Madhya Pradesh High Court
Mohd Imaan (Mohd Rumman) vs Chinta Singh on 2 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 2nd OF MAY, 2024
REVIEW PETITION NO.556/2023
BETWEEN:-
MOHD. IMAAN (MOHD. RUMMAN), S/O MOHD. SHAKEEL @
MOHD SAFIQUE R/O AHMEDABAD PALACE, KOHEFIZA,
BHOPAL (M.P.)
.....PETITIONER
(BY SHRI SANJAY AGRAWAL - SENIOR ADVOCATE WITH MS ANKITA SINGH
PARIHAR - ADVOCATE)
AND
1. CHINTA SINGH, S/O. CHANNULAL, AGED ABOUT 30
YEARS, R/O GRAM RATIBADH TEHSIL HUZUR,
DISTRICT BHOPAL (M.P.)
2. S.l.. NOMAAN, S/O NOMAAN GORI R/O NEAR
RIFIKIYASCHOOL, BHOPAL (M.P.)
3. SMT SAIDA BEE, W/O LATE ABID ALI, AGED ABOUT 62
YEARS, R/O H.NO.13, MALIPURA, OEERGATE TAHSIL
HUZUR, DISTRICT BHOPAL (M.P.) (LEGAL HEIR OF
ABEED ALI KHAN)
4. AGHA MOHAMMAD KHAN, S/O. TAUFIQ MOHAMMAN
KHAN, AGED ABOUT 52 YEARS, OCCUPATION
AGRICULTURIST, R/O HOUSE NO.05, OPPOSITE ANMOL
APARTMENT PROFESSOR COLONY, TAHSIL HUZUR,
DISTRICT BHOPAL (M.P.)
5. ALIZA KHAN, D/O AGHA MOHAMMAD KHAN, AGED
ABOUT 23 YEARS, R/O HOUSE NO.05, OPPOSITE ANMOL
2
APARTMENT PROFESSOR COLONY, TAHSIL HUZUR,
DISTRICT BHOPAL (M.P.)
6. AYESHA KHAN, D/O AGHA MOHAMMAD KHAN, AGED
ABOUT 18 YEARS, R/O HOUSE NO.05, OPPOSITE ANMOL
APARTMENT PROFESSOR COLONY, TAHSIL HUZUR,
DISTRICT BHOPAL (M.P.)
7. AIN MOHD. KHAN, S/O AGHA MOHD. KHAN, AGED
ABOUT 15 YEARS, R/O HOUSE NO.05, OPPOSITE ANMOL
APARTMENT PROFESSOR COLONY, TAHSIL HUZUR,
DISTRICT BHOPAL (M.P.)
8. FAUZIA ABID KHAN, D/O LATE ABID ALI, AGED ABOUT
41 YEARS, R/O H.NO.13, MALIPURA, PEERGATE, TAHSIL
HUZUR, DISTRICT BHOPAL (M.P.)
9. SMT FARNAZLFTIKHAR, W/O SAADLFTIKHAR, D/O
LATE ABID ALI, AGED ABOUT 38 YEARS, R/O C-66, KINGS
ROAD, OPPOSITE SAIFIA COLLEGE GATE NO.1,
HOUSING BOARD, KOHEFIZA, TAHSIL HUZUR,
DISTRICT BHOPAL (M.P.)
10. STATE OF MADHYA PRADESH, THROUGH THE
COLLECTOR, BHOPAL DISTRICT BHOPAL (M.P.)
11. MOHAMMAD JAMAL, S/O. MOHAMMAD SHAKEEL, R/O.
AHMEDABAD PALACE, KOHEFIZA, BHOPAL (M.P.)
12. MOHD. SHAAYAN, S/O MOHD. SHAKEEL @ MOHD.
SAFIQUE R/O. AHMEDABAD PALACE, KOHEFIZA,
BHOPAL (M.P.)
13. MOHD. RAFIQ, S/O. MOHD. SHAKEEL @ MOHD.
SAFIQUE, R/O. AHMEDABAD PALACE, KOHEFIZA,
BHOPAL (M.P.)
