, including the decision of the Supreme Court in the case of Pankaja & another (supra) cited by Mr. Ghosh in this review application. During the course of hearing of the first miscellaneous appeal by this Court, no argument was advanced on behalf of the present petitioners that only in view of the facts already pleaded in paragraph 12A of the plaint they were entitled to obtain relief in the suit to the effect that the said conveyance as well as deed of rectification executed by Renukarani is fraudulent, void ab initio and not operative and the respondents fraudulently recorded their names mutated in the revenue records, under Order 7 Rule 7 of the Code and the same was a new argument advanced by the petitioners in this review application. Therefore, on the basis this new ground urged in this review application the petitioners' present review application is not maintainable and, as such, I refrain from dealing with the decision of a learned Single Judge of Orissa High Court in the case of Chennaru Naghbhusan Rao (supra).
So far as the decision in the case of Vineet Kumar (supra) cited by the petitioners, in the said case Supreme Court allowed the amendment of the written statement by the defendant tenant seeking to take an additional ground of defence to protect his tenancy in respect of the suit property based on the new Rent Act, which became applicable to the suit property during the pendency of the litigation. It is settled law that a decision is an authority for which it decided and not what can logically be deduced therefrom. A little difference in the facts makes a lot of difference in the precedential value of the decisions. In this regard, profitable reference may be made to the decisions of the Supreme Court in the case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. reported in (2003) 2 SCC 111 and in the case of Dr. Subramanian Swamy vs. State of Tamil Nadu reported in (2014) 5 SCC 75. Therefore, in facts of the present case, the decision of the Supreme Court in the case of Vineet Kumar (supra) has no application in the present case.
In the facts of this case as discussed above, it is evident that the petitioners have not been able to substantiate any error of law in the said judgment and order dated May 13, 2016 which is apparent on the face of the record. On the contrary, I find substance in the contention raised on behalf of the present respondents that by urging the aforementioned grounds, the present petitioners sought to reargue the appeal which was disposed of by this Court by the order dated May 13, 2016.
For all the foregoing reasons, I find the present review application to be not maintainable. Accordingly, the review application, R.V.W. 265 of 2016 is dismissed.
However, there shall be no order as to costs.
If, in the meantime, Title Appeal No. 3 of 2009 has not been disposed of, the learned Court below will dispose of the same expeditiously, preferably within a period of four months from the date of communication of this order.
Let, urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
[Ashis Kumar Chakraborty, J.]