Patna High Court - Orders
Jamaluddin @ Salahuddin Ansari vs Nagendra Kumar Gami & Ors. on 9 September, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court C. REV. No.116 of 2013 (8) dt.09-09-2014
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Review No.116 of 2013
In
First Appeal No. 76 of 1972
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Md. Safiruddin
.... .... Petitioner/s
Versus
Md. Mohiuddin & Ors.
.... .... Respondent/s
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With
Civil Review No.122 of 2013
IN
First Appeal No. 76 of 1972
======================================================
Jamaluddin @ Salahuddin Ansari
.... .... Petitioner/s
Versus
Nagendra Kumar Gami & Ors.
.... .... Respondent/s
======================================================
Appearance :
(In C. REV. No.116 of 2013)
For the Petitioner/s : Mr.
For the Respondent/s : Mr.
(In C. REV. No.122 of 2013)
For the Petitioner/s : Mr.
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
ORAL ORDER
8 09-09-20141. Heard the learned counsel, Mr. Kundan Bahadur Singh for the petitioner in Civil Review No.116 of 2013 and the learned counsel, Mr. Najeeb Ahmad for the petitioner in Civil Review No.122 of 2013.
2. The Civil Review No.116 of 2013 has been filed by the respondent no.11(d) in the First Appeal whereas Civil Review No.122 of 2013 has been filed by the respondent no.11(c) Patna High Court C. REV. No.116 of 2013 (8) dt.09-09-2014 2 in the First Appeal against the judgment of this Court dated 19.02.2013.
3. It appears that plaintiffs-appellants of the First Appeal had filed partition suit claiming his share in the suit property. The plaintiff's suit was dismissed. At paragraph 16, the court below in the judgment challenged before the first appellate court declared the title of defendant no.9. In the First Appeal filed by the plaintiff, a cross-objection was filed by defendant no.1. The First Appeal was dismissed for default and thereafter, the cross-objection was heard and by the judgment dated 19.02.2013, that part of the observation made by the court below in paragraph 16 of the judgment was set aside holding that the inter se dispute between the defendant no.1 and 9 could not have been decided by the trial court particularly when the plaintiff's suit for partition was dismissed. It may be mentioned here that the defendant no.1 was claiming on the basis of inheritance and the defendant no.9, who was subsequently added under Order I Rule 10(2) C.P.C. was claiming to have purchased the property. It further appears that at the time of hearing of the cross-objection, since the appeal has already been dismissed, nobody appeared on behalf of the appellants. The respondent no.11(d) who is petitioner in Civil Review No.116 of 2013 did not participate in the hearing of the Patna High Court C. REV. No.116 of 2013 (8) dt.09-09-2014 3 cross-objection. So far the petitioner in Civil Review No.122 of 2013 is concerned, he had only participated and the learned senior counsel, Mr. Keshav Srivastava appeared on his behalf in the cross-objection. After hearing both the parties at length i.e. the cross-objector who is respondent no.1 in the First Appeal and the respondent no.11(c) and also the respondent no.9, the judgment was passed by this Court.
4. Mainly the learned counsels for the petitioners submitted that in a partition suit, the position is different, therefore, the judgment followed by this Court in the case of Mahanth Dhangir vs. Mahanth Mohan, 1987(Suppl.) Supreme Court Cases 528 and in the case of Kasturi v. Iyyamperumal, (2005) 6 Supreme Court Cases 733 is not applicable but this Court in the judgment dated 19.02.2013 wrongly followed the said decisions of the Hon'ble Supreme Court and has passed the wrong judgment. Besides the above, the learned counsel, Mr. Kundan Bahadur Singh submitted that in subsequent suit, the title of the petitioner of the Review Application No.116 of 2013 has also been declared. Except these questions, no other point has been raised.
5. Perused the judgment dated 19.02.2013.
Admittedly, the defendant no.9 who was respondent no.11 in the First Appeal was added subsequently under Order I Rule 10(2) of Patna High Court C. REV. No.116 of 2013 (8) dt.09-09-2014 4 the C.P.C. The said defendant no.9-respondent no.11 was substituted by his legal representatives in the High Court after his death. It is also admitted fact that the plaintiff's First Appeal was dismissed for default and thereafter the cross-objection which was between the defendants inter se was decided by this Court following the decisions of the Hon'ble Supreme Court. In my opinion, therefore, the point raised by the learned counsels for the petitioner that the judgment passed by this Court is wrong because of following of decisions of the Hon'ble Supreme Court, which are not applicable, is not a ground for review. It is settled principles of law that the courts have the jurisdiction to review the order or the judgment only and only if the points raised by the petitioners are within the four corners of the provision as contained in Order 47 Rule 1 of the C.P.C.
6. In view of the above facts and circumstances of the case, in my opinion, the points raised by the petitioners are not at all the questions for consideration for review of the judgment. None of the petitioners have been able to show any error apparent on the face of the record. Accordingly, these review applications are dismissed.
(Mungeshwar Sahoo, J) Saurabh/-
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