14. MOHD UMAR, S/O. MOHD. SHAKEEL @ MOHD. SAFIQUE,
R/O. AHMEDABAD PALACE, KOHEFIZA, BHOPAL (M.P.)
15. MOHD. YUSUF, S/O. MOHD. SHAKEEL @ MOHD.
SAFIQUE, R/O. AHMEDABAD PALACE, KOHEFIZA,
BHOPAL (M.P.)
16. MOHD. DANISH, S/O. MOHD. SHAKEEL @ MOHD.
SAFIQUE, R/O. AHMEDABAD PALACE, KOHEFIZA,
BHOPAL (M.P.)
.....RESPONDENTS
3
(NO.1 BY SHRI ASHOK LALWANI - ADVOCATE AND SHRI SIDDHARTH SHARMA
ADVOCATE)
NO.10 BY SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on: 22.04.2024
Pronounced on: 02.05.2024
This petition having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced the following:
ORDER
The matter was finally heard on 22.04.2024 and today the order is being pronounced.
2. By the instant review petition filed under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, the petitioner is seeking recall of judgment dated 13.04.2023 passed in First Appeal No.471/2016 (Chinta Singh and others v. S.L. Nomaan and others).
3. To appreciate the rival legal contentions urged on behalf of the parties, the relevant facts, in a nutshell, are that this review petition has been filed by defendant No.6. Respondent No.1 herein is plaintiff, who had filed a civil suit registered as C.S.No.121-A/2007 in the Court of First Additional District Judge, Bhopal against the review petitioner and respondents Nos.2 to 16. 3.1 The plaintiff had averred that one Sitaram was the owner of the land out of khasra No.1/4/1 (old), corresponding to new Khasra No.1, area 15.78 acres, situated in Village Mahuakheda, Tahsil Huzur, District Bhopal (M.P.), Sitaram had executed a registered power of attorney dated 29.10.1994 in favour of defendant No.1 S.L. Nomaan authorising him to execute sale-deeds in respect of the suit property and 4 was also given certain other powers as mentioned therein. The said power of attorney was subsequently cancelled on 17.03.1998. Even thereafter, defendant No.1 had executed sale-deed in respect of the suit property in favour of defendant No.2 Abid Ali vide registered sale-deed dated 07.04.2000. Thereafter, defendant No.2 had sold the suit property by different registered sale-deeds to defendants No.4 to 10 in the year 2004.
3.2 The plaintiff had also averred in the plaint that after cancellation of power of attorney dated 29.10.1994 vide deed of cancellation dated 17.03.1998, defendant No.1 could not have executed sale-deed in favour of defendant No.2 on the basis of said power of attorney. It is further averred that after death of Sitaram, the plaintiff has become the owner and in possession of the suit property. 3.3 Defendant No.2 had filed his written-statement denying the averments made in the plaint. Defendants No.4 to 10 had filed a joint written-statement and stated that they are the bona fide purchasers of suit land and after execution of registered sale-deeds, they came into possession of the suit property. In the written- statement, it is also stated that their names are recorded in khasra-panchshala as owners and in possession of the suit land which they had purchased by registered sale-deeds.
3.4 The present review-petitioner, who was defendant No.6 had purchased the land out of khasra No.1/2, area 0.850 hectare situated in Village Mahuakheda, Patwari Circle No.35, Tehsil Huzur, District Bhopal (M.P.). Said registered sale-deed was marked as Ex.D/4 and after purchase of the said land, his name was recorded as owner and in possession over the suit land in khasra-panchshala. 3.5 The trial Court after recording the evidence vide judgment and decree dated 27.02.2016 dismissed the plaintiff's suit. The trial Court in its judgment has held that although the power of attorney dated 29.10.1994 was cancelled on 5 17.03.1998, but the intimation of such cancellation was never given to defendant No.1 namely S.L. Nomaan and as such defendant No.1 was unaware of the said cancellation of power of attorney dated 29.10.1994 and that being so, he validly executed the sale-deed dated 07.04.2000 in favour of defendant No.2 Abid Ali. Thereafter, the execution of subsequent sale-deeds by Abid Ali in favour of defendants No.4 to 10 in the year 2004 is also absolutely legal. 3.6 The trial Court has also decided issue No.7 and recorded a specific finding in paragraphs 8 to 12 of its judgment that intimation about the cancellation of power of attorney was not given to defendant No.1. The trial Court has referred Section 208 of Indian Contract Act and held that the plaintiff is not the owner and in possession of the suit land and sale-deed executed either by defendant No.1 in favour of defendant No.2 or the sale-deeds executed by defendant No.2 in favour of defendants No.4 to 10 are legal. It is also observed by the trial Court that defendants No.4 to 10 are bona fide purchasers of the suit property. The trial Court dismissed the suit on the ground that the plaintiff has not claimed the consequential relief of possession and therefore the suit is hit by Section 34 of the Specific Relief Act. A specific finding was recorded that defendants No.4 to 10 are the owners and in possession of the suit land and their names are recorded in khasra-panchshala. The plaintiff did not file any document to show that he was in possession of the suit land nor claimed possession over the land, therefore, the suit is not maintainable in view of Section 34 of Specific Relief Act.
3.7 Being aggrieved by the judgment and decree dated 27.02.2016 passed by the trial Court, the plaintiff filed first appeal before the High Court which got registered as F.A.No.471/2016.
3.8 Said appeal was listed on 06.04.2023 for consideration of two interlocutory applications. Those applications were disposed of by the High Court on 6 the same day and directed for listing of the case for final hearing at motion stage on 13.04.2023. The appeal was heard on 13.04.2023 and on the same day judgment was passed.
4. As per the review-petitioner, the said judgment suffers from legal infirmities which can be considered as error apparent on the face of the record. It was submitted on behalf of the review petitioner that the court did not consider the mandatory provisions of law which were duly considered by the trial Court. The court has also not considered the documents filed by the defendants while passing the impugned judgment. Thus, according to the petitioner, the provisions of law and evidence on record, were completely ignored by the court while delivering the impugned judgment. According to the petitioner, there is specific admission of the plaintiff in his cross-examination that he was not aware about the information as regards cancellation of power of attorney supplied to defendant No.1. No document has been filed so as to establish that the information about the cancellation of power of attorney by Sitaram was supplied to defendant No.1 either by post or by any other means. As per the petitioner, no public notice was published in any of the newspapers about the cancellation of power of attorney. According to learned senior counsel for the petitioner, the trial court after considering the evidence adduced by the parties and also taking aid of Section 208 of the Indian Contract Act and placing reliance on the decision in the case of Janardhan Jaikrishna v. Gangaram Mangalchand AIR 1951 Nagpur 313 and AIR 1971 MP 191 held that in absence of any information about cancellation of power of attorney supplied to defendant No.1, the execution of sale-deed by him in favour of defendant No.2 is absolutely legal and valid. Consequently, the subsequent sale-deeds executed by defendant No.2 in favour of defendants No.4 to 10 are also legal and valid. Shri Agrawal, Senior Advocate submitted that the First Appellate Court did not consider the evidence of plaintiff and 7 also not considered Section 208 of Contract Act in its right perspective. On the contrary, it has been held by the First Appellate Court that the cancellation of power of attorney was a registered document, therefore, presumption is always there about its valid execution. As per Shri Agrawal, the First Appellate Court has travelled on incorrect premise which is mistake apparent on the face of the record. According to him, the issue before the High Court was not that as to whether deed of cancellation of the power of attorney was validly executed or not but issue was whether the information as regards cancellation of power of attorney was given by Sitaram to defendant No.1 or not. Shri Agrawal submitted that the High Court in paragraph 17 of its judgment relied upon the statements of PW-1, PW-2 and PW-3 and recorded the finding that the plaintiff is in actual physical possession of the suit property but did not consider the documents filed by the defendants marked as Ex.D/2 to D/13, the sale-deeds revealing that the possession of the suit property has been delivered to them. The petitioner who was defendant No.6 purchased the property vide registered sale-deed dated 16.03.2004 (Ex.D/4) and his name was recorded in khasra- panchshala as owner and in possession thereof. As per Shri Agrawal, the First Appellate Court relied upon the oral evidence ignoring the documentary evidence. As such, First Appellate Court under misconception of law gave weightage to oral evidence over the documentary evidence whereas law says that in a conflict between oral and documentary evidence, documentary evidence would prevail. Shri Agrawal submitted that the First Appellate Court has also recorded a finding that defendant No.1 remained ex parte who could have objected about the supply of information as regards cancellation of power of attorney and ignored the legal position that the plaintiff was required to prove his own case because in the trial, the plaintiff did not produce any evidence so as to substantiate that information as regards cancellation of power of attorney was given by Sitaram to defendant No.1. Shri Agrawal submitted 8 that indisputably late Sitaram was owner of the suit property and he filed a civil suit bearing No.RCS-163-A/2000 on 22.12.2000 in the Court of X Civil Judge, Class-II, Bhopal for declaration and permanent injunction seeking declaration of sale-deed dated 07.04.2000 which was executed by S.L. Nomaan (defendant No.1) in favour of Abid Ali (defendant No.2) as void on the ground that the power of attorney dated 29.10.1994 was already cancelled on 17.03.1998 and as such sale-deed executed by defendant No.1 in favour of defendant No.2 be declared void and injunction application filed by the plaintiff in the said suit was rejected by the trial Court vide order dated 03.07.2001. The court has also directed for return of plaint under Order VII Rule 10 of CPC to present the same before the competent court having pecuniary jurisdiction, but thereafter Sitaram died on 28.12.2004 and did not file any suit. Shri Agrawal contended that the impugned judgment deserves to be recalled because it suffers from various legal infirmities as the High Court did not consider the mandatory provisions of law and also the judgment of the various Courts on the said point. Shri Agrawal submitted that ignoring the documentary evidence, giving weightage to oral evidence and also interpreting the provisions of Section 208 of the Contract Act in its wrong perspective is a glare example of misconception of law and as such the judgment needs to be reviewed. To reinforce his contentions, Shri Agrawal has placed reliance on the decisions in the case of Pratap Singh and others v. Shiv Ram (2020) 11 SCC 242; Perry Kansagra v. Smriti Madan Kansagra (2019) 20 SCC 753; Inderchand Jain v. Motilal (2009) 14 SCC 663; Board of Control for Cricket in India and another v. Netaji Cricket Club and others (2005) 4 SCC 741; Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704; Kulsekarapatnam Hand-made Match Workers' Co-operative Cottage Industrial Society Ltd. v. Firm Radhelal Lalloolal, Satna and others 1974 ILR 636 and Janardhan Jaikrishna (supra).
95. E-converso, Shri Lalwani, learned counsel appearing for the respondent- plaintiff submitted that the review can be argued only on the grounds as raised in the memo of review petition. He further submitted that Section 208 of Contract Act and finding given by the High Court in this regard that registration of cancellation of power of attorney amounts to public notice and according to him, there is nothing wrong in it and it is not contrary to the provisions of Section 208. Shri Lalwani submitted that if the submissions made on behalf of review-petitioner are considered qua the finding given by the First Appellate Court, it is clear that at the most case can be considered of misconception of fact, but not the misconception of law. Shri Lalwani also submitted that it is the second review which is not permissible under the law because according to him first review was filed by Smt. Najma and that was dismissed by the First Appellate Court. The review earlier decided on an application of the party and the present review filed by the review-petitioner, both are on similar platform and derive power from the power of attorney which was later-on cancelled. Therefore, Shri Lalwani submitted that there is no case of review made out because if finding given by the First Appellate Court is erroneous, the review is not the remedy to recall the said order but that order can be assailed in the appropriate forum. Shri Lalwani has placed reliance on an order passed by the First Appellate court in R.P.No.527/2023 (Smt Najma and others v. Chinta Singh and others) decided on 10.07.2023 and also relied upon an order passed in W.P.No.27842/2019 (Jay Shankar Kapoor v. Bharat Petroleum Corporation Ltd. and others) decided by this Court on 20.09.2021 dismissing the review petition on the ground that even erroneous view taken by the court, does not give power to the court to recall its view because same does not come within the scope of review. Shri Lalwani has also placed reliance on the decisions in the case of Ratanlal v. Bardi Bai and other AIR 2003 MP 248;
10Chandralata Gupta v. Umesh Kumar Sinhal 2012 (2) MPLJ 547; Khoday Distilleries Limited (now known as Khoday India Limited) and Others v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under liquidation) represented by the liquidator (2019) 4 SCC 376; M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi AIR 1980 SC 674; Ramjilal Kulshrestha v. State of M.P. & others 2012(2) JLJ 321 and Lily Thomas, etc. v. Union of India and others (2000) 6 SCC 224.
6. I have patiently heard the submissions of the learned counsel for the rival parties and perused the documents available on record.
7. At first, I feel it expedient to deal with the objection raised about maintainability of second review inasmuch earlier review i.e. R.P.No.527/2023 (Smt. Najma and others v. Chinta Singh and others) has already faced dismissal. As per Shri Lalwani, earlier review-petitioner i.e. Smt. Najma and present review-petitioner i.e. Mohd. Imaan, both have acquired right to appear in the matter in relation to the suit property and both are sailing on the same boat acquiring source of filing review petition by virtue of power of attorney executed on 29.10.1994, therefore, when first review of Smt. Najma was disallowed, there appears no ray of hope for present review-petitioner in second review petition.
Notably, the objection with regard to maintainability of this review petition has been raised saying that second review is not maintainable as earlier review petition has already been decided by this Court vide order dated 06.02.2024. At the very inception, counsel for respondent raised this objection saying that earlier review petition filed by Smt. Najma has already been decided by the court and as such this review petition is not maintainable. Of a further note, the order dated 06.02.2024 rejecting the said objection considered the status of Smt. Najma and others and the ground of rejection was that her interest has been protected by the 11 legal heirs, who were already on record. Ergo, in the light of the order dated 06.02.2024, the objection raised here again is rejected inasmuch as this objection has already been raised and decided earlier. Moreso, it has been informed to this Court that said order was put to test by knocking the doors of the Supreme Court and the Supreme Court refrained to distort that order.
8. Obviously, Shri Agrawal urged that the First Appellate Court in its judgment, which is impugned herein, has considered the scope of Section 208 of the Indian Contract Act and in paragraph 19, has observed that "once a document which has been cancelled by a registered document, it amounts to public notice and no separate publication or intimation is required and no law prescribed such procedure.".
To fathom the depth of such submission, it is imperative to quote the provisions of Section 208 of the Contract Act, as under:-
"208. When termination of agent's authority takes effect as to agent, and as to third persons.-- The termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them.
Illustrations (a)A directs B to sell goods for him, and agrees to give B five per cent. commission on the price fetched by the goods. A afterwards by letter, revokes B's authority. B after the letter is sent, but before he receives it, sells the goods for 100 rupees. The sale is binding on A, and B is entitled to five rupees as his commission.
(b) A, at Madras, by letter directs B to sell for him some cotton lying in a warehouse in Bombay, and afterwards, by letter revokes his authority to sell, and directs B to send the cotton to Madras. B after receiving the second letter, enters into a contract with C, who knows of the first letter, but not of the second for the sale to him of the cotton. C pays B the money, with which B absconds. C's payment is good as against A.
(c)A directs B, his agent, to pay certain money to C. A dies, and D takes out probate to his will. B, after A's death, but before 12 hearing of it, pays the money to C. The payment is good as against D, the executor."
The trial Court has also framed an issue in respect of the information about cancellation of power of attorney whether was conveyed to defendant No.1 by Sitaram, which is also reproduced hereinunder:-
"7- D;k vk{ksfir ikoj vkQ ,VkuhZ fujLrhdj.k fnukaWfdr 17-3-98 dh lwpuk e`rd lhrkjke us izfroknh dzekad 1&,-,y-ukseku dks nh xbZ Fkh ;fn gkW] rks mldk fof/kd izHkko D;k gS\"
This issue has been dealt with by the trial Court from paragraph 8 to 12 in its judgment dated 27.02.2016. As per the finding given by the trial Court, no intimation with regard to cancellation of power of attorney was conveyed to defendant No.1 and thus issue was decided in negative. The trial Court also reproduced the provisions of Section 208 of Indian Contract Act and as such gave finding that the sale-deed executed in favour of defendant No.2 and further sale- deeds executed in favour of defendants No.4 to 10 are legal and valid as they come within the category of bona fide purchasers.
I would fail in my legal obligation, if at this juncture, I do not see the legal position cascading from the fountainhead. The Supreme Court in Perry Kansagra (supra) while considering the scope of review, has observed as under:-
"16. On the other hand, reliance was placed by the respondent on the decision in BCCI v. Netaji Cricket Club to submit that exercise in review would be justified if there be misconception of fact or law."
Further, in Inderchand Jain (supra), the Supreme Court has considered as to under what circumstances application for review lies and observed as under:-
"33. The High Court had rightly noticed the review jurisdiction of the court, which is as under:13
"The law on the subject - exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarized as hereunder:
(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C.
(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may be conceivable be two opinions.
(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an Advocate.
(v) An application for review may be necessitated by way of invoking the doctrine `actus curiae neminem gravabit'.""
(emphasis supplied) Over and above, the Supreme Court in Board of Control for Cricket in India and another v. Netaji Cricket Club (supra) has considered the grounds on which review can be maintained and observed as under:-
"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 is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be 14 necessitated by way of invoking the doctrine "actus curiae neminem gravabit"."
(emphasis supplied) The Division Bench of High Court in Kulsekarapatnam Hand-made Match Workers' Co-operative Cottage Industrial Society Ltd. (supra) has considered the impact of Section 208 of Contract Act and observed as under:-
"As regards the liability of the principal on the agreement of 16th October 1964, there is no manner of doubt that the contract of agency terminated w.e.f. 30th September, 1964, but we are of the view that such termination would not affectt he buyer. So far as third parties are concerned, the law is that the termination of a contract of agency takes effect only from the time the third party obtains knowledge of it. This is clear from section 208 of the contract Act. The principle is also now well settled that a third party is not affected unless he has knowledge of such termination. [See, Janardhan v. Gangaram (1)]. The settlement of 16th October 1964 was prima facie effected by the erstwhile agent in the ordinary course of business as if he were still the agent. The principal allowed him to make that representation and he stood by while the agent agreed to pay Rs.10000/- in full and final settlement of the buyer's claim. We do not think it necessary to go into that vexed question as the decision of ours rests on the original contract and its breach."
In the case of Janardhan Jaikrishna (supra), the High Court of Nagpur has considered the impact of Section 208 of the Contract Act and observed as under:-
"9. It is of course true, as has been held by the lower appellate Court, that in so far as third parties are concerned the termination of a contract of agency will take effect only from the time the third party obtained knowledge of it. That is clear from Section 208 of the Contract Act as well as the decision in Dasarath v.
Brojo Mohan, 18 (C.L.J. 621."
15Taking aid of the above enunciation of law, as per Shri Agrawal, it is a clear-cut case in which mistake apparent on the face of record is committed by the First Appellate Court by showing misconception of law and fact, and not interpreting the provisions of Section 208 and its impact properly.
Seen as a whole, I am of the opinion that the First Appellate Court has utterly misled itself by wrongly interpreting Section 208 of Contract Act and has observed that cancellation of power of attorney is a registered document, by itself amounts to public notice, but law is otherwise and it goes without saying that the trial Court has properly considered this aspect and given its finding. Essentially, the First Appellate Court should have appreciated the said aspect within the four corners of Section 208. Prima facie, I am of the opinion that it is a clear-cut case of misconception of law and fact, both.
9. Adverting to the second aspect as has been raised by Shri Agrawal that the First Appellate Court acted contrary to the documentary evidence showing possession over the land in question, I feel it apposite to see the issue framed in this regard. Indeed, the trial Court has framed a specific additional issue i.e. issue No.4, which is reproduced hereinunder:-
"4- D;k /kkjk 34 fofufnZ"V vuqrks"k vf/kfu;e ds ijarqd ls okn iks"k.kh; gS\"
This issue has been dealt with by the trial Court in paragraph 27 of its judgment and decided it in 'negative' relying upon the documentary evidence whereas the First Appellate Court in its judgment paragraph 17 relied upon oral evidence of PW-1, PW-2 and PW-3 and ignored the documentary evidence and has also not observed as to why the documentary evidence on which the trial Court relied upon had to be ignored.
On mature consideration, I find that it is also a misconception of law. Albeit, Shri Lalwani submitted that the present case is not a case of review because 16 the argument which has been advanced on behalf of the review-petitioner is not in consonance with the grounds raised in the memo of review petition. He tried to point- out the grounds on which review petition has been filed. He has also submitted that the judgment passed by the First Appellate Court can be erroneous and there can be misconception of fact, but that is not the ground for reviewing the order. To reinforce, he relied upon a decision in re Chandrakala Gupta (supra) in which it is observed by the Court that there is distinction between the erroneous decision and the error apparent on the face of the record. According to Shri Lalwani, erroneous decision can be corrected only by the higher forum and it is not a ground of review. Conversely, the learned senior counsel for the petitioner has tried to establish a case that the scope of review is very much available as impugned judgment is based upon misconception of law and fact and as has been discussed above taking aid of enunciation of law by various courts that if misconception of law and fact is apparent, then order can be reviewed. In Khoday Distilleries Limited (supra), the court relied upon view of the Supreme Court in which second review was not permitted, but here in this case, the issue is already decided by the court as to whether this review is maintainable whereas earlier review petition filed by Smt. Najma was dismissed by the court and that order was not disturbed by the Supreme Court and as such this review is maintainable. In Ramjilal (supra) it is observed that review can be argued only on the ground mentioned in the memo of review petition.
I have gone-through the review petition and I find that the grounds raised therein have been argued by the counsel and those ground are being considered here, and not the grounds which are not raised, but argued by the counsel. Indeed, it is specifically pleaded in the review petition that the Court has wrongly interpreted the scope of Section 208 of the Contract Act and proceeded under misconception of law. As such, the memo of review petition contained that the court had given weightage to 17 oral evidence than documentary evidence. Although Shri Agrawal has tried to drag this Court to the extent that suit was not maintainable on behalf of the plaintiff namely Chinta Singh as he did not accrue any right over the property of Sitaram, but that aspect has not been considered by this court for the reason that it is not misconception of law and even that ground is not raised in the memo of review petition, ergo, the grounds raised in the memo of review petition are taken note of by this Court. Furthermore, in Lily Thomas (supra), relied upon by Shri Lalwani, the court has observed that review cannot be treated as an appeal, but this court is exercising the power of review only within the parameters laid by the Supreme Court in number of cases reproduced here-in-before. In Jay Shankar Kapoor (supra), relied upon by Shri Lalwani, the court has observed that if the mistake committed by the court or order passed without considering any material fact, the intervener cannot come-forward and ask to review its order as the court has committed mistake apparent on the face of record. The objection raised by the intervener cannot be green-signaled and review cannot be entertained at his instance.
10. In view of the above discourse, I am of the opinion that this is a fit case in which this court can exercise the power of review as the First Appellate Court decided the appeal and gave finding which suffers from misconception of law and fact. Ergo, the review petition is allowed. The order dated 13.04.2023 passed in F.A.No.471/2016 is hereby recalled. First Appeal is restored to its original number and it be listed for rehearing, which shall be decided afresh in accordance with its own merits.
11. Review Petition stands allowed and disposed of.
(SANJAY DWIVEDI) JUDGE sudesh SUDESH KUMAR SHUKLA 2024.05.03 17:42:40 +05'30'